City Employee Dumps Raw Sewage In The Streets of Bisbee Arizona

February 19th, 2019 No comments
Scene of the crime

Scene of the crime

“Anytime you have raw sewage it’s a concern.” — Carrie Langley Director, Cochise County Health and Social Services

Bisbee Arizona is an old copper mining town – Freeport-McMoRan and Phelps Dodge (PD) have been here awhile:

PD has been operating in the Southwest for over a hundred years. Since PD is an Arizona entity that has continually received favors from the Arizona Legislators through the years, there are no financial bonds required or true estimates made of closure costs in Arizona. However, it can be assumed that Sierrita, Bagdad, Verde, Clarkdale closures will approach the $400 million per mine figure, while the larger operations at Morinci and Bisbee could run much higher than Tyrone. It’s is probable that pumping will also have to continue for some 100 years at several of them mines to keep the contaminants in the groundwater from flowing off the site.

Bisbee also has  a rich labor history (see the book, “Bisbee ’17”, made into a recent documentary film).

Bisbee today is a gentrifying old hippie town that is heavily dependent on tourism.

A tourism highlight in Bisbee is the ANNUAL BISBEE 1000 – THE GREAT STAIR CLIMB.

Well, we found one stairway – at least the bottom 20 steps – that the participants in the 29th annual Bisbee 1000 might want to avoid (see photos above and below).

That’s the site of a recent illegal discharge of hundreds of gallons of raw sewage. That’s right – raw sewage intentionally dumped onto city streets!

The raw sewage flowed down the edge of the stairs, into the streets, parking lots, and cafe’s, and ultimately into the stream that drains Tombstone Canyon, which flows into Mule Gulch and then into the Whitewater Draw and into Mexico. Mule Gulch is already water quality impaired due to discharges fro the Bisbee WWTP. The Arizona DEQ recently took enforcement action for violations by the WWTP:

The NOV included failure to monitor chlorine discharges from the outfall, failure to use the proper chlorine monitoring tool, failure to operate and maintain facilities and systems of treatment, failure to meet quality-control standards, exceedance of permit levels for green algae and failure to report non-compliance.

Here’s that incredible story:

I was basking in the sun at a cafe Friday afternoon and noticed a significant rush of water down the street.

view from the Cafe

view from the Cafe

Since we’re in the desert and it hadn’t rained heavily recently, I was curious about how that much water could be flowing naturally, so after watching the flow for a few minutes, I walked across the street to trace the source of the flowing water.

As I got near, the awful smell told me that this wasn’t water running down the street, but raw sewage!

I soon got to the source about 100 yards up the hill, where I saw a City of Bisbee Department of Public Works employee operating a pump and discharging what I’d guess was a 50 gallon per minute flow of raw sewage to the street. It had been going on for at least 15 minutes.

I immediately demanded that he stop. He refused.

I then went to the nearby County Office building, which housed the County Prosecutor’s Office. I advised them of a crime in progress, described what was going on, and asked them to call the Sheriff or local police.

They refused to do so and asked me to leave.

Outside, I managed to borrow a phone, which I used to call 911 to report a crime in progress. The 911 operator told me not to worry, that she would call the Department of Public Works.

No, I said, because I didn’t have my camera with me to document what was going on, I wanted to call police and have the police respond and file a police report to document the illegal discharge so I could pursue it with US EPA and Arizona DEQ as environmental crimes.

Reluctantly, the operator agreed and 15 minutes later, local police rolled up.

The responding officer, Sgt. Silva, initially was reluctant and tried to dissuade me from pursuing the matter. The officer claimed that he was not an expert, he lacked jurisdiction, and the worker didn’t know what he was doing.

As I was trying to convince him to observe what was going on, interview the worker, and file a police report, a city water tanker truck rolled up and began hosing the sewage sludge residue down. I told the officer that they were trying to cover up their crime ad that he needed to document the raw sewage.

Sgt. Silva then walked up the hill, saw what was going on, spoke with the worker and returned a few minutes later to advise me that I was “absolutely right”.

He told me that the worker had no supervision, because the Director of Public Works was taking his sick leave before retiring and the City Manager had just resigned before getting fired. He promised to file a police report that I could pick up on Monday 2/18/19.

So, here’s the complaint I filed to US EPA and Arizona DEQ on Monday. I hope they take enforcement action and require Bisbee develop a corrective action program for wastewater infrastructure and train their workers to prevent recurrence:

City Worker Dumps Raw Sewage On Streets of Quality Hill.

