WolfeNotes.com

Check out the caption under this Star ledger photo today above a story on an upcoming bear hunt:

Terrorizing the neighborhood?

The fears and smears of the terrorism label have gone too far (see NY Times editorial: “Are you or have you ever been a lawyer“).

The T word has now crept into our wildlife management thinking.

Of course, demonizing bears as “terrorists” makes it much easier to put in place a policy that allows hunters to kill them.

Others welcomed the proposal, including Hal Bozarth, executive director of the Chemistry Council of New Jersey. The manufacturing industry in New Jersey is being “strangled to death by regulations,” he said.[Note: Amazingly, Bozarth's brazen comment attacked DEP rules that regulate "vapor intrusion". Bozarth's client Dupont poisoned 450 homes in Pompton Lakes via "vapor intrusion", which has been associated with elevated cancer rates. Bozarth speaks with impunity, as his members literally kill NJ residents. Now how sick is that?]

The rhetoric is ramped up and the lines are sharply drawn with virtually no room to maneuver. This is a test of whether oil industry lobbyists will succeed in making the Christie “Red Tape Review Group” process devolve into a true “Death panel”.

Inflammatory rhetoric and provocative statement? Absolutely.

Accurate and fair? Certainly. Read on about the most recent environmental and public health protection under assault.

Governor Christie’s Executive Order #1 moratorium targeted and blocked 12 DEP rule proposals.

Those proposals are now undergoing political and economic review by the “Red Tape Review Group” headed by Lt. Gov. Guadagno, who has no training or expertise in public health or environmental protection (nor does any other member on the Red Tape Review Group). Pursuant to Executive Order #1, #2 and #3, Guadagno has the power to veto these DEP regulations for virtually any reason, and her final decisions are not subject to public scrutiny or judicial review.

We wrote about the DEP perchlorate drinking water standard that was killed outright by the moratorium, and the phosphorus water quality standard that was held hostage.

Today, DEP held a “stakeholders meeting” to discuss another important clean air rule blocked by the moratorium. Keeping with the war metaphor, lets call this one subject to extraordinary rendition to a black site somewhere in the Lt. Gov.’s Office.

This particular clean air rule applies to fuel oil and has been under development for over 5 years. It is part of a regional air pollution control strategy endorsed by 11 northeastern and mid-Atlantic states. DEP amended its EPA approved “State Implementation Plan” (SIP) required under the federal Clean Air Act to incorporate this strategy and set of rules back on June 16, 2008. After much delay, on November 16, 2009, DEP finally proposed new rules that would mandate steep reductions in the concentration of sulfur in fuel oil sold in NJ.

So the oil industry has known this is coming for a long time.

Those fuel oil content reductions are required to reduce air pollution emissions to meet health based standards set under the federal Clean Air Act (see: 40 CFR 51.1002(c)(1).) Those national air quality standards were required to be met by NJ in 2010. There is no debate that the DEP proposal is technologically feasible to meet. In fact, there is pending legislation (A1054 (McKeon)/S1414 (Smith) that would mandate steeper and quicker reductions than those sought by DEP, by imposing the 15 ppm standard by 2011. The DEP rule proposal would mandate a 67% reduction in allowable sulfur, to 500 parts per million by the year 2014, and a sharper 99% reduction to 15 ppm by 2016. The proposal would have dramatic public health benefits, including reducing mortality (i.e. death).

But, not so fast. Huge Oil industry profits are at stake.

To the applause of lobbyists for oil giants Exxon-Mobil, Hess, Conoco Phillips, and backed by cheer-leading of lobbyists for the American Petroleum Institute and the NJ Petroleum Council, the Christie moratorium has thrown a monkey-wrench into the process, disrupting years of work across the mid-Atlantic and New England region.

Despite multi-billion record profits in the oil industry, these giant corporate polluters don’t want to spend money to reduce the death rate their products cause in NJ.

The public health stakes are huge – thus the inflammatory but accurate headline. But there really are lives at stake. Here’s why DEP is requiring that sulfur be reduced: (see page 18-20 of the DEP proposal)

The health effects associated with exposure to fine particles are significant, mainly due to the fact that particles of this size can easily reach into the deepest regions of the lungs.

Significant health effects associated with fine particles exposure include:
• Premature mortality;
• Aggravation of respiratory and cardiovascular disease;
• Decreased lung function and difficulty breathing;
• Asthma attacks; and
• Serious cardiovascular problems, such as heart attacks and cardiac arrhythmia.

The USEPA estimated that attainment of the 1997 annual and daily fine particles standards nationally would prolong tens of thousands of lives each year and prevent hundreds of thousands of hospital admissions, doctor visits, absences from work and school, and respiratory illnesses in children. Individuals particularly sensitive to fine particles exposure include older adults, people with heart and lung disease, and children. The elderly have been shown to be particularly at risk for premature death from the effects of particulate matter. Health studies have shown that there is no clear threshold below which adverse effects are not experienced by at least certain segments of the population. Some individuals who are particularly sensitive to fine particles exposure may even be adversely affected by concentrations of fine particles below the revised 2006 annual and daily standards. (72 Fed. Reg. 20586-20587 (April 25, 2007), Clean Air Fine Particle Implementation Rule) The USEPA is currently reconsidering those standards based on recommendations of its Clean Air Scientific Advisory Committee (CASAC).

