WolfeNotes.com

The regional newspaper for Warren County NJ, Lehigh Valley Live, has been covering the controversy over the proposed warehouse project that the Highlands Council voted to kill last week.

Local activists have told me that the reporter on the story has made errors and does not respond to their efforts to correct them. I myself reached out to contact the reporter, Glenn Epps, to correct his misleading reporting, but he did not reply to me either.

So, today, a week after the Highlands Council vote, Mr. Epps finally got around to writing a story, see:

• Plans for a massive warehouse complex in Pohat are up in smoke. What happens now?

It’s a doozy!

How’s this for a lede:

The expectation-shattering decision now puts the well-laid plans of Polo Development back in front municipal level officials to decide what happens next.

There are actually 3 biased and misleading statements in that one sentence (“well laid plans”? And just whose expectations were shattered? Are you kidding me?)

It’s hard to know where to begin, so I’ll just post my email to Mr. Epps seeking to correct and clarify his error and misleading reporting:

From: Bill WOLFE <b>

To: “gepps@lehighvalleylive.com” <gepps@lehighvalleylive.com>

Cc: “ben.spinelli@highlands.nj.gov” <ben.spinelli@highlands.nj.gov>

Date: 10/24/2024 9:21 AM EDT

Subject: Highlands Council vote

Dear Mr. Epps – I’d like to clarify and correct statements in your story today.

https://www.lehighvalleylive.com/warren-county/2024/10/plans-for-a-massive-warehouse-complex-in-pohat-are-up-in-smoke-what-happens-now.html

The boldface below is a quote from your story, followed by my correction or clarification.

1. “The project meets its requirements and makes no impact on the highlands resources, Humphries said.”

You quoted Humphries correctly, but his statement is factually false. 100% of the site has “Highlands resources” that are impacted and must be protected.

Mr. Humphries directly contradicts facts presented in the Highlands Staff Report, which Humphries wrote and is familiar with. Specifically, on page 3 “Resource Assessment”, there is a table that documents that “100%” of the 57.2 acre site is “environmentally constrained” and in an “agriculture priority preservation area”, including a portion that is “critical habitat for bald eagle“, a drinking water “well head protection area“, “forest area” “prime groundwater recharge”, “important soils” and “open waters – wetlands, riparian areas” . I suggest you look at that table and correct Humphries’ knowingly false statement.

Link:

https://www.nj.gov/njhighlands/projectreview/lopatpohat/lopat_pohat_redev_rpt.pdf

2. “According to the review presented by Director of Planning and Science & GIS James Humphries on Thursday, the developer’s plan does conform with the council’s master plan for the region.”

The Staff Report specifically documents several conflicts with the Regional Master Plan (RMP).

First, the RMP does not allow sewers to be extended to service the site. The Council attempted to resolve that conflict via the “redevelopment area” designation. As a result, the Council, not local government, is the legal lead entity. Read the Report which says:

“The RMP does not support extension of water/sewer service in the Conservation Zone or any of the environmentally constrained sub-zones (rear property). The service extension would only be permissible for the proposed warehouse with the approval of the Highlands Redevelopment Area.”

That attempted designation by the Council is a gross abuse of the Highlands Act and the RMP.

Also keep in mind that the “redevelopment area” designation was recommended by the Council because the prior development proposal could not meet the RMP standards for “Highlands Center” designation. So again, the Highlands Council is playing games.

Second, the site does not meet the standards of the Highlands Act and RMP regarding “impervious cover”. The law and the RMP require a MINIMUM of 70% impervious cover in order to qualify for the “redevelopment area” designation.

Again, the Highlands Council attempted to evade this legal standard by using the parking lots (off site) at the Phillipsburg Mall to make the UNDEVELOPED site’s farmland and forests meet the 70% impervious cover standard.

This is another gross abuse of the law and RMP.

3. “This does revert back to the municipalities and home rule and that’s where the decisions have to be made,” Humphries said.”

That statement is false. The Highlands Council is the final decision maker, not the municipalities.