At approximately 12 pm on 2/15/19, an employee of the City of Bisbee Arizona’s Department of Public Works intentionally pumped hundreds of gallons of raw domestic sewage onto the street (Quality Hill Road). This was not an accidental release, storm event, or failure of a wastewater pipeline or septic system. The sewage was pumped by a motorized pump. The sewage ran down hill and discharged into a stream that drains the area. Upon my observation of this ongoing discharge (it went on for at least 15 minutes at what I’d estimate was at least 50 gpm), I confronted the employee and demanded that he immediately stop the illegal discharge. He initially refused to do so, but did cease a few minutes later. I then contacted local police, who responded, investigated, and filed a police report. Sgt. W. Silva of Bisbee Police Dept. was on scene to observe the discharge and interview the worker. Shortly after Sgt. Silva arrived, a water tanker truck arrived to wash down the sludge residue. In addition to discharging raw sewage directly to a regulated surface water (water of the US), the discharge of sewage had direct contact with numerous people walking, parking, and dining in nearby Cafe’s. My dog was exposed as well. Raw sewage has high levels of pathogens (viruses and bacteria), nutrients, and possible household chemicals, and therefore the illegal discharge violated applicable water quality standards in the receiving water. A police report will be available on 2/18/19.

John Eyre from Arizona DEQ called me this morning. I asked him about enforcement for illegal discharge and for violations of applicable permit requirements and water quality standards for “waters of the US”.

He seemed less than enthusiastic and suggested that there were complicated facts. We had an interesting discussion.

John told me of longstanding wastewater infrastructure problems and a pre-existing consent order with Bisbee regarding historic and cultural resources that limited what could be done.

When I asked him whether US EPA signed off on that, John mentioned a prior lawsuit settlement agreement between US EPA and ADEQ that applied. Apparently, the impacted water bodies are not regulated “waters of the US”, but are solely under the jurisdiction of ADEQ, not US EPA.

[Update – those claims by Mr. Eyre of AZDEQ appear to contradict a recent NPDES permit issued by AZDEQ to the Bisbee WWTP which authorizes discharges to “waters of the US”. The discharge is to Greenbush Draw, tributary to the San Pedro River, so that may be a different receiving water than the Whitewater Draw. I don’t know the local hydrology and regulatory classifications.]

John asked me for photos. After I shot the photos, I spoke with a bartender in Contessa’s to see if they were aware of the problem. The bartender said she had witnessed the event and that the raw sewage was “flowing like a river”.

Here’s some of the after the fact shots I took today and sent him – notice the stains and sludge that still remain:

customers of Contessa's Cantina park and have direct contact with raw sewage

customers of Contessa’s Cantina park and have direct contact with raw sewage

sewage stains and residues remain on street

sewage stains and residues remain on street

sewage residues remain on soil and vegetation

sewage residues remain on soil and vegetation

raw sewage eroded a gully along stairs

raw sewage eroded a gully along stairs

disgusting sewage sludge remains along stairs

disgusting sewage sludge remains along stairs

here is the source of the raw sewage that was pumped out onto public streets

here is the source of the raw sewage that was pumped out onto public streets

Categories: Uncategorized Tags:

NJ Spotlight Doubles Down On Misleading Readers About DEP and “Dirty Dirt”

February 19th, 2019 No comments

Another Example of “Regulatory Relief”  Chickens Coming Home To Roost

… the record reflects that much of the focus during legislative hearings in the spring of 1985 was on the need for various incentives, including tax breaks and regulatory relief, to encourage private investment in the diversion and recovery of recyclable materials from the conventional solid waste stream. (State Commission Of Investigation Report, (March, 2017, @ p. 5)

NJ Spotlight finally reported today on last week’s Senate Environment hearing on “Dirty Dirt”.

Today’s Spotlight coverage seeks to shift the focus away from DEP, environmental regulation, and the recent “dirty dirt” disputes in Vernon and Cumberland County, in favor of what they describe as a long dispute about closing loopholes in and applying NJ’s “A901″ integrity review program conducted by the Attorney General’s Office to the recycling industry:

An eight-year struggle to close loopholes to keep bad actors out of the recycling sector is moving closer to winning legislative approval.

The legislation (S-1683), spurred by a 2011 report by the State Commission of Investigation into illegal dumping of toxic-tainted soil and debris, cleared the Senate Environment and Energy Committee last week.

