WolfeNotes.com

COAH Repeal Ignored Environmental Protections

Proposed Legislation Would Mandate That Some Environmental Features Be Considered

Yesterday, Senate Environment Committee Chairman Bob Smith and Senator McKeon introduced a bill (S3065) that is purported to:

Excludes environmentally sensitive and flood-prone land from designation as vacant or available for purposes of affordable housing construction.

It is a flawed and poorly crafted bill that would merely eliminate any mandate to build affordable housing on some environmentally sensitive lands.

It would not block towns from building affordable housing on those lands.

The language to identify environmentally sensitive lands is vague, limited, and confusing as well. The Pinelands and Coastal Zone are not specifically included. The Highlands Preservation Area is, but the Planning Area only gets partial protections in certain voluntary “conforming” towns.

Category One Stream buffers, vernal ponds and buffers, intact forests, steep slopes, T&E habitat, prime soils and agricultural lands, well head protection areas, aquifer recharge areas, the capacity of water supply and wastewater treatment infrastructure, and other environmentally sensitive features are not specifically included.

The bill excludes “regulated” lands. But that broad term is seemingly working at cross purposes to the narrow specific excluded lands. The broad exclusion of lands that are “regulated” opens a can of worms: DEP “regulates” a LOT more land than the bill contemplates, including the coastal zone, sewer service areas, septic service areas, brownfields, or just about every acre of land in the state.

In addition to the flaws and poor drafting, the bill seems intended to fix a major flaw in the recent COAH repeal legislation. (see:

• Proposed Affordable Housing “Reform” Bill Ignores Land Use Planning And Environmental Considerations

Curiously, both Senators voted YES in support of the COAH repeal legislation (see the Roll Call votes).

But that COAH repeal law did not require protections for environmentally sensitive lands!

In a February 13, 2024 NJ Spotlight Op-Ed, my friend, attorney Bill Potter warned exactly about these major flaws in the subsequently enacted COAH repeal bill:

Most troubling of all, the 76-page bill does not so much as mention the municipal mandates to protect the environment in all its many features and human impacts:

• Freshwater wetlands, preservation of natural stream buffers, no-build flood-prone areas, wooded hillsides and steep slopes, as well as such perennial hot topics in land use disputes as controlling stormwater runoff (sure to increase with global warming), traffic impacts, sewerage capacity and water supply, all are given short — if any — shrift in Sen. Singleton’s omnibus legislation.

The Supreme Court in each Mount Laurel decision eloquently described various environmental limitations to the allocation of affordable housing obligations. For example, “They do not extend to those areas where the State Plan discourages growth — namely open spaces, rural areas, prime farmland, conservation areas, limited growth areas, parts of the Pinelands and Coastal Zone areas” among others.

Section 6(b)(4) of S-50 does contain the “land capacity factor … which shall be determined … by estimating the area of developable land in the municipal boundaries that may accommodate development through the use of the land cover data most recently published by the [DEP] and weighing the factors based on the land area type in which such land is located… ”

How’s that? Apparently, this boils down to “the land capacity for affordable housing is the area of land suitable for such development,” a perfect tautology! Is this intended to substitute for the explicit environmental limitations that run throughout the Mount Laurel decisions — as guardrails against what the Court refers to as simply “bad planning?”

Protecting the environment through “sound land use planning” is the oft forgotten twin pillar of the “Mount Laurel Doctrine” — as writ large in Mount Laurel II, 40 years ago. The justices embraced the overarching principle that municipalities have both obligations in their land use plans — they must protect our environment while they also provide a “realistic opportunity” for constructing or rehabilitating much-needed housing for those who need it most.

What explains Smith and McKeon’s vote in SUPPORT of the flawed COAH repeal bill and sponsorship of a bill to correct those flaws just weeks later?

Why didn’t they both fight for floor amendments to the COAH repeal bill if they really wanted to protect the environment?

What the hell is going on here?

Is this just more Trenton Earth Day Kabuki?

EPA Announces Upcoming 2024 PFAS Investigation in Soil

Former Mayor Seeks To Block Release Of EPA Report Prior To Meeting

(Caption: Curtis Specialty Papers Superfund Site on Delaware River, Milford Borough, NJ. Old photo – Buildings have been demolished)

Tonight, the EPA will brief the Milford Borough Community Advisory Group (CAG) in Milford on the status of the cleanup of the Curtis Specialty Papers Superfund site along a Wild And Scenic stretch of the Delaware River.