The Highlands Act puts the Highlands Council in charge of the “redevelopment area” designation” (DEP designated “brownfields” also qualify, but again, local government does not make that designation).

The Highlands Act mandates that a “redevelopment area” designation be “appropriate” and meet the goals and objectives of the Highlands Act, as determined by the Highlands Council – not local government.

4. “The measure needed 8 votes in order to pass in front of the Highlands Council; it failed by a split vote 6-5.”

The vote was 6-4.

FYI, I am a retired DEP professional planner (13 years). I was a policy advisor to DEP Commissioner Brad Campbell, I staffed Gov. McGreevy’s Highlands Task Force while at DEP, and I was an architect of and drafter of the Highlands Act with Senator Smith and lawyers at the Office of Legislative Services. So, I’d qualify as an expert witness.

I am copying Executive Director Spinelli in hopes that he can correct his staffer Mr. Humphries’ false statements and set the public record straight.

Bill Wolfe

Another Example Of The “Environmental Justice” Magic Wand

Echoes Of Infamous Kiddie Kollege Daycare Disaster

Toxic Site Cleanup Is Exempt From The NJ Environmental Justice Law

My prior post argued that DEP could bury dead bodies on Main Street and issue a press release that called it “environmental justice” and the NJ press would salute and praise them.

I want to follow that post up with another egregious example.

DEP took over 20 YEARS to sample the indoor air of a daycare center located directly across the street from a toxic waste site to find out if toddlers were exposed to toxic chemicals. 

Actually, the DEP may not have even sampled indoor air, but merely soil and groundwater for “vapor intrusion” potential. And they probably completely ignored risks from exposure to outdoor air and never sampled children’s blood or notified parents. But, I’m getting ahead of myself.

The toxic waste site in question was NOT cleaned up and the soil and groundwater were contaminated with gasoline and diesel fuel, which contain toxic volatile organic compounds (VOC’s – benzene et al) known to evaporate and pollute the air and cause dangerous subsurface “vapor intrusion” into buildings by migrating underground.

Daycare centers are classified as “sensitive receptors” under DEP toxic site cleanup regulations. Documented risks to “sensitive receptors” trigger “immediate environmental concern” accelerated remedial requirements. (wonks can see this and this)

Under a law passed in response to the infamous “Kiddie Kollege” daycare disaster – where scores of infants and toddlers were exposed to highly toxic mercury at a converted former thermometer factory site and DEP failed to act despite knowing that the site had not been cleaned up – a condition of their licensing requires that Daycare centers conduct environmental analysis – including an assessment of risks of vapor intrusion. (Read P.L. 2007, c.1 AKA the “Kiddie Kollege” law, my demand for investigation, and the Department of Health’s investigation Report) of that scandal.

So, both DEP and the State Daycare center regulators  should have been actively and aggressively involved.

Yet almost 20 years later, the DEP has learned NOTHING from that tragedy.

In a press release issued today, DEP openly reveals negligence – it took DEP over 20 years to conduct sampling to determine if children in the daycare center were being exposed to “vapor intrusion. DEP wrote (especially note the chronology):

The gas station is in a residential neighborhood with a day-care center across the street. […]

In 2003, DEP became aware of soil contaminated with gasoline and diesel fuel surrounding the UST. AB Trading and 959-961 Clinton Avenue Associates have disregarded orders from DEP to remediate the hazardous substances and bring the site into compliance with state environmental laws.

In 2019, DEP filed a complaint against the defendants in the Irvington Municipal Court for failure to remediate the contamination. In a July 2019 ACO, the defendants agreed to pay penalties and hire a licensed site remediation professional (LSRP) to remediate the site under direct oversight of the DEP.  However, the defendants have failed to do so.

Earlier this year, the DEP was forced to conduct vapor intrusion sampling at the day care after the owner failed to respond to notifications about migration of volatile chemicals from the site. DEP’s sampling confirmed that vapor intrusion is not occurring at the day care center.

DEP has essentially just repeated the Kiddie College daycare disaster.