Note that Spotlight cites the SCI 2011 Report, not the more recent SCI 2017 Report. That is no accident, it is part of Spotlight’s diversion.

As I wrote about that Senate hearing, there are significant and longstanding failures in DEP regulatory oversight of “dirty dirt”, a reality that NJ Spotlight and the Senate legislation completely ignore.

Worse, NJ Spotlight is not only ignoring DEP and the failure to enforce environmental regulations, thereby letting DEP off the hook. Spotlight is actively misinforming and misleading readers about the issue.

Specifically, NJ Spotlight falsely reported that DEP has no regulatory authority in overseeing not only transportation, beneficial re-use, and recycling of dirty dirt, but in the actual disposal of dirty dirty.

NJ Spotlight misreported this in the recent controversy in Cumberland County.

In a January 28, 2019 story, NJ Spotlight, uncritically citing the NJ DEP press office, reported:

Hazardous waste is defined by the federal government as that which presents an imminent danger because of qualities such as explosiveness or corrosiveness, said Larry Hajna, a spokesman for the DEP, which is not required to issue permits for the dumping of contaminated soil.

As I wrote to correct this error – DEP does issue permits “for the dumping of contaminated soil”:

[DEP’s] Hajna is just flat out wrong. While the federal EPA does define “hazardous waste” pursuant to Subtitle C of the federal Resource Conservation  and Recovery Act (RCRA) – and “solid waste” pursuant to Subtitle D of RCRA – NJ’s Solid Waste Manage Act State law and NJ DEP regulations define and regulate “hazardous waste” and “solid waste” far more broadly and strictly than federal RCRA. Hajna also is wrong in his “imminent danger” claim as the basis for EPA federal regulation.

Even after the Navy deal was nixed, DEP doubled down on this false position:

“Brendon Shank, communications director for the DEP, on Tuesday said no state permit is required to ship the soil.”

In fact, while no “DEP permit” is required, DEP does regulate dirty dirt haulers and the DEP does regulate the Cumberland County landfill. DEP issued a solid waste facility permit for its operation, including the types of waste it is allowed to accept. DEP has authority to determine compliance with the landfill permit, and to sample incoming loads to assure compliance and prevent illegal disposal of wastes not authorized by the permit. DEP also regulates all waste haulers that transport and dispose of wastes at NJ solid waste facilities and can sample loads to assure that they are hauling solid waste and not illegal hazardous waste. Read the applicable DEP regulations, which include this:

7:26-2.10 General engineering design submission requirements

[…]

vii. A waste inspection plan, which shall include a program for detecting and preventing the disposal of all unauthorized waste types, including regulated hazardous wastes. This program shall include, at a minimum, but not be limited to, the following:

(1) Random inspections of incoming loads unless the owner or operator takes other steps to ensure that incoming loads do not contain unauthorized waste types, including regulated hazardous waste or TSCA waste;

I provided this correct information and links to the Department regulations and SCI 2017 Report to Spotlight reporter Jon Hurdle, who has yet to correct his error.

In addition to failure to correct this error, Spotlight’s failure to report on lax DEP regulatory enforcement is despite the fact that the SCI Report (2017) NJ Spotlight reports on explicitly attributes a major cause of the problem to lax DEP environmental regulation. The SCI found:

… the record reflects that much of the focus during legislative hearings in the spring of 1985 was on the need for various incentives, including tax breaks and regulatory relief, to encourage private investment in the diversion and recovery of recyclable materials from the conventional solid waste stream. (@ p. 5)…

Recycling centers and solid waste facilities are required to review laboratory reports of tests and compare them with DEP standards for contaminants to determine it is appropriate to for them accept the material.

Thanks to the largely hands-off regulatory netherworld in which New Jersey recyclers operate, however, dishonest brokers, complicit truckers and the recycling centers with which they do business can set their own self-serving agenda, sometimes with links to organized crime and other criminal elements. Operating largely beyond detection by authorities who have no record of their unlicensed existence, these freelance profiteers are able to evade rules governing everything from proper laboratory analysis of the material they are trafficking in to the proper processing and disposal of it appropriate facilities established to safeguard the environment and protect public health and safety. (@ page 8-9)

NJ Spotlight fails to report on this SCI 2017 finding, and instead cites the prior SCI 2011 Report.