According to the most recent Federal and State estimates, 765,125 New Jersey residents have asthma. In 2004, asthma sufferers in New Jersey accounted for 15,679 hospitalizations, which represents approximately one out of every 50 hospitalizations. Of these asthma hospitalizations, 5,175, or about one-third, were children. There were 1,838 deaths due to asthma between 1989 and 2003 in New Jersey. The risk of death from asthma increases considerably with age, with the over-65 population having the highest rates. (see: Asthma in New Jersey Annual Update 2006. New Jersey Department of Health and Senior Services, August 2006 (click on this for document)

SO2 causes a wide variety of health and environmental impacts because of the way it  reacts with other substances in the air. SO2 reacts with other chemicals in the air to form fine sulfate particles. When these are breathed, they gather in the lungs and are associated with increased respiratory symptoms and disease, difficulty in breathing, and premature death. Peak levels of SO2 in the air can cause temporary breathing difficulty for people with asthma who are active outdoors. Longer-term exposures to high levels of SO2 gas and particles cause respiratory illness and aggravate existing heart disease. (Sulfur Dioxide: Health and Environmental Impacts of SO2/Six Common Pollutants/Air & Radiation/USEPA. (click on this for document).

Increased ozone concentrations severely affect the quality of life for susceptible populations – children, the elderly, and asthmatics – and present health risks for everyone. Exposure to ozone for several hours at relatively low concentrations significantly reduces lung function and induces respiratory inflammation in normal, healthy people during exercise. This decrease in lung function is generally accompanied by symptoms such as chest pain, coughing, sneezing, and pulmonary congestion. (The Green Book Nonattainment Areas for Criteria Pollutants, United States Environmental Protection Agency, as updated August 17, 2007. Click on this for document)

NOx, as a precursor for both fine particles and ozone, will contribute to the health impacts associated with both fine particles and ozone. Ozone exposure can cause several health effects, including irritation of lungs. This can make the lungs more vulnerable to diseases such as pneumonia and bronchitis, increase incidents of asthma and susceptibility to respiratory infections, reduce lung function, reduce an individual’s ability to exercise and aggravate chronic lung diseases.

In addition to these incredible public health benefits, even the cost benefit analysis on the rule documented HUGE net economic benefits, due mainly to all the avoided costs of health care.

So what’s it going to be?

Will DEP be allowed to adopt the science based rule they proposed mandating reductions to 500 ppm by 2014 and 15 ppm by 2016?

Or will oil industry lobbying of the Regulatory Czar Guadagno block all or part of the DEP proposal?

The ball is in Regulatory Czar Guadagno – and ultimately Governor Christie’s – court

To paraphrase DEP air quality experts: “If this rule proposal doesn’t pass muster under the Governor’s Executive Order review process, none will”

This is a story about a DEP clean water standard that is frozen and held hostage by the Christie moratorium at the behest and sole benefit of polluters. Enforcement of this standard is needed to protect drinking water supplies and the ecological health of our rivers, lakes, and streams.

We recently wrote about a drinking water standard for perchlorate – the toxic chemical found in rocket fuel, military explosives, and about 1 in 6 NJ drinking water systems - as the first casualty of Governor Christie’s moratorium.

Before that, we wrote to explain why “in the weeds” fine print of DEP regulations is so important and predicted that DEP regulations would be the target of a stealth industry and Christie campaign to rollback environmental and public health protections under the guise of promoting economic development in response to the economic crisis. Christie is even parroting the chemical industry and NJBIA slogan, “regulatory reform (see: “Corporate America’s Back Door to the Bush White House” for Christie’s playbook)).

Today, we warn that a clean water hostage is taken, with Christie’s Regulatory Czar’s gun to its head.

So follow as we break this complex story down. We explain why what Governor Christie’s slogans smear as “Red Tape” and “bureaucracy“, are in reality longstanding, science based, and essential elements to protect public health and the environment.

First of all, to fully understand and respond to the threat, we need to consider the sweeping breadth and systematic nature of the Christie assault.

Christie’s Executive Orders 1-3 did several troubling things, they: 1) targeted and blocked 12 DEP proposed rules; 2) mandated a new cost benefit analysis test for those 12 and all existing rules; 3) established a new federal consistency policy that erects barriers to necessary strong rules and will rollback many; 4) created a “Red Tape Review Group” to make recommendations on those rules; and 5) empowered a Regulatory Czar that can over-ride science and DEP recommendations and veto rules.

The Regulatory Czar can veto DEP rules based on closed door meetings with polluting industries regulated by those same DEP rules. This is a flagrant violation of state and federal administrative and environmental laws, which require transparency, public participation, and accountability. These requirements are in place to achieve what the lawyers call “due process”, restrict “ex parte” intervention by special interests, and establish a formal “administrative record” that is subject to judicial review. Most importantly, laws mandate that regulatory decisions be based on law and science, not politics and/or economics.