Repeat: while it took DEP over 3 months to sample the Kiddie Kollege daycare center they knew was located in a contaminated former thermometer factory, it took DEP over 20 YEARS in this case.

If you find that claim incredible, read this NY Times story. I leaked documents to The NY Times that revealed that DEP took over 3 MONTHS to respond:

• Memo Shows Agency Knew of Danger in Child Care Building

The New Jersey Department of Environmental Protection knew in 1994 that a building that later housed a Gloucester County day care center was so dangerous that state inspectors were instructed to use respirators when entering the building, according to an internal memo obtained by The New York Times yesterday.

But the site remained contaminated, and as far as the department knew, unoccupied, until inspectors visited it in April and found that Kiddie Kollege, a day care center serving children as young as 8 months old, was operating in the building. Yet the center, which is in Franklin Township, was allowed to remain open for more than three months, until state environmental investigators determined in late July that the site was still contaminated. […]

The internal memo, dated Oct. 12, 1994, said “Level C at a minimum is required for entry into the building,” meaning respirators were required, said Bill Wolfe, a former department employee who is the director of New Jersey Public Employees for Environmental Responsibility, a watchdog group that provided a copy of the memo.

Something else very important happened at DEP in 2002, just before the DEP discovered the AB Trading Enterprises and 959- 961 Clinton Avenue Associates, Irvington toxic site in 2003.

I was personally involved in this and have blown the whistle about it many times since 2002. I worked for DEP Commissioner Brad Campbell at the time.

A February 2002 DEP memo warned NJ DEP Commissioner Campbell about statewide significant risks from vapor intrusion and flaws in DEP regulation:

Indoor Air from Contaminated Groundwater

The issue is relatively new as it relates to vapors from dissolved constituent plumes entering homes at above chronic levels. This issue is not an isolated incident (Wall Township) and has become an issue across the country. As more cases of this type surface it may cause the protectiveness of sites with natural attenuation remedies and the protectiveness of the groundwater quality standards to be re-evaluated.

So there it is.

Will any reporters ask DEP what explains a 20 year delay?

Will they ask how the Daycare center received a license to operate without conducting vapor intrusion sampling?

Just what the hell is going on here?

After Decades, Thousands Of Toxic Sites Remain Polluted With No DEP Enforcement

What DEP Now Calls “Enforcement” Is Merely The Willing “Consent” Of The Polluters

These Are Slap On The Wrist Plea Deals Parading As Aggressive Enforcement

The Real Issues Involve Failures Of The Privatization Of Toxic Site Cleanup In NJ

The Murphy DEP issued another self serving press release yesterday, purportedly announcing “environmental justice” enforcement actions at 4 cherry picked contaminated sites, see:

• AG Platkin and DEP Commissioner LaTourette Announce Filing of Four New Environmental Justice Enforcement Actions

The mere assertion of the phrase “environmental justice” automatically elevates any DEP action into a virtuous accountability free zone that destroys any critical scrutiny of what is actually going on.

We’ve come to a point where reporters rarely read past the headline and opening paragraphs of the press release.

But the use of the phrase “environmental justice” provides an excuse for that lazy stenography and guarantees favorable press reporting. Use of that phrase amounts to an insurance policy against any reporter actually critically reading the underlying DEP enforcement documents and thinking about what they mean. No way reporters hit the links and read the DEP enforcement documents and ask questions.

These “enforcement” “settlements” are really the equivalent of a plea deal. But, in contrast to a criminal plea deal, the corporate polluter negotiates and “consents” to the deal, suffers no real punishment, and is allowed to continue the exact same pattern of behavior that violated the law. Despite decades of failure to cleanup toxic sites and comply with DEP cleanup “orders”, corporate polluters face minuscule economic penalties and are allowed to retain control of the “cleanup” of the site.

These plea deals don’t provide “environmental justice”, they expose decades of DEP mismanagement and lack of enforcement. Why are toxic sites that are 25-30 years old just now being addressed? Where has DEP been for decades?