NJ Spotlight also failed to correct the error they reported the Cumberland County Naval dirty dirt story.

Shame on them for misleading readers.

We call on Spotlight to correct the error reported in the Cumberland County story and to include lax DEP environmental regulation and enforcement in a future story on the Dirty Dirt  issue.

Categories: Uncategorized Tags:

Obscurity Has Its Benefits

February 16th, 2019 No comments

Desert Sky On Fire

[update below]

Lilac rain, unbroken chain
Song of the saw-whet owl
Out on the mountain, it’ll drive you insane
Listening to the winds howl. ~~~ Unbroken Chain (Grateful Dead)

_DSC5326

_DSC5327

_DSC5328

[Update:  2/19/19 – Just read this quote in a 2/18/19 NY Times article – as his “greatest fantasy”:

“to deliver oneself up, to hand oneself over, entrust oneself completely to the silence of a wide landscape of woods and hills, or sea, or desert; to sit still while the sun comes up over that land and fills its silences with light.” ~~~ Thomas Merton

Amen, Bro!

The photo above is a sunset – so here’s desert sunrise:

_DSC5399

end update.]

Categories: Uncategorized Tags:

NJ DEP Commissioner McCabe is Either Lying or Incompetent On DEP Powers To Regulate “Dirty Dirt”

February 15th, 2019 No comments

If allowed to stand, these radical reinterpretations and narrowing of DEP’s regulatory authority would seriously undermine and effectively gut DEP’s powers to protect public health and environment – including addressing climate change.

Yesterday, the Senate heard proposed legislation to address illegal disposal of “dirty dirt” (see S1683).

No reports on that from media.

But, NJ Spotlight did report that Murphy administration DEP Commissioner McCabe issued a press statement criticizing the Trump EPA for inaction in adopting regulations – known as “MCL’s” – for the class of toxic chemicals known as “PFAS” (hit the links for the details I will discuss in a future post on MCL’s).

The McCabe DEP press release was issued the same day that McCabe was personally slammed in a Newark Star Ledger editorial and harshly criticized again in testimony later that morning in a Senate legislative hearing on illegal disposal of “dirty dirt” (see S1683). That DEP press release was a blatant diversion to cover up McCabe’s own serious failures.

The Star Ledger editorial blasted McCabe personally on her response to illegal disposal of dirty dirt:

After months of effort, Gottheimer got DEP commissioner Catherine McCabe to visit the site in December, but he found that they spent most of that time haggling over the legal definitions of “solid waste” and “de minimus.”

Construction waste is in the eye of the beholder, but the DEP believes its definition is inviolable. The agency monitors the site, yet it claims it has no probable cause to physically inspect the property or collect testing samples.

Besides, violations of soil controls are enforced on a county and municipal level, DEP points out.

McCabe can haggle with this, from NJ DEP recycling regulations:

7:26A-1.5 Burden of proof

(a) In an enforcement action, or on specific request of the Department, persons claiming that they qualify for any exclusion or exemption in this chapter or that they are not otherwise subject to the rules in this chapter shall demonstrate and appropriately document that they satisfy all terms of the law releasing them from the requirements of this chapter.

and this:

7:26A-1.7 Right of entry and inspection

(a) The New Jersey Department of Environmental Protection or an authorized representative acting pursuant to the County Environmental Health Act, N.J.S.A. 26:3A2-1 et seq., shall have the right to enter and inspect any building or other portion of a recycling center, recycling depot or any site at which an exempted activity is conducted pursuant to N.J.A.C. 7:26A-1.4(a), at any time in order to determine compliance with the provisions of all applicable laws or rules and regulations adopted pursuant thereto. This right to inspect includes, but is not limited to:

1. Sampling any materials on site; 

2. Photographing any portion of the recycling center;

3. Investigating an actual or suspected source of pollution of the environment; and

4. Ascertaining compliance or non-compliance with the statutes, rules or regulations of the Department, including conditions of the recycling center approval issued by the Department.

We have been working on exposing the abuses and DEP regulatory failures on “dirty dirt” for over a decade – including while I worked at DEP on developing enforcement policy in the late 1980’s – see this post, where I outline DEP regulations and Guidance documents governing this set of issues:

As I said in a February 8, 2012 Bergen Record story on soil contamination that closed Votee Park in Teaneck:

“This stuff happens again and again and again, and nobody is connecting the underlying dots,” Wolfe said. “Are there laws in place to do this, and who is responsible for enforcing them? The answer is there are laws in place, but the government is completely asleep at the wheel. And the towns are left holding the bag.”