As such, the Regulatory Czar contradicts Christie’s repeated promises to increase transparency and promote science over politics at DEP.

In addition to attacking DEP rules, so called DEP technical “Guidance Documents” have been targeted. Guidance documents interpret, implement, and are needed to enforce the rules. Guidance is often referenced but not specifically included in DEP rules. Scores of DEP Guidance documents have come under systematic attack by: 1) a targeted recommendation in the Christie’s DEP Transition Report; 2) A2464, an Assembly bill just released from Committee; and 3) a plan by DEP Acting Commissioner Bob Martin to issue a Administrative Order that would gut any implementation or enforcement of those Guidance Documents by making them voluntary and requiring that DEP could only enforce requirements explicitly included in regulations. Listen to DEP Assistant Commissioner Kropp describe Martin’s upcoming Administrative Order in March 4 testimony to the Assembly Regulatory Oversight Committee by clicking here)

The clean water rule that is held hostage also provides a perfect illustration of why DEP Technical Guidance documents are essential to enforcing environmental laws.

So, follow as I break this down.

On Friday March 5, 2010, DEP held an informal “Stakeholder” meeting to seek comments on how Christie’s EO’s impact the previously proposed but now frozen surface water quality standard for phosphorus.

Phosphorus is a plant nutrient that can lead to excessive growth of algae, a process called eutrophication, which depletes oxygen in the water and kills fish and aquatic life. About 65% of NJ’s rivers and streams and 100% of lakes are eutrophic, fail to meet the phosphorus standard, and are legally “impaired” due to excessive nutrient pollution.

Too much phosphorus, mainly from pollution discharged by hundreds of sewage treatment plants, also is a serious concern for protecting drinking water supplies. Excessive algae requires additional chemical treatment by the water filtration plants. This increases public health risk of drinking water, particularly with respect to birth defects and cancer from “disinfection byproducts“. This is an acute problem in the Passaic River basin, where dozens of sewage treatment plants and industries discharge pollution directly upstream of water supply intakes. Similar but less severe problems exist in the Ramapo, Raritan, Delaware and other NJ rivers that serve as sources of water supply.

Recognizing the public health and environmental significance of reducing phosphorus pollution, in 2002, then DEP Commissioner Brad Campbell directed DEP to enforce the phosphorus standard in the Clean Water Act’s pollution control permit program known as NJPDES. Prior to that, for more than 20 years, sewage treatment plants exploited a loophole in the standard and evaded any limits on phosphorus discharge in their permits. DEP announced:

Brad Campbell, DEP Commissioner 2002-2006

On May 24, 2002, Commissioner Bradley M. Campbell announced a new phosphorus initiative at a meeting held with approximately 100 representatives of New Jersey’s publicly owned treatment works. Commissioner Campbell detailed the DEP’s direction to fully implement the numeric Water Quality Criteria (WQC) for total phosphorus. This decision was based on the large number of water bodies listed as impaired due to numerical exceedance of WQC for phosphorus, which is part of the State’s Surface Water Quality Standards (SWQS).

Excessive phosphorus in freshwater streams, lakes and rivers results in algae blooms. These blooms cause depleted oxygen levels, adverse impacts on aquatic populations, and taste and odor problems and additional treatment costs for drinking water suppliers. In 1999, approximately 62 percent of the water bodies statewide exceeded the WQC for phosphorus. The Federal Clean Water Act requires the DEP to impose limits that will prevent/eliminate the violation of SWQS. Therefore, the imposition of Water Quality Based Effluent Limits (WQBELs) in New Jersey Pollutant Discharge Elimination System (NJPDES) discharge to surface water permits is necessary.

Campbell’s order was implemented via a March 2003 guidance document known as the “Technical Manual for Phosphorus Evaluations (see: www.state.nj.us/dep/dwq/techmans/phostcml.pdf . It required a scientific study before sewage treatment plants could invoke the loophole in the water quality standard. As a result, for the first time, hundreds of sewage treatment plants were issued tough new limits on phosphorus pollution.

But the Campbell DEP crackdown caused a political backlash by local sewer authorities who legally appealed and politically challenged their NJPDES permits.

After more than 5 years of this fight, under a new Governor and Commissioner, DEP caved in to the pressure from local sewer authorities.

In April of 2009 (see 41 N.J.R. 1565(a); April 20, 2009), DEP proposed to relax the phosphorus water quality standard, essentially by reinstating the old loophole repaired by the 2003 Guidance and Campbell enforcement initiative. We blew the whistle on this. The Star Ledger reported and on July 1, 2009, wrote a killer editorial that not only nailed the issue, but ultimately forced DEP to withdraw the proposed rollback:

Phosphorus and the DEP: Keeping NJ’s Water Healthy

State environmental officials are considering changes in how phosphorus levels are measured in the state’s rivers and streams, but their proposal is no improvement on the current standard.

Phosphorus is a pollutant that feeds algae in waterways, choking off oxygen and killing fish and other wildlife. Since 2004, the state Department of Environmental Protection has used a numerical standard that measures the presence of the chemical at the point where sewage plants discharge into streams. Anything higher than 0.1 milligrams of phosphorus in the water is a violation , and sewage plant operators must add a chemical treatment to remove the pollutant.

Now the DEP may replace the numerical criterion with a “narrative” standard that would allow varying discharge levels based on site-specific conditions. The change is supported by the Association of Environmental Authorities, which represents 105 water authorities.

Its executive director, Ellen Gulbinsky, said many conditions affect whether a given amount of phosphorous will be dangerous to a waterway, including how much sunlight hits the water and whether it feeds a drinking water supply. “We’re mindful of drinking and discharge water,” she said, but a remedy can be expensive “if done incorrectly, without a goal in mind.” Gulbinsky said it can cost $2 million to build a treatment facility plus higher operation and maintenance costs.

But Bill Wolfe, an environmental activist who was involved in setting the numerical standard when he was at DEP five years ago, said returning to more flexible regulation would allow sewage authorities to conduct endless studies and stall the treatments. It would make it “virtually impossible to enforce a standard,” he said.

There are compelling reasons to keep the current, rigorous standard. Unlike New York, which has large reservoirs, New Jersey depends largely on its rivers for drinking water.

Another strong argument came from those notoriously green folks in the Bush administration.

In January, just before Obama took office, the Environmental Protection Agency informed Florida officials that a numeric standard on phosphorous was necessary for the state to comply with the Clean Water Act. The Sunshine State had relied on the narrative standard.

“Numeric nutrient criteria will provide more precise, predetermined targets . . . and provide greater certainty as to the level of water quality,” the EPA told Florida’s DEP. The federal agency said the narrative approach, “is a difficult, lengthy, and data-intensive undertaking” and causes clean-up delays that would be avoided with a numeric standard.

NJ DEP would do well to review Florida’s experience, and heed the EPA’s advice. It’s the best way to protect both drinking water and the eco-system.

That April 2009 proposal to gut the standard was withdrawn.

Caught with their pants down trying to rollback a key protection by that Star Ledger editorial, DEP was forced to restore the standard in the December 2009 rule proposal now frozen by the Christie moratorium. Under the guise of a “misunderstanding”, clarifying the core of  that December rule proposal, DEP said:

Comments received on the April 20, 2009 proposal expressed concern that the Department would not implement a numeric criterion for a waterbody until it determined that the narrative criterion was not met. More specifically, commenters were concerned that the proposal could be interpreted to mean that the applicable numeric criterion would only be applied when it was found that a waterbody did not comply with the narrative criterion. Accordingly, they were concerned that where information or an assessment method was not available to evaluate compliance with the narrative criterion, the applicable numeric criterion would not be imposed. To eliminate this concern and clarify the Department’s intention in such situations, the Department is re-proposing phosphorus numeric criteria for both streams and lakes to indicate that the applicable numeric criterion applies until the Department determines that the phosphorus concentration in the waterbody does not cause undesirable conditions described in the narrative criterion for nutrients.

So now the same political pressure is being brought to bear by local sewer authorities. They have successfully used political pressure to exploit the loophole in the phosphorus standard for 25 years. They successfully pressured DEP to relax enforcement of the standard in discharge permits.

Now they are seeking relief via the Christie Moratorium. Their objective is the same denial and foot-dragging they have been allowed to get away with for the last 25 years: dodge phosphorus limits in their pollution discharge permits.

Polluters are relying the economic cost benefit analysis required by Christie’s EO #2.

Oblivious to the mandates of the federal Clean Water Act, and with no methodology specified or even key terms defined, the Christie Executive Order #2 broadly mandates “cost benefit analysis”. But the federal Clean Water Act strictly limits when state’s may consider economic costs in delegated State clean water programs. The CWA does not allow consideration of costs in setting what are required to be science based water quality standards to protect the fishable and swimmable objectives of the Act (i.e. protect, maintain, & restore the physical, chemical, and biological integrity of the nation’s waters). Regardless of these federal requirements, following EO #2, the DEP  crudely solicited comments on:

a. What is the effect of the proposal on New Jersey’s economy?

b. Do the burdens on business and workers outweigh the intended benefits?

But federal CWA policy to oversee State water quality standards programs severely limits when State’s may allowably take into consideration and sets strict safeguards. Federal regulations include specific economic factors and state in detail how State’s may consider them. For example, states may consider costs in 3 places: anti-degradation policy, use designations, and variances:

In order to remove a designated use or obtain a variance, the State or discharger must demonstrate that attaining the designated use would result in substantial and widespread economic and social impacts. Likewise, if a degradation in high-quality water is proposed, it must be shown that lower water quality is necessary to accommodate important social and economic development.

It is simply illegal for DEP to consider the economic factors specified above and the cost benefit analysis of Executive Order #2 in setting the phosphorus standard.

Limits on phosphorus pollution from sewage treatment plants are badly needed NOW to protect public water supplies and the health of NJ’s rivers and streams.

Twenty Five years of delay is unacceptable.

What is going on here is an outrage and must be stopped.

Why Roll Back NJ Environmental Standards To Federal Minimums?

Why handcuff DEP enforcement? And why would Democrats join Governor Christie in doing so?