They also raise serious questions regarding the privatization of the DEP toxic site cleanup program. Specifically, that privatization law set a May 2024 deadline and mandated that DEP assume control over the cleanup of sites that private corporations failed to cleanup after many years.

That law and these plea deals raise obvious questions:

• how many toxic sites are not being cleaned up by private corporate polluters?
• how many sites has DEP assumed control of the cleanup due to the May 2024 deadline?
• what are the environmental and public health risks of these egregious cleanup days?

So, let’s look at examples of that.

Orange Automotive

This is an old gas station. It’s located across the street from what look like 2 low rise apartment buildings and a couple of hundred feet from “J’s Soul Food”.

Toxic contamination was discovered over 25 years ago. The corporate owner was required to submit a remedial investigation by 2016. They didn’t. They were required to complete the cleanup of the site by May 2024. They didn’t come close. They did virtually nothing.

The NJ law that privatized the toxic site cleanup program mandated that DEP assume direct control over the cleanup. This legally forced DEP’s hand.

So, what did DEP do? Did they seek “justice” for this egregious non-compliance and decades of delay?

Did they drop the hammer on the polluter? (DEP has authority to collect $50,000 a DAY in penalties. Do the math: (25 years) X (365 days/year) X ($50,000/day) = ?).

Did they hire contractors to immediately cleanup the site? (DEP is required to take direct oversight of the cleanup and has the authority to conduct the cleanup and bill the polluter 3 TIMES the cleanup cost, i.e. “treble damages“).

No, they did none of that. Read the “consent order”.

Here’s what they actually did:

For merely submitting an “initial detailed cost review” and a “proposed public participation plan” in April 2024 (no cleanup, just minor paperwork), the DEP found that it was “in the public interest” for DEP to abandon the legally mandated direct oversight of the cleanup!

That put the corporate polluter back in charge of the cleanup he had failed to perform for decades!

DEP then merely required the corporate polluter to submit the cleanup documents that were required decades ago (actually, a streamlined version of what is required, e.g. DEP eliminated the mandatory requirement that the polluter conduct a feasibility study) and provided a no fault – no guilt – no liability get out of jail free card:

In term of providing “environmental justice” to the community, again DEP did the OPPOSITE.

The DEP eliminated the requirement that the polluter conduct a “receptor evaluation”, a technocratic term for a scientific study of whether nearby people were actually exposed to pollution from the site: (see paragraph 17. d.):

So let this all sink in:

1. For decades of gross violations that DEP could issue $50,000 per day penalties, the DEP issued a $40,000 administrative fine;
2. For decades of failure to submit studies and cleanup the site, which triggered a legal requirement that DEP assume direct control of the cleanup, DEP actually put control of the cleanup back in the polluters hands, and merely for submitting 2 minor draft documents!
3. For decades of pollution and non-compliance, DEP waived mandatory cleanup requirements, i.e. feasibility study and a receptor evaluation.

And after all that, the Murphy DEP and AG issue a press release bragging about it as some kind of “environmental justice”.

Huge Victory For Local Activists – But Zero Press Coverage

Last Thursday, the NJ Highlands Council voted to reject a proposed massive new warehouse project on farmland in rural Warren County.

You can listen to the strong public testimony opposing the project and the Council’s deliberation and vote by hitting this link (discussion starts at time 42:00)

The vote was a huge victory for local activists and sets a good precedent as the first test of the Highlands Council’s highly touted new “warehouse policy”.

Frankly, I was surprised that 4 Council members – Dougherty, Dressler, Francis, and Sebetich – stood up to the political pressure and voted NO to defend the integrity of the Highlands Master Plan and the Council’s own warehouse policy. They should be thanked for having the integrity and courage to do the right thing, certainly under significant political pressure.

Shame on the 6 Council members who voted YES, particularly Council member Dan Van Abs, who surely knows better, but hid behind a sham excuse that he was merely “following the rules” and the RMP.

I was deeply troubled by Van Abs’ lame excuse and the deliberations of the Council.