In 2006 testimony to a special legislative investigation on illegal disposal, we called for the Legislature and/or DEP to:

  • Impose cradle-to-grave management requirements for contaminated soils and demolition waste

So, we must call out McCabe’s outrageous and totally unacceptable dissembling, diversions, falsehoods, and failures.

Because McCabe is a lawyer, her position regarding DEP’s jurisdiction and responsibility is so egregiously false and particularly troubling, so much so that she should be called to publicly testify before the Legislature to defend it.

DEP has broad authority and responsibility – repeatedly upheld by NJ Courts – under the NJ Spill Act, NJ Solid Waste Management Act, and NJ Water Pollution Control Act, to regulate both solid waste and recycling, from cradle to grave. DEP has lead authority. This is NOT a local issue. (See NJAC 7:26)

That authority includes DEP regulatory oversight of: the facilities and sites that generate the solid waste or recyclable material; the sampling, analytical chemistry, and regulatory classification of the material; the trucks that haul the material; and the places where the material is processed, treated, stored, recycled, or disposed of.

To address those DEP lies, I wrote the below letter to Chairman Smith:

Dear Chairman Smith:

I was deeply disturbed by the testimony during yesterday’s hearing on “dirty dirt”, particularly regarding statements about DEP’s jurisdiction, authority, and responsibility.

I have been involved in this set of issues for over 30 years, beginning with work as a DEP professional on developing a “waste flow” enforcement policy back in the late 1980’s and NJ’s recycling regulatory framework in the early 1990’s. I also met with Senator Greenstein during the 2006 illegal disposal scandals in her district, so have direct knowledge and experience to offer.

There is a pattern of radical reinterpretation and narrowing of DEP statutory powers and responsibility, including the recent episode at the Cumberland County landfill’s proposed disposal contract with the US Navy. When that story broke, DEP made this misleading statement:

Hazardous waste is defined by the federal government as that which presents an imminent danger because of qualities such as explosiveness or corrosiveness, said Larry Hajna, a spokesman for the DEP, which is not required to issue permits for the dumping of contaminated soil.

Hajna is just flat out wrong. While the federal EPA does define “hazardous waste” pursuant to Subtitle C of the Resource Conservation  and Recovery Act (RCRA) – and “solid waste” pursuant to Subtitle D of RCRA – NJ’s Solid Waste Manage Act State law and NJ DEP regulations define and regulate “hazardous waste” and “solid waste” far more broadly and strictly than federal RCRA. Hajna also is wrong in his “imminent danger” claim as the basis for EPA federal regulation.

Even after the Navy deal was nixed, DEP doubled down on this false position:

“Brendon Shank, communications director for the DEP, on Tuesday said no state permit is required to ship the soil.”

In fact, the DEP regulates the Cumberland County landfill and issues a permit for its operation, including the types of waste it is allowed to accept. DEP has authority to determine compliance with the landfill permit, and to sample incoming loads to assure compliance and prevent illegal disposal of wastes not authorized by the permit. DEP also regulates all waste haulers that transport and dispose of wastes at NJ solid waste facilities and can sample loads to assure that they are hauling solid waste and not illegal hazardous waste. Read the applicable DEP regulations, which include this:

7:26-2.10 General engineering design submission requirements

[…]

vii. A waste inspection plan, which shall include a program for detecting and preventing the disposal of all unauthorized waste types, including regulated hazardous wastes. This program shall include, at a minimum, but not be limited to, the following:

(1) Random inspections of incoming loads unless the owner or operator takes other steps to ensure that incoming loads do not contain unauthorized waste types, including regulated hazardous waste or TSCA waste;

The same false reinterpretation and radical narrowing of DEP’s authority also is occurring regarding DEP’s regulatory jurisdiction over emissions of greenhouse gases. As NJ Spotlight recently falsely reported:

“But the bigger issue for the state may be to regulate carbon dioxide, the most pervasive greenhouse gas pollutant. Sen. Bob Smith (D-Middlesex), the powerful chairman of the Senate Environment and Energy Committee, has urged the state agency to do just that, which would be a broad expansion of its authority.”

