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DEP Creates Sham Process To Cover Legal Defects in Christie Orders

February 28th, 2010 No comments

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.

8) 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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On the Eve of Destruction

February 27th, 2010 No comments
AF researcher Katey Walter lights a pocket of methane on a thermokarst lake in Siberia in March of 2007. Igniting the gas is a way to demonstrate, in the field, that it contains methane

UAF researcher Katey Walter lights a pocket of methane on a thermokarst lake in Siberia in March of 2007. Igniting the gas is a way to demonstrate, in the field, that it contains methane

Photo source – story link

edvard-munch-the-scream_-c1893.2

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Bob Martin Comes Out

February 27th, 2010 No comments

[Update: 3/2/10 - read Martin interview by Todd Bates/Kirk Moore of APP, plus more in depth blog coverage by Bates]

We previously criticized DEP Commissioner nominee Bob Martin for failing to make a public statement of his vision for DEP and post his bio on the DEP website, as is traditional practice for incoming Commissioners.

That statement and bio are necessary parts of demonstrating leadership of the Agency and they set the stage for the qualifications, priorities, and policy agenda to be explored during Senate confirmation hearings. (read Martin interview here).

In the spirit of fairness, we are pleased to report that Martin finally has come out. Because we were harsh critics, we now post his bio and message to DEP employees, which was dated January 27, 2009, but just posted on the DEP web page (the DEP web page was updated/created on Feb. 24. A one month lag in posting is somewhat odd from a person who touts his IT experience. I guess his Senate confirmation hearing is scheduled. )

For now, I will only note disturbing policy themes and questionable priorities:

1. Martin’s bio stresses his experience in privatization and deregulation of public services and infrastructure (public utility/energy and water systems).

2. Martin’s bio provides no clear facts on exactly what his consulting experience is – I have read that Accenture, his firm, was known for downsizing and off shoring jobs. In my view, Martin’s bio does not demonstrate satisfaction of the statutory minimums required for the job, which are to be “qualified by training and experience to perform the duties of the office” as follows:

13:1B-2. Commissioner of Conservation and Economic Development; appointment;  term;  salary
The administrator and head of the department shall be a commissioner, who shall be known as the Commissioner of Conservation and Economic Development, and who shall be a person qualified by training and experience to perform the duties of his office.  The commissioner shall be appointed by the Governor, with the advice and consent of the Senate, and shall serve at the pleasure of the Governor during the Governor’s term of office and until the appointment and qualification of the commissioner’s successor.

[Note: The Department of Conservation and Economic Development was abolished an recreated as DEP on April 22, 1970 - the elimination of the economic development function is additional evidence in support of point #5 below]

3. Martin’s message to DEP employees repeats his emphasis on “robust cost/benefit analysis” (CBA is now mandatory for all DEP regulations/ under Executive Order #2)

Because regulations set the requirements for all permits issued by DEP, all environmental permits will be subject to CBA as well.

Cost benefit analysis is fraught with major controversies as a regulatory tool.

Worse, I have no idea what Martin means by the term “robust” – this is highly questionable, because DEP has just one economist on staff and he is not trained in CBA.

So, lack of DEP capacity likely will be used to open the door for industry conducted CBA and be used as a policy basis to scale back regulations.

To illustrate the likely abuse of CBA, on February 8, 2010, DEP Assistant Commissioner Nancy Wittenberg testified to the Senate Environment Committee that DEP would apply cost benefit analysis – after the fact – in making the Oyster Creek cooling tower final permit decision. The Oyster Creek Draft Surface Water Renewal Permit (pdf) issued by DEP in January did NOT include cost/benefit analysis, so I fail to see how DEP legally can do so after the fact. Wittenberg also confirmed that DEP would reply on “outside help“: (link to APP story)

The committee chairman, Sen. Bob Smith, D-Middlesex, had introduced legislation to require cooling towers before the DEP last month announced it would make that a requirement of a new discharge permit. Smith has promised in this legislative session to move on several proposals aimed at dealing with the bay’s ecological problems.

He asked Wittenberg how long the DEP will need to act on the plant permit.

“At least a year,” she said. Two public hearings are planned during the comment period that ends March 15, and then the DEP will need help from outside experts to conduct a cost-benefit analysis of the towers proposal, Wittenberg said.

It will be a heavy lift for the department,” she added.

4. Martin’s message to DEP employees cites the “economic collapse” as a significant concern to him and DEP staff, yet he fails to note that the collapse was not created by DEP or environmental requirements, but by his private sector pals taking advantage of privatization and deregulation policies, while focused exclusively on economic issues and flawed tools, like cost benefit analysis..