Several Council members emphasized deference to “home rule” and falsely claimed that it is not the Council’s role to be the final arbiter of local land use decisions. This is particularly and egregiously wrong when it comes to designation of areas for “redevelopment” (more on that in future posts).

I wrote 3 posts criticizing the project, see:

• Highlands Council Votes Tomorrow (Thursday) On Controversial Warehouse On Rural Farmland
• NJ Highlands Council Feeling The Heat On Proposed Warehouse Approval – Cancels Scheduled September Meeting
• Pending Warehouse “Redevelopment” Approval Makes A Mockery Of The Highlands Act And The Highlands Council’s New “Warehouse Policy”

Curiously, there has been ZERO press coverage – none – despite significant Statewide coverage of the warehouse issue, favorable coverage of the Highlands Council’s new warehouse policy, and specific coverage of this particular warehouse proposal.

Similarly, the well funded NJ Highlands Coalition, who testified in opposition, has not issued any press release or public statement to praise the Council members who voted NO, recognize the work of local activists, and declare victory.

Why is that?

We delve into those questions in future posts.

Council Will Designate Farmland As An Area In Need Of Redevelopment

Scheme Recommended By The Council Because Developer’s Plan Was Not Approvable

Sorry for the late notice, but the Highlands Council’s meeting agenda for Thursday October 17 at 4 pm includes public comment and a council vote on massive new warehouse development on rural farmland (see item #10)

10. PLAN CONFORMANCE COMMITTEE

• CONSIDERATION OF RESOLUTION – Determination on Application for Highlands Redevelopment Area Designation for Township of Lopatcong, Warren County, Block 102 Lots 9, 9.01 and 9.03 and Township of Pohatcong, Warren County, Block 1 Lot 1.01 (voting matter with public comment) – *Read the Resolution

This is an outrageously bad project on its merits, but it is made far worse by the fact that the scheme, i.e. an Application for Highlands Redevelopment Area Designation, was cooked up and recommended by the Council itself because the developer’s original plan conflicted with and was not approvable under Highlands Regional Master Plan (RMP) as a “Highlands Center”.

Here is text from the Highlands Council’s staff Report that openly admits that corruption:

The Township originally submitted a Highlands Center designation proposal including these properties. After a review of the proposal by the Plan Conformance Committee on October 5, 2023, it was recommended that the Townships amend the center petition to remove these properties and instead submit a Highlands Redevelopment Area application. This recommendation was based on the proposed redevelopment of the Phillipsburg Mall property and the lack of comprehensive center-based planning that the finding for a consistent Highlands Center would require.

In another outrageous move, the Council is using paved parking lots (impervious cover) from a nearby Mall in order to calculate and make the farmland comply with and meet the RMP impervious cover requirements for a “redevelopment area”. Again, the Staff Report admits that:

The Phillipsburg Mall redevelopment project is exempt from the Highlands Act and has received all local approvals. It is included in the application to reach the necessary impervious surface calculations to qualify the rear area as a Highlands Redevelopment Area.

Finally, the farmland being destroyed for the proposed warehouse would not be eligible for sewer service without this corrupt “redevelopment area” designation that was cooked up by the Council. Again, the staff Report openly admits that:

The RMP does not support extension of water/sewer service in the Conservation Zone or any of the environmentally constrained sub-zones (rear property). The service extension would only be permissible for the proposed warehouse with the approval of the Highlands Redevelopment Area.

This is corruption at its worst and would establish a horrible precedent, including on other critical issues, like mitigation and other issues.

I wrote about that in this post, so you can hit the links and get the relevant text from the Staff Report:

• Pending Warehouse “Redevelopment” Approval Makes A Mockery Of The Highlands Act And The Highlands Council’s New “Warehouse Policy”

Please attend the hearing at 4 pm and oppose this project!

[End Note: for those that do not know me, I was an architect of and represented the DEP Commissioner as a member of a very small team from Office of Legislative Services that drafted the introduced version of the Highlands Act (Senate No.1 – the version without all the exemptions and other political compromises).