Contrary to that claim, there “would be no broad expansion of DEP’s authority”.  Greenhouse gases – not just CO2 – are already subject to DEP regulatory authority. See this 2005 DEP rule adoption document for support:

https://www.nj.gov/dep/rules/adoptions/2005_1121njac7_27.pdf

Getting back to the dirty dirt issue, I was stunned by the DEP claims regarding site access, sampling and DEP jurisdiction and denial of lead responsibility in the Vernon case.

FYI, contrary to testimony, here is DEP’s statutory authority, as set forth in DEP’s own Guidance document: (emphases mine)

https://www.nj.gov/dep/srp/guidance/fspm/pdf/fsmp2005.pdf

3.4 Statutory Authority to Conduct Searches

  • N.J.S.A. 13:1D-9 (General Department Authority)

[The department shall…have the power to:] Enter and inspect any building or place for the purpose of investigating an actual or suspected source of pollution of the environment and ascertaining compliance or noncompliance with any code, rules and regulations of the department.

  • N.J.S.A 58:10A-6 (Water Pollution Control Act)

g. The Commissioner and a local agency shall have a right of entry to all premises in which a discharge source is or might be located or in which monitoring equipment or records required by a permit are kept, for purposes of inspection, sampling, copying or photographing.

  • N.J.S.A. 58:10A-30 (Underground Storage of Hazardous Substances Act)

The Department shall have the authority to enter any property or place of business where under- ground storage tanks or non-operational storage tanks are or may be located; to inspect said tanks or photograph any records related to their operation; and to obtain samples or evidence of discharge from the surrounding air, soil, surface or groundwater.

  • N.J.S.A. 13:1E-42.1 (Solid Waste Management Act)

The Department of Environmental Protection and Energy shall conduct a complete inspection, at least weekly, of each major hazardous waste facility.

  • N.J.S.A 13:1E-65 (Major Hazardous Waste Facility Siting Act)

The Department and the local board of health or the county health department, as the case may be, shall have the right to enter any major hazardous waste facility at any time in order to determine compliance with the registration statement and engineering design, and with the provisions of all applicable laws or rules and regulations adopted pursuant thereto.

  • N.J.S.A. 26:2C-9b (Air Pollution Control Act)

[The department…shall have the power to -] (4) Enter and inspect any building or place, except private residences for the purpose of investigating an actual or suspected source of air pollution and ascertaining compliance or non-compliance with any code, rules and regulations of the department.

  • N.J.S.A. 26:2C-9.1 (Air Pollution Control Act)

No person shall obstruct, hinder or delay, or interfere with, by force or otherwise, the performance by the department or its personnel of any duty under the provisions of this act, or refuse to permit such personnel to perform their duties by refusing them, upon proper identification or presentation of a written order of the department, entrance to any premises at reasonable hours.

  • N.J.S.A 58:12A-4 (Safe Drinking Water Act)
(f) The Commissioner shall have the right to enter any premises upon presentation of appropriate credentials during regular business hours, in order to test, inspect or sample any feature of a public water system and in order to inspect, copy or photograph any monitoring equipment or records required to be kept under the provisions of this act.…
  • N.J.S.A 58:16A-9 (State Flood Control Facilities Act)

(4) Notwithstanding the provisions of any general, special, or local law, the Commissioner, his officers or agents, when engaged on flood control projects may enter upon property for the purpose of making surveys, test pits, test borings, or other investigations.

  • N.J.S.A. 26:2D-9 (Radiation Protection Act)

[The department shall:] (j) Enter and inspect radiation sources, their shielding and immediate surroundings and records concerning their operation for the determination of any possible radiation hazard.

  • N.J.S.A. 13:1F-9 (Pesticide Control Act of 1971)

[The department shall have power, in addition to those granted by any other law, to] c. Enter and inspect any building or place, except private residences, for the purpose of investigating an actual or suspected violation of law relating to pesticides and ascertaining compliance or noncompliance with any rules, regulations or order of the [D]epartment.

  • N.J.S.A. 58:10A-6 et. seq. (Clean Water Enforcement Act)

g. The Commissioner and a local agency shall have a right of entry to all premises in which a discharge source is or might be located or in which monitoring equipment or records required by a permit are kept, for purposes of inspection, sampling, copying or photographing.

In addition, as you know, NJ laws even delegate this broad authority to private individuals – so obviously DEP’s State police powers are far broader (see DEP website):

The Brownfield and Contaminated Site Remediation Act, N.J.S.A. 58:10B-16 , requires the person conducting the remediation to gain access to real or personal property that is not owned by that person for the purpose of conducting remediation: 58:10B-16. Access to property to conduct remediation

I could expand on additional false interpretations that were presented in testimony and media reports.