[Update: 4/5/10 - Philly Inquirer story: "Committee ponders limits of state agencies' regulations"]

Less than 48 hours after the first “public” (by invite only) meeting of the “Red Tape Review Group” led by the new Regulatory Czar established by Governor Christie’s Executive Orders #1 (a moratorium on certain regulations) and EO#2 (”common sense” regulatory policies including cost benefit analysis and rollback to federal minimums) and EO #3 (Red Tape Review Group)  (for press coverage of that meeting, see “NJ red-tape review board gets an earful“), today an Assembly Regulatory Oversight Committee rammed through a dangerous bill to gut enforcement of a broad array of DEP public health and environmental protections.

The bill in question, A2464 (Burzichelli (D – Valero), was not even drafted or formally introduced at the time of the hearing. The bill was opposed strongly by virtually all environmental groups. Following this testimony, a committee aide read the extremely complex bill aloud, with extensive amendments. Amazingly, not even having read what they were considering, the Committee then voted unanimously to approve and release the bill.

Burzichelli’s Committee also took testimony on proposed legislation to block state agencies from adopting regulations that are stricter than federal minimums without prior and explicit legislative authorization (in other words, rollback followed by paralysis).

Both moves have been long sought and were loudly applauded by lobbyists for the highly polluting chemical and energy industries. And it was no secret that DEP and environmental regulations were the target of both bills.

But why on earth would the Governor’s rollback agenda – bad policy, deeply unpopular, and opposed by 79% of New Jerseyans according to a recent poll – be supported by democrats in the Legislature?

Burzichelli and the Committee hid behind the Christie Executive Orders’ “Red Tape” process to target and scapegoat DEP and environmental regulations as causing or contributing to the economic collapse.

While the testimony focused on legal esoterica of  administrative law and environmental regulation, it was obvious from the outset – despite repeated denials by Burzichelli – that the agenda and policy objective was to use the economic crisis as a pretext and to provide cover for an extremist DEP and environmental dismantling exercise long been sought by the polluters and developers of NJ.

Now that the dual economic and fiscal crises have hit, industry lobbyists are cynically, viciously, and shamelessly exploiting the situation.

Here is the Committee’s last minute posted agenda announcement:

The committee will hear testimony from the public concerning the feasibility of prohibiting a State agency from filing with the Office of Administrative Law a notice of proposal or notice of adoption for any rule that would exceed federal   standards or requirements unless specifically authorized by State law. A-2464 Burzichelli – Requires all State agency rules be published in NJ Register, and prohibits use of regulatory guidance documents unless specifically authorized by State law.

Right.

DEP testified in support of the legislation by announcing that Acting Commissioner Martin will soon issue an Administrative Order that will make all existing DEP guidance voluntary. In another radical departure from 35 years of policy and administrative practice at DEP, Martin will mandate that only adopted regulatory requirements are enforceable. Assistant Commissioner Kropp even admitted that the intent was to shield newly Licensed Site Professional toxic site cleanup contractors from enforcement actions by DEP or the newly created Licensing Board. After having successfully privatized the NJ toxic site cleanup program, polluters are now seeking to gut the technical requirements of the cleanup program, which are implemented via “guidance documents”.

Recent very  high profile illustrations of the importance of enforceable DEP guidance documents and Technical Manuals are: 1) chemical vapor intrusion into 450 homes in Pompton Lakes from the Dupont site; 2) chemical vapor intrusion into Atlantic Highlands Elementary school from a nearby toxic site; 3) toxic air pollutions and cancer risks assessments in Paterson NJ.

My testimony provided numerous examples of 1) why Technical Manuals (see NJDEP-Land Use Regulation Program-Notice of Revision and Updating of Freshwater Wetlands … and  NJPDES Discharge to Ground Water Technical Manual (June 2007) and this and this and this); 2) why DEP guidance documents raise enforcement issues (see this and this and this and this and this and this and this and this and this and this; 3) why stricter state laws and DEP regulations have been enacted and authorized, respectively, by the NJ Legislature over the past 35 years; and 4) why those standards are necessary and strongly supported by the public. As I previously wrote:

The environmental indicators that justify NJ’s stringent environmental and public health regulatory protections are uniformly dire.

NJ is the nation’s most densely populated state with the most cars, most development, most pavement and most toxic pollutants per square mile. NJ’s precious shore is highly over-developed and vulnerable to storms and sea level rise. Yet we continue to lose more than 15,000 acres of forests, farms, and wetlands per year to new development. NJ’s racially and economical segregated urban communities bear unjust disproportionate pollution and health burdens.  Contradicting lots of empty political rhetoric about reducing emissions, NJ’s greenhouse gas emissions continue to rise steeply. NJ has the most toxic Superfund sites and more than 20,000 other toxic sites. Communities are threatened by at least 15 chemical facilities, where an accident or terror attack could kill more than 100,000 residents. In NJ, more than 65% of streams and rivers and 100% of lakes fail to meet water pollution standards and lack cleanup plans. Statewide Fish Consumption Advisories warn that fish and shellfish are too toxic to eat. Over 12% of residential water wells fail health standards. The entire state does not meet health based standards for air pollutants ozone, fine particulates, and numerous cancer causing toxic chemicals; and not surprisingly NJ has the nation’s highest cancer and asthma rates.