In an unusual move, the meeting agenda includes opening remarks by Nick Henry, Aide to Rep. Thomas Kean, Jr.

It’s been 3 years since the EPA CAG agenda included PFAS “forever chemicals”, which EPA found at very high levels at the site.

I’ve been critical of EPA’s failure to include PFAS chemicals in the cleanup at the site.

I requested that EPA re-open the remedial investigation, formally consult with US Fish and Wildlife Service, and mandate cleanup, see:

• PFAS “Forever Chemicals” Found In Groundwater at Over 900 TIMES NJ DEP Standards At Curtis Specialty Superfund Site Along The Delaware River

• US EPA Urged To Re-Open The Remedial Investigation And Mandate Cleanup of PFAS “Forever Chemicals” Found At Curtis Specialty Papers Superfund Site In Milford NJ

The off site sampling of the Delaware river, sediments, and biota (fish, birds, etc) has been limited, thus, given the river’s Wild and Scenic designation, consultation with US FWS is particularly important.

Last I can recall, the EPA was investigating but had not mandated the cleanup of PFAS. It seems like the new 2024 sampling will be limited to soil.

Yesterday, when I received the meeting agenda via email from EPA, I noticed that it included an update on PFAS cleanup. So, I immediately sent EPA a request to provide EPA reports to be discussed:

Hi Pat – could you send me this Agenda document so I can be prepared at the meeting to ask informed questions:

“Summary of Previous PFAS Investigations”

The former Mayor immediately responded to EPA shut that down and in the process he attacked me personally, see:

On 04/08/2024 1:23 PM EDT Henri Schepens <schepensmilfordboro@gmail.com> wrote:

Mr Wolfe,

Why the need to send a reply all? This meeting is for Milford residents to get updated project information on the site. It  is NOT intended to be a soapbox for you to sharpshoot the presentation and agitate the audience as you have done in past meetings.

Henri Schepens

Thus far, EPA has failed to even respond to that request and has not provided the documents I requested, so it looks like EPA is listening to local political arguments.

My reply to Henri Schepens sheds light of the motives operating among some locals:

Henri – The meeting is NOT intended only for Milford residents. It is a US EPA meeting to brief the public on the activities of the federal government.

Your “outside agitator” mentality is, frankly, not only factually in error, but un-American.

I have voiced fact, science, and law based criticism of EPA’s actions at the site. I am an expert with over 40 years of professional experience, not a “sharpshooter” and I use the public arena to inform residents, on a pro-bono basis.

A rational person would assume that residents and local officials would appreciate that kind of independent accountability oriented professional assistance, which is motivated by protection of public health and the environment of your community and residents.

In contrast, some local officials and residents have explicitly voiced concerns for economic development and property taxes. One would think that those views would be rejected as inappropriate to the policy approach to cleanup of a toxic waste site.

Those are the kind of priorities that lead to the tragedies we’ve seen at this site. (including a preventable accidental death we warned about years ago).

I take strong offense to your ad hominem and false and defamatory remarks and offer a chance for you to withdraw them and apologize.

Wolfe

So, if any readers have the time, the meeting tonight is at 6:30 pm, in the Milford Borough firehouse.

Little Done 6 Years Into The Murphy Administration

Christie Regulatory Rollbacks Remain

Bend Over, Earth Day Is Coming

The NJ environmental community just released the most false praise of and groveling before Governor Murphy and his flaccid DEP in NJ history. Read it and weep:

Dear Governor Murphy,

Over the past seven years of your administration, New Jersey has made remarkable progress in becoming a national leader on environmental and climate action.

Never before has a Governor who has done so little on the environment received so much praise.

Never before – including the Whitman and Christie DEP’s – has DEP done so little on the regulatory front and so much on the press office public relations front.

There is an easy to understand and accurate barometer to measure that failure right on DEP’s own website.

Just look at the DEP Rule Re-adoption Without Change page.

Regulations expire every 5 – 7 years. The expiration is intended to provide an opportunity of continuous improvement, as science and conditions change and lessons are learned about flaws in the regulations. But DEP may readopt without changes to maintain the status quo.

The Murphy DEP has readopted 51 regulations without change, including 8 years of Christie DEP rollbacks.

The pro-business and strongly ideologically anti-regulatory Christie DEP rolled back protections in freshwater wetlands rules, and forestry and public access to the coast and rivers and landfill closure and flooding and Highlands protection and sewer plants and clean water and stormwater management and private site cleanup and coastal zone management  and a broad waiver post Sandy and toxic cleanup program and septic systems a broad waiver of regulations and Green Acres and OPRA public records  and drinking water and phosphorus (water quality) and water pollution and rocket fuel in drinking water (and other unregulated chemicals).

Get that? By re-adopting all these regulations without change, the Murphy DEP has approved of all these Christie DEP rollbacks.

In addition, the Christie budgets slashed DEP funding and staffing, Christie Executive Orders rolled back DEP’s discretionary power and abolished programs and institutions, the Christie DEP failed to act on numerous fronts, e.g. land use, air and water quality, chemical safety (TCPA an RTK), etc and even blocked the Drinking Water Quality Institute from meeting for several years.

Christie DEP settled billion dollar Natural Resource Damage (NRD) lawsuits for pennies on the dollar.

The Murphy DEP has maintained that pro-corporate practice (e.g. see BASF and American Cyanamid deals) and done nothing to strengthen the NRD program to improve DEP’s legal leverage and avoid having to settle for peanuts.

Six YEARS into the Murphy Administration, and NONE of this dismantling and rollbacks have been restored and strengthened by the Murphy administration. One Murphy Executive Order on regulatory policy may even make Christie’s policy even worse.

Revealing a similar pattern, the Murphy DEP adopted just 13 new regulations. Most of them were either required by federal EPA, were minor rules, or were weak efforts that are full of loopholes.

Some were even supported by the chemical industry. The DEP even openly admits this in a response to the Chemistry Council:

In recent years, the Department has streamlined the risk assessment process for air permits by providing the regulated community with a simple-to-use Risk Screening Worksheet (Worksheet) (http://www.nj.gov/dep/aqpp/risk.html). The use of this Worksheet eliminates the need to perform refined air quality modeling for a significant number of permittees. If the facility has the potential to emit one or multiple HAPs, the Worksheet can assess risk at the same time for multiple HAPs. Similarly, when a permittee runs an air quality model for the refined risk assessment for one pollutant, the permittee can use the same run for multiple pollutants.

Notice that DEP did not mandate cumulative risk assessments for multiple hazardous pollutants, or require consideration of undue burdens and health vulnerabilities of at risk environmental justice communities, or establish stricter modeling and air monitoring, particularly in urban areas where schools and people live in close proximity to toxic polluters.

They did just the OPPOSITE and made them weaker.

Yet the current Director of Sierra Club, NJ Chapter recently testified to the Senate Environment Committee and claimed, paraphrase, “as a former DEP employee, I can assure the Committee that DEP has strict hazardous air pollution requirements”!!! 

The Murphy DEP’s highly touted signal accomplishments on the regulatory front – e.g. rejoining RGGI, CO2 emissions rules for a handful or power plants, environmental justice, “forever chemical”, and inland flooding rules – are full of loopholes and will have little or no impact on current greenhouse gas emissions and levels of pollution in EJ communities (see above HAP regulation).

The flood rules were obsolete before they were even proposed, because they relied on the outdated 100 year flood and rainfall events.

The “forever chemicals” rule just exposed DEP’s failure to regulate hundreds of currently unregulated chemical and mandate state of the art treatment for drinking water to remove these chemicals.

Finally, the Christie DEP was led by a former corporate consultant from Accenture, Bob Martin. Martin did his corporate consulting in Europe with European players.

The Murphy DEP is even worse, led by Shawn LaTourette, a former corporate lawyer who represented some of NJ’s worst corporate polluters. He has gross conflicts of interest right here in NJ.

Yet while Bob Martin was criticized as too pro-business, there has not been a peep of criticism of Shawn LaTourette, just the opposite. Gov. Murphy even had the balls to call LaTourette an “Erin Brokovich” public interest lawyer, a disgusting lie that went unchallenged by the press or environmental groups.

Not surprisingly, DEP’s failure to act and maintain continuity with the Christie DEP has led to an explosion of warehouse developments, further loss of the few remaining acres of forests and farms, stagnation on the water quality front as global warming drives even worse outbreaks of harmful algae blooms, and greenhouse gas emissions and energy consumption and vehicle miles traveled are all increasing. Bears are being slaughtered. Loggers continue to manage NJ forests. The solar industry is declining and off shore wind is off track. The Energy Master Plan is in shambles. Electrification of buildings is stalled. I could go on but won’t.

[Update: A long time Trenton observer sent me this note:

Murphy is  worse then Christie – DEP budget is lower and has significantly less staff -bigger backlog of park repair – Turnpike widenings  Murphy further weakened storm water rules was even criticized by Trump fema – more roll backs or weaken of clean up rules – more privatization- sprawl is back – ~~~ end update]

 In conclusion, it is obvious why this lame letter was released right now.

We are two weeks from Earth Day.

The DEP will make an Earth Day announcement, enviro’s will praise it and declare victory. They’ll take the press clips to their Foundation donors as evidence of success.

The press will  write glowing headlines and stories.

And nothing will change.

[End Note: The NJ Spotlight story URL gives the game away. The letter was organized by corporate friendly anti-regulatory Coalition for the Delaware River Watershed. More on exactly who they are coming soon. A teaser: (note: this post is old and the primary subject mater is no longer accurate):

I just learned that NJ League of Conservation Voters, NJ Audubon, and NJ Conservation Foundation (they are pathetic cheerleaders, along with their $100 million Wm. Penn Foundation created faux grassroots fundraising focused front group The Coalition for the Delaware Watershed) are doing a public event with the DRBC.

DEP Waived Compliance With Stream Buffer, Water Quality, Flood, & Stormwater Regulations

In A Historic First, DEP OK’d A Parking Lot Over Massive Septic System

Project Is By Politically Wired Kushner Companies And Langan Engineering

A massive 71,250 gallon per day novel septic system under a parking lot, along a tributary to a reservoir.

What could go wrong?

The Murphy DEP likes to issue self serving press releases stressing the “Historic” nature of their actions: historic first gay Commissioner; historic environmental justice law; historic off shore wind program et cetera.

But you won’t see any press releases from DEP announcing a truly historically bad approval of a massive housing project – 360 units, with 700 parking spaces – known as Colts Neck Manor.

In order to issue that historic approval, DEP had to waive and bend beyond recognition a series of water resource, wetlands, stormwater, and C1 stream buffer regulations.

Wonks can read the DEP approval document’s response to hundreds of public comments opposing the project for all the gory details.

The project is located along the Category One designated Yellow Brook (“exceptional water supply significance”), a tributary to the Swimming River Reservoir that serves over 350,000 people in Monmouth County. DEP waived the 300 foot buffer protections along the Brook, putting the water supply of 350,000 people at risk. DEP issued: (@ page 5)

a hardship exception for proposed construction activities within the 300-foot riparian zone. … the permit allows for 3.34 acres of riparian zone vegetation to be permanently disturbed

Kushner Companies has a hardship? Are you kidding me?

An opponent of the project explained the implications of that: @ p.28 – 29)

28. COMMENT: New information included in the proposed NJPDES-DGW permit reveals that the “clear” effluent from the Amphidrome Treatment Plant proposed for the Colts Neck Manor site WILL contain Fecal Coliform Bacteria above the DEP compliance threshold. The effluent could additionally contain a variety of toxic and carcinogenic chemicals to be released into disposal fields on-site and allowed to enter the groundwater and the aquifer below. When this material, including Fecal Coliform Bacteria, is intercepted by groundwater layers, which flow toward Yellow Brook, then these toxins will migrate into Yellow Brook and flow directly to the Swimming River Reservoir, along with other stormwater contaminants entering Yellow Brook and the Reservoir.

In the 1970’s and ’80’s, DEP approved a bunch of small on site wastewater management systems. Many of those systems failed to operate properly, were poorly maintained by the developer (who abandoned them and walked away, leaving homeowners holding the bag) and polluted steams and groundwater.

DEP is repeating those errors by approving this novel and massive underground septic scheme.

There are regulated freshwater wetlands on site and adjacent to the Brook. DEP rules prohibit approval of a sewer service area that includes wetlands. But, DEP issued another historic bending of the wetlands and WQMP rules to approve the project. Check this out:

The Department determined that there are wetlands located on the proposed project site based on the “Wetlands 2012” GIS data layer, in accordance with N.J.A.C. 7:15-4.4(e)4; however, pursuant to N.J.A.C. 7:15-4.4(j)3, the applicant provided a Freshwater Wetlands Letter of Interpretation (LOI)/ Line Verification (File #1309-02-0008.1/FWW140001) confirming that there are no wetlands within the sewer service area.

The DEP issued another historic approval of a novel septic system. The 71,250 gallon per day septic system is 3 times larger than only 3 other systems built nationally and the largest I am aware of in New Jersey.

In another historic first, the novel septic system will be buried underneath a parking lot.

An opponent of the project put it succinctly:

8. COMMENT: Putting a waste management system under blacktop is insane, especially since I’m not sure if it has ever been done before or on such a large scale. The site also contains clay soil which doesn’t percolate well.

The DEP did not apply the recently updated more stringent inland flood hazard and stormwater regulations.

Again, DEP had to invent an historic interpretation to certify the permit application as “technically complete” to waive the new regulations.

An opponent summed that up:

44. COMMENT: The Stormwater Management system for this site is not in compliance with NJDEP or the town’s Stormwater Regulations. The steep slopes, wetlands, and stream corridor all lie in a buffer that is not to be disturbed. The added impervious surface must comply with current Best Management Practices. The site engineers are trying to avoid complying with Best Management practices through complicated engineering devices requiring rigorous and meticulous maintenance. Is this what we want to allow in a critical and degraded stream corridor that is one of the most important ones to serve our already degraded and threatened Swimming River Reservoir?

The DEP also completely ignored the State Plan, which maps the land as Planning Area 4 (agriculture) and Planning Area 5 (environmentally sensitive), where this kind of sprawl development is strongly discouraged.

Yes, this was truly an historic DEP approval.

And a truly historic failure to hold DEP accountable by NJ environmental groups.

A massive 71,250 gallon per day septic system under a parking lot, along a tributary to a reservoir.

What could go wrong?

DEP Provides A Non Responsive Response To Public Comments

(Caption – Source: US EPA)

I just received DEP’s response to the comments I submitted on the proposed corporate sweetheart deal they cut with American Cyanamid at the Superfund site along the Raritan River (for comments, see:

• The Murphy DEP Cuts Another Corporate Sweetheart Settlement With American Cyanamid At Superfund Site On The Raritan River

The key criticism of the deal was the total lack of a factual basis to justify the deal:

“There is no document published by DEP that provides a science based assessment of natural resource damages or the economic value of these damaged resources or the nexus between the NRD damages and the restoration plan or how the public will be compensated fully for those damages.”

Ironically, the DEP response suffers exactly the same flaws as the Settlement itself: DEP spouts slogans and broad conclusions that are not supported by any science, facts, data, or other evidence.

DEP arrogantly dismissed my criticism with these broad and unsupported conclusions:

Thank you for your comments on the above-referenced proposed Consent Decree. After reviewing your comments, the Department has concluded that they did not present any information that would indicate that the proposed Consent Decree is inappropriate, improper, or inadequate. The commitments of Wyeth set forth in the proposed Consent Decree satisfactorily address the injury to, loss of, or damage to the floodplain, riparian, upland, and wetland natural resources of the American Cyanamid Superfund Site. Furthermore, the location of the Duke Farms Forested Floodplain Restoration Project, only 2.2 miles from the American Cyanamid Superfund Site, creates a strong ecological and economic nexus between the restoration work and the injury to natural resources

and further supports the Department’s conclusion that the proposed Consent Decree is fair, reasonable, and consistent with the Spill Act.

I fail to understand how DEP can continue to get away with this.

The DEP claims that the restoration project is 2.2 miles from the site, and that location “creates a strong ecological and economic nexus between the restoration work and the injury to natural resources.”

But they fail to note the restoration location is UPRIVER from the Cyanamid Superfund site. Most of the off site damage from Cyanamid occurred DOWNRIVER, as contamination from the site flowed down river.

Could you imagine EPA letting Hudson River PCB polluter General Electric off the hook for a tiny restoration project (112 acre wetlands and $78,000) along the Hudson River in the Adirondacks?

No other program in DEP operates this way.

DEP is supposed to be a regulatory agency who makes science and law based decisions in a transparent and accountable fashion.

How can the Department negotiate and execute an agreement without identification and quantification of the ecological and economic damages?

Given that there are no DEP documents or even facts provided, how is the public to assess whether this agreement fully restores and fully compensates the public for NR injuries?

How can a court determine whether it is in the public interest?

I fail to understand how DEP can implement such an important environmental program in the absence of science, economics, and transparency.