If allowed to stand, these radical reinterpretations would seriously undermine and effectively gut DEP’s powers to protect public health and environment – including addressing climate change..

I strongly urge you to contact the Attorney General and DEP Commissioner McCabe and request that they issue written opinions of these matters – as well as OLS attorney’s.

Bill Wolfe

Categories: Uncategorized Tags:

NJ Democrats Pushing ALEC Public-Private Partnership Energy Legislation

February 13th, 2019 No comments

State bill follows ALEC model and Trump Infrastructure Plan

More Privatization and Pay-To-Play Politics

Decarbonization of the economy and conversion to a 100% renewable energy infrastructure will cost many billion dollars. We simply can not afford to tack on 15 – 20% more in corporate profits, graft, and crony capitalism that the bill would produce.

(Update: 2/14/19 – in an unusual and embarrassing move, the Committe held the bill, with no explanation or public testimony. Hopefully its dead. Minor victory. End update.)

Tomorrow, the Senate Environment Committee will consider proposed legislation (S2958) which would “Establishes the “Energy Infrastructure Public-Private Partnership Act.”

In plain langue, this means more privatization of energy infrastructure.

NJ Spotlight ran the set up story yesterday, which inadvertently exposed the vultures circling the carcass of our decrepit 19th century energy infrastructure, gleefully anticipating another round of pay to play, patronage and pillage (P3):

The legislation would allow private entities to be responsible for designing, building, financing, operating, and maintaining the energy projects. The bill provides a lot of flexibility on financing, letting private entities take advantage of tax abatements, long-term bonding, and other funding mechanisms.

“It has the potential to fund billions of dollars of projects that otherwise would not be done,’’ Goldenberg said. In some cases, the projects could include renewable energy — like solar or wind or geothermal — as well as more conventional power systems, like combined heat and power.

We recently suggested that Spotlight had turned a blind eye to the privatization issue, perhaps due to conflicts of interest with Spotlight contributors. But we were wrong – no more blind eye: they now fully embrace and promote it.

The bill is co-sponsored by Senators Sarlo (D) and Oroho (R-ALEC).

As we’ve noted, Senator Oroho is the NJ Chair representative on the American Legislative Exchange Council (ALEC).

ALEC was exposed as a Koch brothers funded right wing ideological think tank and propaganda mill that drafts radical model legislation that is then stealthed into State legislatures to further a corporate agenda of privatization, deregulation, tax cuts, dismantling of government and austerity, among other radical right wing projects.

Not surprisingly, the NJ bill closely follows the ALEC model bill, Establishing a Public-Private Partnership (P3) Authority Act

This Act establishes a state Partnership Committee and an Office of Public-Private Partnerships to identify and establish public-private partnerships and approve qualified bidders, requests for proposals, and template contracts. The Act is designed to improve public operational efficiency and environmental performance, promote public safety, attract private investment in the state, and minimize governmental liabilities.

Ironically, the ALEC model is actually more sensitive than the NJ bill to public participation, open government, accountability, and transparency and seeks more objective technical performance standards for public-private partnership agreements and contracts.

The NJ bill expands a pattern by NJ Democrats of privatization of critical infrastructure, with an important difference. (ALEC has model legislation on all that as well – interested readers can start with wastewater).

Prior NJ Democratic legislative initiatives to promote privatization of toxic site cleanups, drinking water, wastewater treatment, and, most recently, stormwater management, have been stealth efforts that mask the real policy objectives and ideological assumptions.

With this effort to expand privatization of energy infrastructure, the ideological mask is off. No more stealth. Democrats now brazenly reveal their corporate ideological agenda.

The NJ bill explicitly is based on Neoliberal austerity assumptions (recall the Grover Norquist quote about making government small enough to “drown in the bathtub”). The bill finds that:

The need to upgrade the State’s energy infrastructure comes at a time of fiscal austerity and budgetary constraints. Governmental entities have witnessed dramatic reductions in available revenues as a consequence of the recent recession and major storm events, among other reasons, which have adversely affected the ability of State, county, and municipal governments to make needed investments in energy infrastructure.