No wonder, according to a recent Monmouth University/Gannett poll, 79% of NJ residents – on a bipartisan and socio-economic basis – oppose rollbacks on NJ’s environmental regulations as a solution to the state’s dual fiscal and economic crises.

I ran rapid fire through a list of major NJ environmental programs that the Legislature – in its infinite wisdom -  has authorized over the last 35 years, all of which are more stringent than minimum national standards and many of which are legally required to receive delegation and hundreds of millions of dollars in federal funds for implementing federal laws. The bills under consideration would put at risk and/or roll back all of the DEP regulations and Guidance documents that implement these laws that protect public health and the environment, including:

1. Air Pollution Control Act of 1954

2. NJ Spill Compensation  & Control Act of 1976 (state Superfund, enacted 4 years before Love Canal drove federal Superfund)

3. NJ Water Pollution Control Act, the state Clean Water Act

4. NJ groundwater quality standards

5. land use laws (State Planning Act, MLUL, et al)

6. toxic soil cleanup standards

7. hazardous waste management requirements

8. Safe Drinking Water Act – and 1 in a million cancer risk standard for carcinogens

9. Highlands

10. Pinelands

11. Coastal zone management (CAFRA)

12. solid waste regulation of things like landfills, garbage transfer stations, and restrictions on importation of Philadelphia and NYC garbage

13. NJ’s curbside recycling program

14. water supply allocation regulations

15. pesticide regulations

16. Toxic catastrophe Prevention Act to prevent a Bhopal chemical accident in NJ

17. Public and Community Right to Know about chemicals

18. Discharge Prevention and containment at oil storage tanks

19.  Natural Resource Damage restoration

20. water resource planning (wastewater treatment infrastructure, sewers and septic service areas)

21. Watershed Planning and management

22. stringent enforcement fines and penalties to provide real deterrence nd promote compliance

23. robust public involvement

24. open public records

25. flood hazard controls and development limitations in flood prone areas

26. stormwater management

27. freshwater adn coastal wetlands protection

28. protections for threatened and/or endangered species, including rare plants and ecological communities

29. fisheries/shellfisheries management and safe seafood

30. residential septic controls t block pollution and protect home-buyers

31. private well testing

32. well drilling

33. sludge/residuals management  and beneficial reuse

34. dam safety

35. pollution prevention

36. underground storage tank regulation

37. laboratory certification and standards

38. radiation protection

39. inherently safer technology for chemical production and storage

40. low emission/zero emission vehicles

41. greenhouse gas regulation’

42. promotion of energy efficiency and renewable energy

43. landfill closure/financing

44. compensation for damages from pollution

Perhaps the February snowstorms have made me yearn more than usual for spring this year, and thus made me more aware of the signs.

About a week ago, I started hearing the birds at sunrise in the woods behind the house.

And this morning, when I let the dog out for her morning ritual, I noticed that green things had started jumpin’ up from the snow covered ground in the front yard.

So to bed I returned to listen to nature’s glorious orchestra unfolding – seemingly in sequence by bird species – embarrassed by the fact that of the dozen or more birdsongs I heard, I could name just one: the screech of the bluejay!

No naturalist I!

The First Casualty of the Christie Moratorium is Your Drinking Water

Perchlorate found in 1 in 6 DEP sampled NJ water systems – thousands of NJ residents exposed to chemical linked to thyroid damage that can slow brain development in children.

The saga over attempts to protect NJ’s drinking water from the chemical perchlorate continue – see “Rocket Fuel in Your Water?” and “Playing Politics with Your Drinking Water” and “Chemicals Found in Infant Formula”

When we last left this story in January 2009, former NJ DEP Commissioner Lisa Jackson was being criticized during her US Senate confirmation for EPA Administrator for failing to adopt protective standards during her 3+ year tenure, despite the warnings of DEP’s own scientists, NJ Drinking Water Quality Institute’s 2005 Report recommendations, federal Center for Disease Control studies, and public health experts across the country. The 2005 DWQI Report recommended a 5 ug/L (ppb) standard in part because:

Pregnant women and infants are considered to be sensitive subpopulations for perchlorate’s effects, as hypothyroidism can have serious consequences on neurodevelopment.

When reporters asked why Jackson had failed to act for almost 4 years, here’s the answer some gave:

[DEP Commissioner Lisa] Jackson’s supporters blame Corzine, not Jackson, for New Jersey’s failure to regulate perchlorate.

“I am very disappointed that the state hasn’t moved faster on developing a perchlorate standard,” said David Pringle of the New Jersey Environmental Federation, who sat on the panel that urged the state to regulate perchlorate. “That being said, I fully lay the blame on the governor’s office. DEP was ready to roll two years ago. It was the governor’s office that prevented us from moving forward faster.“  Jan. 13, 2009 ProPublica

Well fast forward to March 2010 and now we have a new Sheriff in Town, one that was endorsed by Dave Pringle. And what did Christie do?

He issued a moratorium that effectively killed the perchlorate standard finally proposed by DEP in March 2009, after 4 years of delay (barring, of course, unforeseen events between now and March 16, the deadline for the March 2009 proposal to lapse. It is highly unlikely that DEP will be able to respond to sham Red Tape Review process comments by then, because Red Tape review ends on March 15. It would be virtually impossible for DEP to read nonetheless respond to public comments in 24 hours. Of course, Christie or Regulatory Czar Guadagno could exempt perchlorate under the public health exception to Executive Order #1, but that too is highly unlikely because it has not been done thus far. The Perchlorate standard should never have been included  on EO#1 target list in Attachment A. Given the new Christie regulatory policies in EO 1, 2 and 3, any perchlorate MCL is not likely to be re proposed for some time and probably not at the 5 ug/L level. This is just another in numerous examples of how Christie’s Executive Orders are quietly rolling back public health and environmental protections.)

PEER Press Release (use this link for better resolution)

For Immediate Release:  Tuesday, March 2, 2010
Contact:  Bill Wolfe (609) 397-4861; Kirsten Stade (202) 265-7337

Christie Deep-Sixes New Jersey Perchlorate Standard

“Red Tape” Review Runs Out Clock on Rocket Fuel in Drinking Water Limit

Trenton — A multi-year effort to stem the spread of perchlorate, a chemical found in rocket fuel, in New Jersey drinking water has been blocked by order of Governor Chris Christie, according to documents posted today by Public Employees for Environmental Responsibility (PEER).  As a result, the chemical found in about one in six NJ public water systems will continue to remain unregulated for the foreseeable future despite the strong recommendation of DEP and academic and private water company scientists from NJ Drinking Water Quality Institute that a strict standard is needed.

Perchlorate is a component of rocket fuel that has many other munitions-related uses. The chemical has been shown to cause thyroid tumors and affects thyroid function, especially in infants, pregnant women and their fetuses.  Perchlorate contamination of groundwater has become a national problem, affecting more than 20 states in hundreds of locations.  The Centers for Disease Control has even found perchlorate in infant formula.  In New Jersey, the state Department of Environmental Protection (DEP) found perchlorate in 21 of 67 public water systems sampled.

On March 16, 2009, DEP proposed to enact a maximum contaminant level (MCL) of 5 micrograms per liter (μg/L) for perchlorate in drinking water.  Under the Administrative Procedure Act, any such proposed regulation must be acted upon within one year or the proposal lapses and the regulatory process must start all over again.  As his very first act, Gov. Christie in Executive Order No.1 froze 12 listed regulations that had not been finalized, starting with the perchlorate standard.  That freeze for “Red Tape Review” lasts until March 15, 2010 – just one day before the perchlorate standard lapses.

“Unless Gov. Christie and DEP enacts the perchlorate standard during this one day window, then New Jersey drinking water supplies will continue to expose thousands of unknowing residents to unsafe levels of this toxic chemical associated with rocket fuel and military ordinance that is linked to slowing the development of children’s brains” stated New Jersey PEER Director Bill Wolfe, a former DEP analyst, noting that starting the perchlorate regulation process all over again would take at least a year but probably much longer.  “This standard has been ready for years and it is business that Gov. Corzine should have taken care of before he left.”

Heavily impacted states such as California and Massachusetts have enacted their own perchlorate standards since national standards by the U.S. Environmental Protection Agency have been stymied for years by opposition from the Pentagon.  At her Senate confirmation hearing in early 2009, EPA Administrator Lisa Jackson pledged she would address perchlorate but the EPA process remains in limbo.

“When Jackson headed DEP, she also vowed to act on perchlorate beginning in 2006, then in 2007 and finally in 2008 but she never acted and we fear a repeat performance of this shuffle,” Wolfe added.  “Action by EPA may be the only hope, however slim, because the Christie administration gives no sign that it will support any public health protections going forward.”

This upcoming March 10^th, the Christie administration has scheduled a public “stakeholders” meeting as part of its moratorium review on pending perchlorate and other Safe Drinking Water Act rules.

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Look at the Christie order that tables the perchlorate standard

http://www.nj.gov/dep/rules/2010_ext.html

See the proposed March 2009 New Jersey perchlorate standard

http://www.nj.gov/dep/rules/notices/031609a.html

Examine the scientific and public health justification for NJ standard

http://www.state.nj.us/dep/watersupply/perchlorate_mcl_10_7_05.pdf

View status of stalled EPA perchlorate regulatory efforts

http://www.epa.gov/safewater/contaminants/unregulated/perchlorate.html

New Jersey PEER is a state chapter of a national alliance of state and federal agency resource professionals working to ensure environmental ethics and government accountability

In a sham move, months after the fact, DEP just “reopened” the public comment period on the dozen (12) environmental rules blocked by the Christie Moratorium in Executive Order #1. But the sham “comment period” is not a public comment period at all! And it masks a blatantly illegal process overseen by the “Red Tape Review” Regulatory Czar.

These 12 DEP rule proposals are under review by the Regulatory Czar and can be vetoed by the “Red Tape Review” process and new “common sense principles” created by  Executive Order #2.

“Common sense” is the cynical slogan that masks controversial new Christie policies to require polluter friendly “cost/benefit analysis” and reverse 35 years of NJ environmental leadership by seeking to rollback NJ’s strict State standards to federal minimums.

DEP’s web page notice advises of a series of upcoming informal “Stakeholder” meetings next week, and a 15 day public “comment period”.

Both are transparent and deeply cynical moves to attempt to paper over glaring legal defects in both Executive Orders # 1 and #2. I guess DEP is trying to avoid repeating the embarrassment Christie suffered after a NJ court struck down his Executive Order that created a moratorium on COAH rules (see Ex. Order #12).

It looks like the lawyers at DEP now do what they are told instead of what is lawful and legally required. Unfortunately, such unprofessional and unethical practices are consistent with recent abuses at DEP, where science has been deeply politicized. Now law is as well.

But because federal environmental laws are involved, there is no way US EPA will allow Christie’s moratorium or Regulatory Czar to block adoption of DEP rules required to  implement federally delegated and/or funded programs under the Clean Air Act, Clean Water Act, Safe Drinking Water Act, Resource Conservation and Recovery Act, and Coastal Zone Management Act.

Similarly, EPA will veto Christie’s attempts to impose cost/benefit requirements on federal programs where costs are not allowed to be considered, such as in setting standards under the Clean Water and Clean Air Acts.

For the wonks out there, here are my preliminary comments to DEP – we’ll keep you posted, particularly on the EPA front.

I categorically oppose each and every one of the twelve (12) proposals listed as “Comment Period Extension and Informal Stakeholder Meetings for Red Tape Review of DEP Proposals” for the following reasons:

1) the Department’s notice and comment procedure; the informal stakeholder process; and the Red Tape Review Task Force Process created by Executive Order #2 do not comply with the rulemaking requirements of the NJ Administrative Procedure Act (NJ APA). Web posting and reliance on the authority of Executive Orders 1-3 can not supersede or replace NJ APA requirements. All 12 proposals were proposed pursuant to and in accordance with the NJ APA requirements. The Department may not – after the fact – revise these procedures.

2) The Department’s web post states the following:

“[Note:  The Department prefers electronic submissions in order to facilitate timely review of comments to meet the timeframes for action in the Executive Orders.]”

The time restriction (i.e. time frame for action pursuant to Executive Orders 1-3 and the Red Tap Task Force review process) can not replace or supersede the requirements of the NJ APA. The March 15 deadline is arbitrary and not in accordance with NJ APA requirements.

3) The substantive requirements of Executive Orders 1-3, particularly the requirements to conduct cost/benefit analysis (CBA) and to consider CBA as a basis for regulatory decisions is ultra vires and not authorized by either the NJ APA or the enabling authority pursuant to which each of the 12 rules were proposed.

4) The “reopening” of the public comment period and retroactive application of new procedures, standards, and decision criteria established by Executive Orders 1-3 is ultra vires, not authorized by law, and inconsistent and in violation with law. This includes the NJ APA requirements as well as the enabling statute for each rule proposal.

5) The Department’s application of the provisions of Executive Orders 1-3 to the subject rule proposals would violate the procedural and substantive requirements of federal environmental laws and the delegation agreements under which NJ implements federal laws.  These laws include, but are not limited to the Safe Drinking Water Act, Coastal Zone Management Act, RCRA, Clean Water Act, and Clean Air Act.

The same violations arise by the Department’s after the fact “reopening” of the public comment procedure in which this comment is submitted as part of.

6) The “reopening” process and the provisions of Executive Orders 1-3 violate federal funding agreements and the National Environmental Partnership Performance Agreement (NEPPS). The Department mad not substitute the provisions of EO and the Red Tape Task Force review process for the requirements of federal law, regulation and funding agreements.

7) Based on 1-6 above, I strongly urge the Department to withdraw this sham “reopening of the public comment process”. Surely, the Department realizes that this “reopening” process is not in compliance with procedural notice/comment requirements of applicable law.

Surely the Department knows that the “common sense principles”, standards, criteria, and informal process established by Executive Orders 1-3 are not authorized by law, can have no legally binding effect, and expressly  violate state and federal law. Accordingly, I request that this “proposal” be withdrawn.

9) The “Red Tape Review” process is an informal process that is not on the record. This process is not transparent and not authorized by law. In may not be considered or relied upon in any way for final agency regulatory decisions regarding the subject rule proposals.

No information considered or decisions reached during that process may be considered as part of the administrative record of the subject rule proposals, and none of it can be relied on as a basis for final regulatory decisions by the Department.

10) The Stakeholder process announced by this proposal is an informal process that is not on the record. This process is not transparent and not authorized by law. In may not be considered or relied upon in any way for final agency regulatory decisions regarding the subject rule proposals.

No information considered or decisions reached during that process may be considered as part of the administrative record of the subject rule proposals, and none of it can be relied on as a basis for final regulatory decisions by the Department.

Based on the above, I request that the Department withdraw this proposal and abandon this process.

I reserve the right to revise and extend these comments. By submitting these comments, I in no way mean to state or suggest that this is a legal procedure. I strongly protest this procedure as patently illegal.

Sincerely,

Bill Wolfe, Director
NJ PEER

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