5. Martin wants DEP “to play a key role in the economic growth of the state“. For now, I would just like to remind Martin and Senate Judiciary Committee members that promoting economic growth is NOT the statutory mission of DEP. Because so few seem to know what the DEP is supposed to do, here is DEP’s mission and powers, as established in DEP’s enabling legislation (note especially the lack of economic development powers):

13:1D-9  Powers of department.

12.The department shall formulate comprehensive policies for the conservation of the natural resources of the State, the promotion of environmental protection and the prevention of pollution of the environment of the State. The department shall in addition to the powers and duties vested in it by this act or by any other law have the power to:

a.Conduct and supervise research programs for the purpose of determining the causes, effects and hazards to the environment and its ecology;

b.Conduct and supervise Statewide programs of education, including the preparation and distribution of information relating to conservation, environmental protection and ecology;

c.Require the registration of persons engaged in operations which may result in pollution of the environment and the filing of reports by them containing such information as the department may prescribe to be filed relative to pollution of the environment, all in accordance with applicable codes, rules or regulations established by the department;

d.Enter and inspect any property, facility, building, premises, site or place for the purpose of investigating an actual or suspected source of pollution of the environment and conducting inspections, collecting samples, copying or photocopying documents or records, and for otherwise ascertaining compliance or noncompliance with any laws, permits, orders, codes, rules and regulations of the department. Any information relating to secret processes concerning methods of manufacture or production, obtained in the course of such inspection, investigation or determination, shall be kept confidential, except this information shall be available to the department for use, when relevant, in any administrative or judicial proceedings undertaken to administer, implement, and enforce State environmental law, but shall remain subject only to those confidentiality protections otherwise afforded by federal law and by the specific State environmental laws and regulations that the department is administering, implementing and enforcing in that particular case or instance. In addition, this information shall be available upon request to the United States Government for use in administering, implementing, and enforcing federal environmental law, but shall remain subject to the confidentiality protection afforded by federal law. If samples are taken for analysis, a duplicate of the analytical report shall be furnished promptly to the person suspected of causing pollution of the environment;

e.Receive or initiate complaints of pollution of the environment, including thermal pollution, hold hearings in connection therewith and institute legal proceedings for the prevention of pollution of the environment and abatement of nuisances in connection therewith and shall have the authority to seek and obtain injunctive relief and the recovery of fines and penalties in a court of competent jurisdiction;

f.Prepare, administer and supervise Statewide, regional and local programs of conservation and environmental protection, giving due regard for the ecology of the varied areas of the State and the relationship thereof to the environment, and in connection there with prepare and make available to appropriate agencies in the State technical information concerning conservation and environmental protection, cooperate with the Commissioner of Health and Senior Services in the preparation and distribution of environmental protection and health bulletins for the purpose of educating the public, and cooperate with the Commissioner of Health and Senior Services in the preparation of a program of environmental protection;

g.Encourage, direct and aid in coordinating State, regional and local plans and programs concerning conservation and environmental protection in accordance with a unified Statewide plan which shall be formulated, approved and supervised by the department. In reviewing such plans and programs and in determining conditions under which such plans may be approved, the department shall give due consideration to the development of a comprehensive ecological and environmental plan in order to be assured insofar as is practicable that all proposed plans and programs shall conform to reasonably contemplated conservation and environmental protection plans for the State and the varied areas thereof;

h.Administer or supervise programs of conservation and environmental protection, prescribe the minimum qualifications of all persons engaged in official environmental protection work, and encourage and aid in coordinating local environmental protection services;

i.Establish and maintain adequate bacteriological, radiological and chemical laboratories with such expert assistance and such facilities as are necessary for routine examinations and analyses, and for original investigations and research in matters affecting the environment and ecology;

j.Administer or supervise a program of industrial planning for environmental protection; encourage industrial plants in the State to undertake environmental and ecological engineering programs; and cooperate with the State Departments of Health and Senior Services, and Labor and Workforce Development, and the New Jersey Commerce Commission in formulating rules and regulations concerning industrial sanitary conditions;

k.Supervise sanitary engineering facilities and projects within the State, authority for which is now or may hereafter be vested by law in the department, and shall, in the exercise of such supervision, make and enforce rules and regulations concerning plans and specifications, or either, for the construction, improvement, alteration or operation of all public water supplies, all public bathing places, landfill operations and of sewerage systems and disposal plants for treatment of sewage, wastes and other deleterious matter, liquid, solid or gaseous, require all such plans or specifications, or either, to be first approved by it before any work thereunder shall be commenced, inspect all such projects during the progress thereof and enforce compliance with such approved plans and specifications;

l.Undertake programs of research and development for the purpose of determining the most efficient, sanitary and economical ways of collecting, disposing, recycling or utilizing of solid waste;

m.Construct and operate, on an experimental basis, incinerators or other facilities for the disposal of solid waste, provide the various municipalities and counties of this State, and the Division of Local Government Services in the Department of Community Affairs with statistical data on costs and methods of solid waste collection, disposal and utilization;

n.Enforce the State air pollution, water pollution, conservation, environmental protection, solid and hazardous waste management laws, rules and regulations, including the making and signing of a complaint and summons for their violation by serving the summons upon the violator and thereafter filing the complaint promptly with a court having jurisdiction;

o.Acquire by purchase, grant, contract or condemnation, title to real property, for the purpose of demonstrating new methods and techniques for the collection or disposal of solid waste;

p.Purchase, operate and maintain, pursuant to the provisions of this act, any facility, site, laboratory, equipment or machinery necessary to the performance of its duties pursuant to this act;

q.Contract with any other public agency or corporation incorporated under the laws of this or any other state for the performance of any function under this act;

r.With the approval of the Governor, cooperate with, apply for, receive and expend funds from, the federal government, the State Government, or any county or municipal government or from any public or private sources for any of the objects of this act;

s.Make annual and such other reports as it may deem proper to the Governor and the Legislature, evaluating the demonstrations conducted during each calendar year;

t.Keep complete and accurate minutes of all hearings held before the commissioner or any member of the department pursuant to the provisions of this act  All such minutes shall be retained in a permanent record, and shall be available for public inspection at all times during the office hours of the department;

u.Require any person subject to a lawful order of the department, which provides for a period of time during which such person subject to the order is permitted to correct a violation, to post a performance bond or other security with the department in such form and amount as shall be determined by the department. Such bond need not be for the full amount of the estimated cost to correct the violation but may be in such amount as will tend to insure good faith compliance with said order  The department shall not require such a bond or security from any public body, agency or authority. In the event of a failure to meet the schedule prescribed by the department, the sum named in the bond or other security shall be forfeited unless the department shall find that the failure is excusable in whole or in part for good cause shown, in which case the department shall determine what amount of said bond or security, if any, is a reasonable forfeiture under the circumstances. Any amount so forfeited shall be utilized by the department for the correction of the violation or violations, or for any other action required to insure compliance with the order;

v.Encourage and aid in coordinating State, regional and local plans, efforts and programs concerning the remediation and reuse of former industrial or commercial properties that are currently underutilized or abandoned and at which there has been, or is perceived to have been, a discharge, or threat of a discharge, of a contaminant. For the purposes of this subsection, “underutilized property” shall not include properties undergoing a reasonably timely remediation or redevelopment process; and

w.Conduct research and implement plans and programs to promote ecosystem-based management.
L.1970, c.33, s.12; amended 1975, c.33; 1981, c.446, s.1; 1983, c.38, s.1; 1984, c.5, s.1; 1997, c.278, s.26; 2007, c.246, s.2; 2007, c.288, s.6.

Here is Martin’s bio and statement to DEP employees, as posted on Feb. 24 on DEP website:

njdep_bob_martinDemonstrating his commitment to building a strong, experienced team, Governor Chris Christie nominated Bob Martin to serve as Commissioner of the Department of Environmental Protection.

An accomplished business and industry leader with recognized expertise in energy and utilities, he served as a key policy adviser throughout Governor Christie’s gubernatorial campaign. He assisted in shaping and drafting then-candidate Christie’s Energy Policy and Environmental Policy, and provided policy guidance on other major issues. In recent years, he also has served as a respected and trusted adviser, primarily in energy policy, to several other candidates for U.S. Senate, congressional and gubernatorial seats.

In 2008, he retired as a partner with Accenture LLP after more than 25 years. Accenture is the world’s largest business and technology consulting firm with more than 140,000 employees around the globe.

Highly experienced in consulting, he has achieved impressive results working with a variety of businesses and industries“ particularly energy and utility companies“ to improve efficiency and enhance performance in an increasingly competitive marketplace. He has expertise in all aspects of business and management consulting, including business strategy and planning, business transformation and re-engineering, IT strategy, systems implementation, and change management. He also has considerable experience in project management of large systems integration and in business re-engineering projects.

Acting Commissioner Martin also has extensive international experience. While living in England from 1991 to 1995, he worked with several large U.K. water and electric utilities as the companies privatized and the markets deregulated. He also spent significant time working with utility and energy companies throughout Europe and Canada.

Actively involved in the community, he was a candidate for State Senate in New Jersey’s 15th District in 2007. He formerly served as the Chairman of the Finance Committee for the Mercer County Republican Committee. He served on the Salvation Army Advisory Board of Greater New York from 2001 until January 2010, and as its Chairman from 2007 until January 2010. He served on the Princeton Healthcare System Foundation Board in 2008 and 2009. He also served on the Board of Trustees at the Chapin School in Princeton from 1996 to 2008, and on the Finance Advisory Committee for Hopewell Township from 2005 to 2007. He has been active in coaching youth soccer and lacrosse in Hopewell Valley for more than13 years.

Born and raised in Massachusetts, Acting Commissioner Martin earned a bachelor of arts in Economics and Sociology from Boston College in 1979 and an MBA from The George Washington University in 1982.

He and his wife, Brenda, have lived in Hopewell Township for more than 14 years. They have three children: Andrew, 24; Sara, 21; and Caroline, 12. Mrs. Martin is a teacher at the Cambridge School in Pennington.

Acting Commissioner Bob Martin’s January 27, 2010 message to DEP Employees

Dear DEP Team:

I want to send a quick note to all of you to introduce myself and to thank you all for a very warm welcome.

I am very honored to be your new Commissioner and to lead this wonderful organization. While I’ve only been here 6 days, I see many good things happening here, and a very talented group of professionals. At the same time, I do see things we can do better and must do better to fulfill Governor Christie’s agenda for action.

Like the Governor, I am personally committed to ensuring that the DEP protects New Jersey’s water, air, land and precious natural resources, and that we rapidly and predictably issue permits, clean up contaminated sites and ensure we protect our treasured open space for future generations. Additionally, our regulations and decisions need to be based on sound science, facts and a robust cost/benefit analysis. We will also continue to vigorously enforce the environmental laws of this state to protect the health and safety of all our citizens. At the same time, in the face of a collapsed economy, we need to play a key role in the economic growth of this State.

My style is to be open and honest and to work with all of you as a team. I want to empower decision making down through our chain of command and have all who come before us for service treated as valued customers.

I plan on walking through most of our locations over the next few weeks to meet as many of you as possible (I think I’m up to about 3 floors completed at 401 E. State) and will continue walking around our Trenton campus for an hour or so most days. A little later in my tenure I also plan to visit as many of our offices, parks and historic sites as possible located outside of Trenton.

There are a lot of very talented people here and I want you all to be part of the solution in improving our operations, efficiency and service to the public.

My commitment to all of you is that I will work as hard as I possibly can to make DEP a great place to work while we continue to protect the environment of this beautiful State. Most importantly, I will always listen and my door is always open.

Thanks!

Bob Martin
Acting Commissioner

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Christie Regulatory Moratorium Blocks Major Environmental Protections

February 26th, 2010 No comments

DEP Releases Targets – Mask now off the Christie environmental attack.

This week, the Christie Administration took a quiet first step that cleared some of the smoke obscuring the impacts of the moratorium and Regulatory Czar created by Executive Oder #1, as well as the implications of the slogan of “common sense principles” mandated by Executive Order #2.

Christie’s EO #1 put a moratorium in place and targeted a specific list of proposed rules across state government. But it was difficult for the public to identify the 160 or so targeted regulations because they were hidden by how they were cited in Attachment A to EO 1 (it took me over 4 hours to wade through a stack of NJ Registers in the law library last week).

Way back on November 5, 2009, we warned “Christie Proposes Moratorium on Regulations – Signals Major Threat to Environment” – but that analysis was based on a list of DEP proposed rules pending at the time.  While Governor Corzine issued a January Order to extend the expiration date and thus protect some important rules from the Christie Moratorium, Corzine could not shield many other major DEP proposed new rules adn re-adoptioon of existing rules.

Now, we know which DEP rule proposals are impacted by the moratorium and subject to veto by the Regulatory Czar. Now that DEP has published a list of DEP proposed rules listed in EO #1, the facts are now in to vindicate our November claim.

While Christie has complained loudly that the outgoing Corzine administration took last minute actions to limit his options, amazingly, Christie’s Orders are retroactive and block environmental rules proposed by DEP long before the November Gubernatorial election, and thus represent a gross abuse of power.

Christie’s EO 2 created new “principles” that hide behind the misleading slogan of “common sense”. But that slogan now requires that environmental and public health protections be justified based on cost/benefit analysis. This sets up clear conflicts and trade-offs  between protecting clean air and safe drinking water, versus how much the business community must pay to protect them. That kind of debate will get very ugly, real fast.

The Orders also provide new closed door unaccountable opportunities for environmental protections to be attacked by corporate interests and scaled back to federal minimum standards, unless they can surmount arbitrary new political hurdles set by the Regulatory Czar. “Let’s make a deal” was only a 1960′s TV show – but the Regulatory Czar’s secret deals are real and will not be televised.

The Department of Environmental Protection quietly posted on the DEP website a public notice that confirms our prior criticisms that Christie Orders represent an all out assault on environmental protections. DEP posted a list of 12 major environmental regulations specifically targeted in and blocked by EO 1. The notice also identifies some of the new Christie policies that hide behind the “Common sense” slogan in EO #2.

The list is significant and includes the following rules that are blocked under the moratorium and subject to veto by Regulatory Czar Guadagno: :

  1. Safe Drinking Water Act Rules; Private Well Testing Act Rules; and Regulations Governing the Certification of Laboratories and Environmental Measurements – Maximum Contaminant Level (MCL) for Perchlorate. See 41 N.J.R. 1128(a); March 16, 2009.  (DEP Docket No. 02-09-02/549)
  2. Freshwater Wetlands Protection Act Rules – Determination of Substantial Reliance on a Letter of Interpretation.  See 41 N.J.R. 1314(a); April 6, 2009.  (DEP Docket No. 04-09-03/710) [Note: we oppose this rule - it is NOT a pro-environment rule, but it should not be killed via EO or by an unaccountable Regulatory Czar]
  3. Processing of Damage Claims Pursuant to the Sanitary Landfill Facility Closure and Contingency Fund Act – Readoption with amendments.  See 41 N.J.R. 2759(a); July 20, 2009.  (DEP Docket No. 10-09-06/703)
  4. Coastal Permit Program Rules; Coastal Zone Management Rules; Flood Hazard Area Control Act Rules – Wind and Solar Energy.  See 41 N.J.R. 3168(a); September 8, 2009. (DEP Docket No. 12-09-08/734)
  5. Water Pollution Control Act Rules – Readoption.  See 41 N.J.R. 3776(a); October 5, 2009. (DEP Docket No. 13-09-09/728)
  6. Natural Areas and the Natural Areas System Rules – Readoption with amendments.  See 41 N.J.R. 4154(a); November 16, 2009. (DEP Docket No. 15-09-10/735)
  7. Air Quality Management – Sulfur in Fuels.  See 41 N.J.R. 4156(a); November 16, 2009. (DEP Docket No. 14-09-10/676)
  8. Safe Drinking Water Act Rules – Readoption.  See 41 N.J.R. 4381(a); December 7, 2009. (DEP Docket No. 17-09-11/749)
  9. Underground Storage Tanks - Readoption.  See 41 N.J.R. 4384(a); December 7, 2009.  (DEP Docket No. 16-09-10/624)
  10. Surface Water Quality Standards – Nutrient Policies; Phosphorus Criteria.  See 41 N.J.R. 4587(a); December 21, 2009. (DEP Docket No. 21-09-11/754)
  11. Forestry – Readoption.  See 42 N.J.R. 14(a); January 4, 2010. (DEP Docket No. 24-09-12/687)
  12. Safe Drinking Water Act Rules – Environmental Enforcement Enhancement Act amendments and Permit Efficiency Review Task Force amendments.  See 42 N.J.R. 17(a); January 4, 2010. (DEP Docket No. 19-09-11/751)

We believe that the Christie Orders are not only very bad policy for NJ, but violate state and federal administrative and environmental laws.

We hope the Senate Judiciary Committee probes these legal and environmental policy issues in detail during DEP nominee Bob Martin’s upcoming confirmation hearing.

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Something Is Rotten in the City of Paterson, NJ

February 25th, 2010 No comments
Paterson City Hall

Paterson City Hall – statue of Garret Augustus Hobart dominates entrance

[Update: May 12, 2010 - guess the voters felt the same way: Jeffery Jones wins mayor's seat in Paterson upset ]

[Update: 3/4/10 - DEP has revised the Paterson study and posted a new Final Report version dated 2/24 - disregard criticism of the deletions described below. More to follow on exactly how the changes to the Report happened. - end updates]

To paraphrase the Bard, something stinks in Paterson, NJ – and the fish rots from the head down.

Paterson Mayor "Joey" Torres

Paterson Mayor “Joey” Torres

Maybe he’s dreaming of having his own statute in front of City Hall someday, but someone apparently forgot to tell Mayor “Joey” Torres that the age of industrial robber barons, political bosses, and urban machines is long over.

How can it be that AFTER the press reports critically on a DEP study that documents serious environmental justice, air toxics, and respiratory health problems in a predominately black and latino city (see: City’s air may raise cancer risk and followup story Paterson air study raises questions) that when the public hearing is held – look at those empty City Council Chairs – NOT ONE COUNCILMAN SHOWS UP – and DEP bureaucrats feel emboldened to even laugh (during Black History Month, no less).

Last night, DEP led a public meeting to brief the community on the findings of the recently released controversial air toxics study that found elevated levels of cancer causing chemicals  (see this and this and this for background on the DEP Study).

In addition to no City Council members showing up, there were no residents there either (at least any willing to introduce themselves or speak). To their credit, US Senators Launteberg and Menendez and Congressman Pascrell sent representatives to the hearing and expressed their support, as did US EPA. (Could failure to organize and turnout the disproportionately adversely impacted Paterson community have anything to do with this?)

But, the whole affair reminded me of the classic line: Forget it Jake, its Chinatown“.

What would Sojourner Truth say?

IMG_7345

The empty City Council and audience chairs were surrounded by posters of a very different historical tradition:

IMG_7346Some of those heroes gracing the perimeter of the empty Council chambers literally took the law into their own hands and fought for justice:

IMG_7349

While others wrote eloquently of the struggle:

IMG_7354

Did they fight and dream for empty chairs?

IMG_7358

Right off the bat, I knew this meeting was going to be a disaster.

The Mayor’s aid distributed 5×7 file cards. All questions had to be written down on those cards. The Mayor – not the citizen questioner – would then read the question to DEP.

After taking control of the meeting and shutting down any dissent from those who objected to the inappropriate 5×7 card format – including making rude remarks to a woman and her 9 year old son who were trying to ask well informed questions – the Mayor then proceeded to read a lengthy (DEP prepared?) statement.

Paterson Mayor "Joey" Torres reads a detailed statment at ouytset of hearings. A prior private meeting with DEP allowed them to get their stories straight.

Paterson Mayor “Joey” Torres reads a detailed statement at outset of hearings. A prior private meeting with DEP allowed them to get their stories straight.

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DEP then spoke for 45 minutes to present the study and defend it from criticism voiced in news coverage. DEP’s presentation focused on mobile sources (cars and trucks) as the major cause of the problem, a problem for which DEP conveniently had no responsibility or legal authority to regulate.

DEP brushed off my criticism that they gutted the Report by deleting the high “combined cancer risk” findings in the draft report. While not retracting them, DEP claimed that those findings were deleted because “DEP does not do risk assessment that way” Duh! DEP risk assessment is flawed because it ignores known cumulative and synergistic effects of multiple pollutants people are exposed to!

DEP even defended manipulative and dishonest PR practices, including the deletion of draft study findings and recommendations, including:

1) elevated rates of respiratory disease, especially in children.

The following draft Report findings were deleted in their entirely from the final Report:

Paterson has more than three times the state average for hospitalization rates due to asthma (Wallace, 2003). A study in Paterson (Freeman et al, 2002) found that 21% of third graders had been diagnosed with asthma or a related health problem. Paterson has the fifth highest hospitalization rate for asthma in NJ (NJDHSS, 2003). Twenty eight air toxics (Leikauf, 2002) have been associated with exacerbations of asthma and the 1996 [EPA] National Air Toxics Assessment identified fourteen air toxics which are causing elevated cancer and non-cancer risks (NJDEP, 2003) in Passaic County

2) local industrial emission “hot spots”, located close to homes and schools:

The following draft Report findings were deleted in the Final report:

[Paterson] was selected because it qualifies as an air toxics “hot spot” due to the industrial (e.g. textiles; dyes; chemicals; metal fabrication, refinishing and recovery; plastics; printing; electronics; paper and food products, etc) commercial (e.g. dry cleaning; photo labs; commercial heaters/boilers; print shops, etc) and mobile sources (US I-80, Rt. 19) dominated sectors. Schools have been chosen as monitoring site locations allow UCAMPP the unique opportunity to monitor air toxics where children, a susceptible subpopulation, spend a portion of their time.

Worse, the community was provided a false rationale as to why Paterson was selected for the study.

3) Why Paterson was selected for the study – because of race, ethnicity, and income statistical profile (plus “toxic hot spots”).

The following draft report findings were deleted in the Final report:

Paterson was chosen for this project because it is a mixed-use urban community with high population density and many of the characteristics of an environmental justice community.

Paterson has all the characteristics of an environmental justice community with a disproportionately large percentage of families living at or below the poverty level. Nineteen percent of the families in Paterson live at or under the poverty level compared to 6.3% for the state. There are 149,000 residents, of which 1/3 are white, 1/3 black and the balance are some other race. Fifty percent of the population considers themselves to bee Hispanic or Latino. The population density is over 17,210 people per square mile.

4) relationship to prior Camden Pilot study and Environmental Justice concerns

The Paterson study was the next phase in north jersey, of a pilot community environmental justice initiative begun in Camden, NJ. The Camden case is highly significant, as a DEP air permit issued there to St. Lawrence Cement was stuck down by a US District Court judge on environmental justice grounds. US District Court judge Olofsky found:

Much of what this case is about is what the NJDEP failed to consider. It did not consider the pre-existing poor health of the residents of Waterfront South, nor did it consider the cumulative environmental burden already borne by this impoverished community. Finally, and perhaps most importantly, the NJDEP failed to consider the racial and ethnic composition of the population of Waterfront South. ( emphasis mine  South Camden Citizens in Action v. New Jersey Department of Environmental Protection, 145 F. Supp. 2d 505 (D.N.J. 2001). )

The final Report sanitizes and contains no reference to this historical, policy, and scientific context (see this and this)

b) DEP suppressed consideration of cumulative impact risks presented in the draft report

Significantly, the Paterson study was the first DEP attempt to calculate “cumulative risk” by estimating “combined cancer risks of multiple pollutants”. This is a cutting edge EJ public health issue, see: EJAC 2009 Report: Strategies for Addressing Cumulative Impacts in Environmental Justice Communities-March 2009  yet  all this is ignored.

The draft Report calculated “combined cancer risks” (inhalation) from multiple chemical pollutants detected in the air. Combined risks were estimated from 210 to 710 TIMES NJ’s cancer risk policy standard of one in a million lifetime excess cancer risk.  (see page 61 of draft Report here)

In addition to suppressing the draft Report’s unacceptably high “combined risk” findings, the final report also failed to even mention the basic public health science concepts of cumulative and synergistic risks of multiple pollutant (or multiple pathway) exposures. The Final report failed to include any discussion of the pressing issue of cumulative risk that was presented to DEP in a March 2009 Report to DEP by DEP’s own Environmental Justice Advisory Council. According to the Council’s report: (see: EJAC 2009 Report: Strategies for Addressing Cumulative Impacts in Environmental Justice Communities-March 2009

U.S. Environmental Protection Agency (EPA) documents define the term “aggregate risk” as the risk from all routes of exposure to a single substance, and the termcumulative risk” as the risk from all routes of exposure to a group of substances. They are silent on the issue of multiple sources.  In order to have a clear and intelligible discussion about cumulative impacts, it is important for the NJDEP to agree on the definition of terms that are used. Appendix A provides some examples from various sources that might be useful. The choice of definition is not as important as assuring that everyone involved in a single conversation are all using a term with the same definition in mind.

In the mid-1990s, the EPA also developed a “Cumulative Exposure Project” that incorporated multiple pollutants, multiple sources, and multiple pathways (air, food and drinking water), but did not directly address duration. However, the EPA has not been able to extend this effort beyond the inhalation pathway which continues to be addressed by the National-Scale Air Toxics Assessment Project. (see: EJAC 2009 Report: Strategies for Addressing Cumulative Impacts in Environmental Justice Communities-March 2009

In another effort to conceal important information and mislead the public, the final Report deleted findings that the cancer risks exceeded EPA risk range policy. EPA funded the study and EPA has legal oversight over NJDEP’s air program. When EPA’s own risk range is exceeded, they are required to act to reduce those risks under EPA policy and regulations. So the deletion of this”unacceptable risk” finding is highly significant. The draft Report found:

The combined cancer risk at all four sites were at the high end of that the USEPA considers”acceptable risk”, i.e. 1—10(-4) to 1—10(-6). The combined cancer risk was greater at the Paterson sites than at the background site. The greatest risk was observed at the C site 7.1—10(-4).   [My Note: that is 710 in a million, from 7 - 710 TIMES HIGHER THAN EPA acceptable risk].

c) DEP downplayed the risks to minimize public health concerns –  DEP spun the health risks to the community

DEP systematically downplays public health risks of the pollution levels they found by omitting key scientific findings from the study, the high air pollution related health problems cited above, while inserting claims not found in the original study. For example, DEP claims:

  • “There is no immediate public health concern” this is a conclusion that ignores evidence of significant long-term and cumulative effects. The term “immediate concern” is a totally inappropriate standard to apply in this case, where health effects are the outcome of chronic exposures;
  • “The air quality in Paterson is consistent with that of the entire state” this is a vague statement that ignores that the study was designed with a background monitoring station in Chester, NJ and many other specific findings such as chlorine levels in Paterson more than 100 times higher than EPA national model estimates; and
  • “The cancer risk [for p-dichlorobenzene, one of 132 toxics measured] calculated at the one site in Paterson where the elevated concentrations occurred would be 205 in a million”. This statement neglects to mention that this is more than 200 times the one in a million cancer risk guideline used by DEP and that even higher cancer risks were found at other monitoring sites
  • DEP completely fails to mention that the study found the “combined cancer risks” from exposure to toxic chemicals at the high end of what the U.S. EPA considers acceptable risk, and over 700 times higher than New Jersey’s cancer risk standard of one in a million

c) DEP failed to release industrial emissions inventory

One original objective of the study was to inventory all industrial emissions sources within a 1 mile radius of each monitoring station. Yet that facility specific inventory is not included in the final report,. Rather, DEP claims that from 153 to 227 facilities were considered. This failure makes it impossible for the community to know where all the toxic pollution emissions are coming from and the status of DEP permits and enforcement actions at each polluting facility.

Such withholding of vital information only benefits and protects the polluter. It totally frustrates citizen efforts to hold DEP and polluters accountable to clean air laws.

To obtain this information, on December 9, 2009, I filed an OPRA public records request to DEP. That emissions inventory  information has been denied.

d) DEP sanitized Report findings of flaws in DEP air permit database and permit program.

Significantly, this information is required in order to determine the status of Clean Air Act MACT compliance requirements and enforcement issues. Without the information, compliance and DEP permit performance can not be assessed by the community.

The draft Report (@page 19)  - under a headline ”Needed Improvements to NJDEP Emissions Databases” made highly significant negative findings and specific regulatory improvement recommendations that were deleted from the final Report. The draft Report found:

Based on the UCAMPP and other projects done by the Department, it has been recognized that NJDEP needs to improve emissions databases. This can be accomplished by expanding current permit requirements so that facilities would have to submit stack specific speciated VOC’s and HAP’s. This would greatly reduce the resources needed to generate a detailed emissions inventory. The current requirements that major facilities report 36 HAPs at a facility-wide level in their emissions statements needs to be expanded to include additional air toxics (possibly all those with risk based health numbers), be stack specific adn be a requirement for all sources of air emissions not just major sources and reporting thresholds need to be revised to reflect risk. The goal of any model is to try to accurately represent  what is really happening in the given area of study. This can only be achieved through the input of accurate and complete data into the emissions inventory.

e) DEP failed to mandate risk reduction measures on known emission sources- DEP limited the scope of the Report and followup risk reduction measures to voluntary measures, i.e outreach and education.

This arbitrary restriction is scope again only benefits polluters because it fails to educate citizens about the full suite of regulatory and enforcement tools available to DEP to reduce pollution and public health risks in Paterson neighborhoods.

f) DEP has conducted limited to no followup source track-down investigations and air permit and enforcement to mandate emissions reductions and reduce risks.

Conclusions and going forward plan

1. Based on concerns with elevated levels of EPA regulated hazardous air pollutants, EPA provided an additional $157,000 in funding to continue monitoring and pollution source track down. That money was committed by EPA is less than 1 month, which is rapid action and shows that this is a high priority to EPA. The EPA funds were received by DEP last week. The additional monitoring study will begin this spring, will last 12 months, followed by 6 more months of DEP analysis before a final report is issued. (But if DEP can analyze the new data in 6 months, why did it take 3 YEARS in UCAMPP?)

2. DEP pledged to do additional pollution source track-down and enforcement.

3. I submitted a preliminary report criticizing the study along the above lines to City Council. I provided a copy of this report to EPA and representatives of Senators Lautenberg and Menendez, and Congressman Pascrell.  DEP pledged to reply in writing to my Report to the Mayor and asked that the Mayor share their reply with the Paterson community.

We’ll keep you posted as events develop.

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