Austerity and government budget cuts – as well as tax cuts and corporate subsidies that drain government budgets – are a matter of ideology and conscious policy. They are not, as the bill claims, a “consequence of the recent recession and major storm events,”

Based on this Orwellian finding, the bill openly promotes privatization:

b. The Legislature therefore determines that:

     (1)  It shall be the public policy of this State to foster energy-related public-private partnerships that will enable governmental entities to partner with private entities to develop needed state-of-the-art energy projects and obviate or minimize the need for capital investments in energy projects by governmental entities, taxpayers, and energy public utility ratepayers;

     (2)  In order to foster the energy projects contemplated by P.L.    , c.    (C.      ) (pending before the Legislature as this bill), it is necessary and appropriate for the Legislature to authorize the use of public-private partnerships to leverage private sector financial resources and expertise and permit governmental and private entities to share the responsibilities and benefits of these projects;

Shamefully, the bill promotes this ideological agenda hiding under the skirts of so called “weather events”  – no mention of climate change – like Superstorm Sandy and slogans about “vulnerability” and “resilience”:

2)  The increasing magnitude and frequency of weather events, such as Winter Storm Quinn, Hurricane Irene, and Superstorm Sandy, and the devastation they inflicted on the State, has revealed the vulnerability, inadequacies, and obsolescence of the State’s energy infrastructure, which has failed, sometimes for prolonged periods of time, to provide adequate, reliable, and resilient service to the State;

Weather events? Not climate change? ALEC is a climate denier too.

Yet the bill would do nothing to mandate reduction in fossil energy consumption and greenhouse gas emissions that are driving the underlying vulnerability and damaging energy infrastructure.

The NJ bill also shares core premises and programs of the failed Trump Infrastructure Plan – a plan denounced by national Democrats and many others, who railed against privatization, corruption, conflicts of interest, and “crony capitalism”. The Hill reported:

Democrats on the Joint Economic Committee have unveiled a new report that bills the administration’s proposal as a “bait and switch,” slamming the public-private partnerships the White House is slated to expand in the plan.

“We can all agree that our infrastructure needs a major investment and upgrade, but indications of the president’s plan simply won’t cut it,” Sen. Martin Heinrich (D-N.M.), the ranking member of the committee, said in a statement. ….

But the proposed expansion of public-private partnerships quickly ran into opposition from critics, who say the incentive program won’t provide an adequate revenue source for a comprehensive overhaul of U.S. infrastructure.

“While there may be room to increase the usage of [public-private partnerships] in the United States, it is unrealistic to expect a large enough increase in projects to account for the level of investment that the economy needs or the administration is promising,” Democrats on the Joint Economic Committee said in their report.

Critics of the administration’s expected principles emphasize the federal government’s crucial role in funding infrastructure, while Trump himself has questioned whether the use of public-private partnerships for infrastructure would work.

Private firms would look to invest in projects that can recuperate costs through potential revenue sources like user fees or tolls, but critics are also concerned about both profitability and possible conflicting interests between the public and private sectors...

The administration is also running into allegations of corrupt conflict-of-interests in its drafting of a plan to rebuild the nation’s infrastructure. Democracy Forward, a nonprofit group, released a report Tuesday accusing the Trump administration of creating a proposal borne out of “crony capitalism.”

“President Trump’s infrastructure strategy would leave American communities behind, as private special interests like his friends and business associates get rich,” the report says.

The NJ Democratic bill also closely follows a failed national Republican US Senate Bill – known as the Energy Savings Through Public-Private Partnerships Act of 2017

Yet we hear about none of that from cheerleading NJ Spotlight.

The NJ bill comes at a time when national progressives are driving the policy agenda, with calls for a Green New Deal, Medicare For All, and expansions of government and the public realm are receiving huge media coverage and public support.

A time when Neoliberalism and austerity have been intellectually discredited and shown as failures

The NJ bill comes at a time when discussion of Socialism and criticism of capitalism are no longer taboo in American politics.

So, why are NJ corporate Democrats going in the opposite direction?

Are there any progressive voices in the NJ Democratic Party that can stand up and call this out?

Decarbonization of the economy and conversion to a 100% renewable energy infrastructure will cost many billion dollars. We simply can not afford to tack on 15 – 20% more in corporate profits, graft, and crony capitalism that the bill would produce.

Will the “green” groups raise these concerns, or are they wholly owned subsidiaries of the corporate Democrats?

We’ll listen in tomorrow and let you know.

Categories: Uncategorized Tags: