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An American Crime – Bulldozing the Gardens

October 30th, 2010 8 comments

Racist Socio -Economic Cleansing In Mt. Holly, NJ

Now Tom said “Mom, wherever there’s a cop beatin’ a guy
Wherever a hungry newborn baby cries
Where there’s a fight ‘gainst the blood and hatred in the air
Look for me Mom I’ll be there
Wherever there’s somebody fightin’ for a place to stand
Or decent job or a helpin’ hand
Wherever somebody’s strugglin’ to be free
Look in their eyes Mom you’ll see me.”
  (“Ghost of Tom Joad” (listen to Springsteen & Pete Seeger)

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Yellow tape surrounds the crime scene - The Gardens, Mt Holly, NJ

[Update: 11/2/10: – Professor David Tulloch of Rutgers at his wonderful blog “Places and Spaces”, provides some history I was unaware of, including a superb video - read and watch it here]

I read Bill Potter’s superb Op-Ed in NJ Spotlight this morning and was appalled by what I learned was going on in Mt. Holly at a place ironically called The Gardens (please read it: Speaking Truth to Power in Mt. Holly – Under the guise of ‘redevelopment,’ Mount Holly has been carrying out what amounts to ‘socio-economic cleansing’ of lower-income areas.

As corrupt  as NJ has become, I still found it hard to believe that such racist egregious abuses could happen here – a NJ local government acting like Russian Oligarchs or Chechen rebels, mimicking the worst of the Maoist Cultural Revolution or the Castro expropriations.

No, something this ugly could not happen in 21st century America – and surely not in “progressive” suburban NJ.

So, I decided to take a little trip down to Mt. Holly to go to the Block Party protest against the mistreatment of the Gardens residents.

I walked around, spoke to several homeowners and renters – and here’s what I saw and found – descriptions under the photo captions. But photo’s really can’t do justice to the scene I observed.

What is wrong with the peope of Mt. Holly that they would allow their local government to do this?

My first impression was one of disbelief.

As I approached from a distance, I saw what initially looked like a typical suburban garden apartment complex, surrounded by wooded areas. But it was badly fragmented. Large open spaces existed between the buildings and some were actively being demolished. I imagined that this is what bombed out post WW II European cities must have looked like. It was far worse than abandoned areas of Camden and the South Bronx I have visited, because these were not abandoned buildings: people were living amidst the chaos. Worse, the chaos was being created by a local government!

garden5

Occupied row homes were surrounded by condemned units – some bearing spray painted messages that eerily reminded of post Katrina New Orleans.

I think "W/S" stands for water/sewer

I think "W/S" stands for water/sewer

Other homes had been isolated by demolition, and stood alone.

does ths home look "blighted" to you?

does ths home look "blighted" to you?

The Gardens neighborhood was built just after WW II to house vets from McGuire AFB and Fort Dix.  Over time, units were sold. A mix of homeowners and renters formed a stable, diverse, and tightly knit neighborhood of predominantly black, hispanic and modest income folks, where peope could pursue their own version of the American dream.

The Gardens neighborhood provided exactly what today’s land use planners are trying to create: a vibrant, pedestrian friendly, appropriately scaled and sufficiently dense “sustainable community”.

People walked to nearby stores, jobs, and churches. Kids walked to nearby schools and neighbors looked out for each other. Backyard gardens provide fresh produce. There remains a diversity of race, age, and income groups. Tolerance and community solidarity prevailed. Stable inter-generational reationships were forged over time. A sense of place was created.

The buildings may have declined over time, but the core human relationships that define a community persisted and longtime residents aged gracefully as their children and grandchildren prospered.

But, Mt.Holly decided in 2000 to “redevelop” the neighborhood.

In 2002, they determined it was “blighted”.

The case may become another national poster child of gross abuse of eminent domain condemnation powers, as the City takes privately owned homes not for any legitimate public purpose, but to benefit other private developers and collect more tax revenues from upscale (white) homeowners.

I first spoke with David Wright. He grew up in the Gardens, walked to nearby schools as a kid, and has served for 23 year in the Navy, including a tour in Iraq. His mom is 93. Here is their home, for which Mt. Holly has offered $39,000

a neighbor cuts the grass for Ms. Wright, age 93

a neighbor cuts the grass for Ms. Wright, age 93

David brought me inside to meet his mom – he was extremely proud of her and his family’s experience living in the Gardens. He spoke of wodnerul ties growing up and all the careeer and other accomplishments of his family and the kids he had grown up with. He strongly resented the lies that the neighbohood was populated by drug dealers and bad kids.

Ms. Wright, 93, homeowner, has lived in Gardens home since 1974 (36 years).

Ms. Wright, 93, homeowner, has lived in Gardens home since 1974 (36 years).

Here is the inside of Ms. Wright’s home – the last supper scene needs no comment:
garden9
I then spoke with Kisha, a mom who rents. She told me of harrassmentby the City and how the demolition of the home next door had put a hole in her roof. Rainfall and animals now enter. I advised her that mold is a problem she should look into because it caused asthma. She already knew that and told me her kids had asthma. Here are Kisha’s kids and their friends. Look at that background: How would you like your kids to have to trick or treat between homes and condemned buildings?:

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Here are some more shots of a neighborhood under seige by their own govenrment and the people that live there.

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shame on Mt. Holly!

shame on Mt. Holly!

Is this a "public use"? This sign was on the perimeter of The Gardens - I don't know if this specific development is part of the "redevelopment plan". But knowing of Pulte's power in NJ, I wouldn' be surprised.

Is this a "public use"? This sign was on the perimeter of The Gardens - I don't know if this specific development is part of the "redevelopment plan". But knowing of Pulte's power in NJ, I wouldn' be surprised.

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Public Hearing on DEP’s Toxic Polluter “Safety Cushion” Rule on Monday

October 29th, 2010 2 comments

Letter To Sponsors Urges Legislative Veto as “Inconsistent with Legislative Intent” 

[Update 2: 11/8/10 Bergen Record editorial (Wolfenotes gets no respect, after doing all the lifting on this): One size doesn’t fit

Update 1: 11/5/10 – Jim O’neill of the Bergen Record wrote a good story today:

“The chief concern about outsourcing toxic cleanups is that protecting the public takes a back seat to the profit motive,” said Bill Wolfe with the New Jersey chapter of Public Employees for Environmental Responsibility. “These rules would Halliburton-ize environmental protection in New Jersey by leaving the contractor in charge of what gets done and when.”

DEP will hold a public hearing on Monday, November 1 on the DEP’s “Safety Cushion” rule – for analysis and links to documents, see: DEP Creates “Safety Cushion” for Toxic Polluters (the hearings are conveniently held a day before and after the election, which assures no press coverage)

You can also read the DEP proposal here: Two public hearings are scheduled:

Monday, November 1, 2010 from 10 a.m. to 12 p.m.
New Jersey Department of Environmental Protection
Public Hearing Room
401 E. State Street
Trenton, NJ 08625

Wednesday, November 3, 2010 from 10 a.m. to 12 p.m.
New Jersey Water Supply Authority
1851 State Route 31
Clinton, NJ 08809

Written comments may be submitted by December 3, 2010 to:

NJ Department of Environmental Protection
Leslie Ledogar, Esq.
ATTN: DEP Docket No. 06-10-09
Office of Legal Affairs
PO Box 402
Trenton, New Jersey 08625

Below is my lettter to the Democratic legislators who sponsored the SRRA:

Dear Senator Smith and Assemblyman McKeon:

I am writing to you as sponsors of the Site Remediation Reform Act, P.L. 2009, c. 60 (hereafter “SRRA”). 

I previously wrote to advise that in the October 4, 2010 NJ Register, the DEP proposed new rules that would eliminate and delay implementation of the mandatory remedial timeframes and related requirements established by interim rules adopted pursuant to the SRRA in December 2009 (for DEP proposal, see:   http://www.nj.gov/dep/rules/notices/100410a.html 

I previously requested that you make legislative inquiry to DEP regarding this proposal, that you conduct oversight hearings, and – should DEP not agree to withdraw the proposal – to use your legislative powers to  invalidate the proposed rules as inconsistent with legislative intent pursuant to the NJ Constitution. As you know, 

Article V, Section IV, paragraph 6 of the Constitution of the State of New Jersey provides that the Legislature may review any rule or regulation of an administrative agency to determine if the rule or regulation is consistent with the intent of the Legislature and, upon a finding that the rule or regulation is not consistent with legislative intent, may transmit such finding to the Governor and the head of the agency

Below, in summary points I-V, please find the relevant statutory provisions and statements of legislative intent. These are clearly violated by the subject DEP rule proposal.

DEP will hold a public hearing on the proposal on November 1 at DEP’s Trenton HQ.

I reiterate my prior requests and look forward to your timely and favorable response.

Sincerely,

 Bill Wolfe, Director, NJ PEER (Public Employees for Environmental Responsibility)

I)  SRRA Remedial timeframe requirements are mandatory, not discretionary – if deadlines are missed, DEP assumption of oversight is mandatory, not discretionary:

http://www.njleg.state.nj.us/2008/Bills/PL09/60_.HTM

A. Section 27 provides, in pertinent part: 

C.58:10C-27  Direct oversight of remediation by department; conditions.

      27. a. The department shall undertake direct oversight of a remediation of a contaminated site under the following conditions:

     (1)   the person responsible for conducting the remediation has a history of noncompliance with the laws concerning remediation, or any rule or regulation adopted pursuant thereto, that includes the issuance of at least two enforcement actions after the date of enactment of P.L.2009, c.60 (C.58:10C-1 et al.) during any five-year period concerning a remediation;

     (2)   the person responsible for conducting the remediation at a contaminated site has failed to meet a mandatory remediation timeframe or an expedited site specific timeframe adopted by the department pursuant to section 28 of P.L.2009, c.60 (C.58:10C-28), including any extension thereof granted by the department, or a schedule established pursuant to an administrative order or court order;

II) SRRA Remedial timeframe extensions are mandated under 28. c under limited conditions. Those conditions do not include providing a “safety cushion” as proposed by DEP rules. Extensions are allowable in 28.d. under limited conditions, however, any extension must be justified on and is limited to a site specific basis and can not be done categorically by rule.

C.58:10C-28  Establishment of mandatory remediation timeframes.

     28. a. The department shall establish mandatory remediation timeframes, and expedited site specific timeframes when necessary, to protect the public health and safety and the environment, for each of the following:

     (1)   a receptor evaluation; 

     (2)   control of ongoing sources of contamination; 

     (3)   establishment of interim remedial measures;

     (4)   addressing immediate environmental concern conditions; 

     (5)   the performance of each phase of the remediation including preliminary assessment, site investigation, remedial investigation and remedial action; 

     (6)   completion of remediation; and 

     (7)   any other activities deemed necessary by the department to effectuate timely remediation.

     b.    In establishing remediation timeframes pursuant to subsection a. of this section, the department shall take the following into account:    

      (1)   the potential risk to the public health, safety, and the environment; 

     (2)   the results of the receptor evaluation; 

     (3)   the ongoing industrial or commercial operations at the site; 

     (4)   whether, for operating industrial or commercial facilities, there are no releases of contamination to the groundwater or surface water from the site; and 

     (5)   the complexity of the contaminated site. 

     c.     The department shall grant an extension to a mandatory remediation timeframe as a result of: 

     (1)   a delay by the department in reviewing or granting a permit, provided that there was a timely filing of a technically and administratively complete permit application; 

     (2)   a delay in the provision of State funding for remediation, provided that there was a timely filing of a technically and administratively complete application for funding; or 

     (3)   a delay by the department for an approval or permit required for long-term operation, maintenance and monitoring of an engineering control at the site provided the request for approval or permit application is technically and administratively complete. 

     d.    The department may grant an extension to a mandatory remediation timeframe on a case-by case basis as a result of: 

     (1)   a delay in obtaining access to property, provided the person responsible for conducting the remediation demonstrates that good faith efforts have been undertaken to gain access, access has not been granted by the property owner, and, after good faith efforts have been exhausted, a complaint was filed with the Superior Court to gain access, in accordance with applicable rules and regulations; 

     (2)   other circumstances beyond the control of the person responsible for conducting the remediation, such as fire, flood, riot, or strike; or 

     (3)   other site-specific circumstances that may warrant an extension as determined by the department.

III ) The SRRA statute requires mandatory enforcement – there is no discretion provided to DEP to waive mandatory requirements as DEP has done via “compliance advisory” (see: http://www.nj.gov/dep/enforcement/advisories/2010-12.pdf 

e. Any person who violates P.L.2009, c.60 (C.58:10C-1 et al.), or any rule, regulation, code of conduct, or order adopted or issued pursuant thereto, or who fails to pay a civil penalty or civil administrative penalty in full or to agree to a schedule of payments therefor, shall be subject, upon order of a court, to a civil penalty not to exceed $10,000 for a first violation and not more than $20,000 for every subsequent violation. Any civil penalty imposed pursuant to this subsection may be collected  with costs in a summary proceeding pursuant to the “Penalty Enforcement Law of 1999,”P.L. 1999, c.274 (C.2A:58-10-et seq).

IV) The SRRA statute provides for mandatory assumption of DEP oversight when specific legislative criteria are not met – there is no discretion provided to DEP to waive or deviate from these criteria via regulation

 

C.58:10C-27 Direct oversight of remediation by department; conditions.27. a. The department shall undertake direct oversight of a remediation of a contaminated site under the following conditions:

 (1) the person responsible for conducting the remediation has a history of noncompliance with the laws concerning remediation, or any rule or regulation adopted pursuant thereto, that includes the issuance of at least two enforcement actions after the date of enactment of P.L.2009, c.60 (C.58:10C-1et al.) during any five-year period concerning a remediation;

(2) the person responsible for conducting the remediation at a contaminated site has failed to meet a mandatory remediation timeframe or an expedited site specific timeframe adopted by the department pursuant to section 28 of P.L.2009, c.60 (C.58:10C-28), including any extension thereof granted by the department, or a schedule established pursuant to an administrative order or court order;

V) The clear legislative intent is to expedite cleanups via SRRA mandatory timeframes

See this 2/26/09 – press release by the sponsor:

SMITH SITE REMEDIATION BILL MOVES FULL STEAM AHEAD

Bill Would Help Accelerate Clean-up of Contaminated Sites & Create New State & Local Revenue

http://www.njsendems.com/release.asp?rid=2692

“First and foremost, it will be a victory for public health if we can address the environmental concerns on these properties more quickly and efficiently.

If the site starts out under an LSRP and then they do not meet mandatory timeframes for the cleanup, DEP would assume direct oversight of the project.

News

Smith Licensed Site Professionals Bill Approved By Full Senate

http://www.politickernj.com/jbutkowski/28239/smith-licensed-site-professionals-bill-approved-full-senate

By Jason Butkowski | March 16th, 2009 – 7:35pm

SMITH LICENSED SITE PROFESSIONALS BILL APPROVED BY FULL SENATE – Measure Would Break Backlog Of Site Remediation Projects By Allowing Professional Review, Approval

TRENTON – A bill sponsored by Senator Bob Smith, Chairman of the Senate Environment Committee, which would establish a licensed site remediation professional program in New Jersey to speed up the clean-up of contaminated sites around the State was approved by the full Senate today by a vote of 34-4, receiving final legislative approval.“Right now, New Jersey has a backlog of over 20,000 known contaminated sites in the State that are not being cleaned up fast enough,” said Senator Smith, D-Middlesex and Somerset. “These sites are a blight on our neighborhoods, a major public health hazard, and an impediment to the environmentally-sound redevelopment of our aging urban and suburban industrial communities. If we’re going to overcome the backlog, ensure the public health and transform these sites into useful, viable property, we need to change how we handle the site remediation approval process in the Garden State.”

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DEP Science Board Agenda Reveals a Formula for Gridlock and Rollback

October 28th, 2010 2 comments

Today’s Atlantic City Press story on DEP’s controversial new Science Advisory Board (SAB) reminds me that I promised to write about the 17 issues assigned to the SAB by DEP Commissioner Martin (see: DEP Science Behind Closed Doors: Secret Meeting Starts New DEP Science Advisory Board Off on the Wrong Foot

According to former DEP Commissioner Mauriello’s Administrative Order that established the SAB, the Board can only work on issues assigned to it by the DEP Commissioner. The SAB may only communicate with the Commissioner via DEP’s Office of Science.

DEP maintains complete control over the issues agenda and communications as means of reducing political intervention and glaring conflicts of interests resulting from the fact that regulated private industries and consultants with DEP regulated clients are members of the SAB.

Complete DEP control was required and designed to avoid attempts by private interests to bring issues before the SAB in order to advance a private agenda (by way of obvious example, Dupont’s representative on the SAB may not ask the SAB to review the science supporting DEP’s risk assessment of PFOA).

Furthermore, the SAB is limited to consideration of “specific science and technical issues” and is strictly prohibited from deliberating on “policy or regulatory matters(see paragraph #4).

The need for “specific issues” to be identified and the bright line prohibition on the SAB considering policy or regulation are vital, becaue the exclusive role of DEP scientists is to establish the basis for DEP regulatory standards and policies. That role is an essential government function, and can not be privatized or outsourced to the SAB.

It is equally obvious that industry and their consultants put economic interests above science and seek to reduce costs associated with complying with DEP standards, while development interests seek to escape DEP environmental constraints.

However, despite restictions in Mauriello’s Order, there remains a serious potential for exactly this kind of abuse of privatizing and politicizing the science.

This potential for abuse is particularly troubling in light of deep cutbacks in DEP scientific staff, the recent fragmentation of DEP’s Office of Science by Commissioner Martin’s Reorganization, and a multi-year trend of reduction in resources allocated toDEP science.

Abuses can result by stealthing policy and regulatory debates into the SAB process under the guise of the “scientific” issue charge to the SAB.

Accordingly, a detailed review of the 17 “issues” assigned to the SAB – in light of the scientific underpinning of current policy and regulatory controversies - is warranted.

Based on our review, we conclude that there has been this kind of abuse.

The issues assigned to the SAB are extremely broadly written, have litttle scientific focus or precision, and allow the SAB to intervene in current policy and regulatory controversies, despite the strict prohibition. This issue set and how it was crafted exposes the real SAB agenda and role, which is twofold:

My sources tell me that Martin spoke very briefly to the SAB, left shortly thereafter, and did not remain for their deliberations. While it was reported by the media that the full SAB would meet again in October, due to lack of any public notice or open meeting requirements, we are unable to verify whether another private meeting occured and if so what was discussed. We have been told that currently, the 5 Standing Committees are now deliberating privately, frequently by telephone conference call. This is all happening in the absence of any transparency or public accountability guidelines, policies, and procedures.

So here we go. Here is the list of 17 issues assigned to the SAB  by Commissioner Martin on September 9.

Each issue (in box quote below) is preceded by our views about whether it is crafted narrowly and precisely to avoid abuse and meet the standards of Mauriello’s Administrative Order. Links are provided to documents that illustrate thse isues, so please hit the links.

Next we will briefly discuss how it is related to current policy and regulatory disputes to illustrate whether the issue is really a stealth atempt to end run the prohibition and intervene in policy and regulatory matters.

1. Nutrient pollution – Both EPA and DEP have been working on this issue for years.  Nutrient standards and controls are a significant policy and regulatory matter, on both a statewide basis and in the Barnegat Bay, where DEP has failed to move forward. Why would the SAB, with no nutrient water quality experts improve on those efforts? The SAB process become an excuse to delay action: “they’re working on it – the science is not ready for regulation”.

Site-specific factors may mitigate or exacerbate biological responses to excessive nutrients. What are the best state-of-the-art approaches for technically sound and implementable nutrient thresholds/criteria in fresh and coastal waters?

2.  Site remediation – Toxic site groundwater cleanup is a highly controversial policy and regulatory matter given NJ’s extensive contamination, significant health risks, and high costs of cleanup. Last year, DEP abandoned proposed regulations that would have mandated “impact to groundwater standards“. This proposal was strongly opposed by industry and would directly impact compliance obligations of Dupont, a SAB member.  Similarly, the LSP privatized program is strongly opposed by environmentalists.

Conduct a peer review of the Site-Specific Impact to Ground Water Soil Remediation Standards (IGWSRS) Framework: Does the framework and associated assumptions and methodology reflect accurate and comprehensive information to guide the Licensed Site Remediation Professional (LSRP) in the evaluation of potential impacts associated with the impact to ground water pathway?

3. Emerging and unregulated chemicals – Health impacts of and controls on currently unregulated chemical contaminants is a high profile policy and regulatory controversy.

What are the contaminants of emerging concern (in surface water, ground water, air, biota, soil, wastewater & sediment), and what technical (e.g., monitoring, research) steps should DEP take to understand and manage them?

4. Cumulative impact risk -Cumulative risks is a longstanding hot environmental justice and land use and water resource policy and regulatory issue.

Review the scientific basis of DEP’s cumulative risk model and provide technical recommendations to improve the model.

5. Ecological standards - Ecological impact methods, wildlife criteria, and mitigation requirements are hot regulatory and policy issues.

Ecological Mitigation Criteria - examine and develop acceptable mitigation to offset impacts to natural resources including ecological function and Threatened & Endangered species. (Develop uniform environmental goal for protection of critical wildlife habitat and T&E species.)

6. Statistical monitoring design – The cost minimization objective could not be more clear on this one – what do costs have to do with science and the accuracy and precision of statistics?

Should the DEP research and test new statistical analysis methods with the potential to substantially decrease monitoring costs in the near future?

7.  “Acute health impact” cleanup standards – Former Commisioner Lisa Jackson promised to adopt “hot spot” toxic site soil excavation, pollutant source removal, and permanent cleanup requirements. This all was strongly opposed by industry. The vapor intrusion exposure pathway remains controversial.

Development of Health-Based Acute Criteria: Can a framework be developed to establish health-based acute criteria that address appropriate acute toxic endpoints, exposure durations and pathways, and a hierarchy of potential data sources?  

8. Monitoring toxic emissions –  Air toxics and perimeter monitoring is a statewide issue of concern and is strongly opposed by the chemical industry:

Assessment of the Perimeter Air Monitoring Framework for use during hazardous waste site remediation: What is the best approach to establish values to protect off-site receptors that are exposed to volatile and semi-volatile emissions from remedial activities?

9.  Biomonitoring – Human biomonitoring! Kiddie Kollege? Hoboken Mercury? Jersey City and Garfield chromium? Pompton Lakes vapor intrusion? Dupont gets a shot at that? Yikes!

What are the needs and scope of a NJ-specific human biomonitoring program? What are the appropriate structures and mechanisms for collecting and interpreting representative biomonitoring data?

10. Nitrate Dilution Model -This is a transparent attack on the Highlands septic density standard, based on the legislaitive “deep aquifer recharge” standard .

Verify nitrate dilution models. What level of nitrates is acceptable in groundwater in order to protect stream water quality and ecological values? Because septic density is based on zoning while the nitrate standard is based on a watershed, can those standards be effectively implemented? Does proximity to a receptor matter? Does it matter from a development standpoint if the land being developed is currently used as agricultural or forested lands? 

11. Water supply constraints – This is a transparent attack on the Highlands water availability methodology and hydrological constraints on development, along with a walk away from DEP “Eco-Flow Goals“.

Review of hydroecological Integrity Assessment Process & Review of the Stream Low Flow Margin Method 

12. Don’t know – The disinfectant and solids seem like bones to water purveyors and the sewage treatment plant operators, but I have no idea what the alternative energy stuff has to do with the first part. Essentially unintelligible!

Demonstration of the efficacy of alternative disinfectants, alone and in concert with innovative high rate solids separating technologies, and alternative energy generation and storage technologies

13.  Water Quality – Sounds like an excuse to stall implementation and weaken TMDL, undermine more stringent NJPDES WQBELs and upgrading treatment technologies, and block water quality standards enforcement.

How should water quality continuous monitoring or modeling results be used to interpret compliance with water quality standards for a particular waterbody? How can continuous monitoring data be effectively evaluated and integrated with legacy data? 

14. Diesel pollution – I am not that familiar with these aspects of the air program and concerned that a focus on mobile diesel diverts from stationary industrial source pollution, but it clearly this lacks precision and involves policy and regulation.

What is the most effective way to determine the improvement in ambient air quality from requiring non-road diesel construction equipment to install retrofit technology and how do we quantify the health benefit to the worker and surrounding population (community) from requiring said retrofits?

15. Hazardous Air Pollutants – The answer to this question is already “no” and DEP scientists have made reform recommendations in a recent DEP Paterson air toxics study

Is the background data and information assembled by the Air Quality Permitting Program sufficient to support regulating additional air toxic compounds as hazardous air pollutants?

16.  Climate Change – “Inevitability” sounds like an excuse to do nothing to control emissions. Why is by far the most important issue buried at #16 on the list?

Which aspects of climate change should be considered at this point to be inevitable, and how should NJ best adapt to these? What additional studies are indicated to assess statewide vulnerabilities to global warming and sea level rise, and how can these studies be linked to adaptive land use management practices, open space protection, and resource utilization?

17. “Green Energy” – I haven’t seen this potocol, but note that it involves “promotion of economic development so am extremely skeptical.

Review the draft protocol for “Evaluating Green Energy Engineering Systems that Use Alternative Fuels to Reduce Environmental Pollutants and Promote Economic Growth“. 

Congrats on getting this far! Your thoughts and comments are encouraged!

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NJ Supreme Court Hears Challenge to Massive Berwind Development in Hopewell Township

October 26th, 2010 No comments

Do Environmental Concerns Involve a “Public Interest” - or Are They Merely Private Disputes Under Land Use Law?

Berwind development, Hopewell NJ

Berwind development, Hopewell NJ - market glut of vacant commercial office space. Deep economic recession. Time to abandon a dinosaur suburban corporate offfice park. Calling it a "Technology Center" doesn't change that reality.

[Update 2: 11/7/10 - listen and watch the Supreme Court hearing (click here) and read real estate industry legal perspective (click here).

Clarification: Under the NJ Municipal Land Use Law (MLUL), there is a  45 day deadline to file a legal challenge after a Planning Board issues an approval. Under NJ Supreme Court rules and prior case law, Court’s can extend this 45 day period if it is in the public interest or in the interests of  justice. 

This case is about a legal challenge that was filed 6 days late and therefore dismissed. However, the lateness was due to incorrect information provided by the Hopewell Planning Board officer itself. The citizen’s group reasonably relied on this incorrect information. 

But this may have not been an honest mistake. The lawyer for Hopewell Citizens alleged that the Hopewell Planning Board may have engaged in an illegal quid pro quo by knowingly engaging in an improper extraction (i.e. making construction of the Mt Rose By-Pass a condition or approval, despite knowing that the Bypass was not feasible and could not be built). That claim, if true, suggests that there may have been an improper motive and bad faith by the Planning Board officer’s provision of incorrect information that misinformed the citizen’s group - i.e. an affirmative misrepresentation.

In addition, my summary below suggests, at best, reckless decision-making that appeared to be driven by an attempt to issue preliminary site plan pproval to avoid the applicability of new DEP stream buffer rules. That is cited in oral arguments as ” a witness was denied testimony” and described as “the elephant in the room”. ]

The NJ Supreme Court today heard oral arguments in the Hopewell Valley Citizens Group’s challenge to a May 2008 preliminary site plan approval.

HV Citizens challenged the Hopewell Township Planning Board approval of the Berwind Property Group’s proposed 800,000 square foot commercial development on 320 acres in a rural and environmentally sensitive area off of Carter Road in Hopewell, NJ.

Back on May 29, 2008, we attempted to testify about that project, particularly to advise the Hopewell Planning Board about the impacts of DEP’s new Category One (C1) 300 foot stream buffers and Flood Hazard Act stream encroachment permit ”riparian corridor” requirements (see this for our May 29, 2008 testimony).

Basically, we argued that the prior May 20, 2008 DEP adoption of new regulations would impact the Berwind project, particularly regarding the effective date and applicability of the new DEP rules with respect to local land use and preliminary site plan approvals granted by the Planning Board.

Specifically, DEP rules grandfather (i.e. exempt) development projects that have received certain local land use approvals and DEP permits (see discussion starting on page 105 - this is DEP’s response to Berwind’s comment #93).

We tried to warn the Planning Board that the Berwind project would be exempted from DEP rules by the Hopewell Planning Board’s preliminary site plan approval, if that approval were issued prior to the effective date of the new DEP rules.

We warned that Berwind also could qualify for grandfathering from DEP stream buffer and other rules because they previously had submitted a stream encroachment permit application.

Additionally we warned that the site disturbance allowed under the Board’s local preliminary site plan approval would create a loophole in the C1 stream buffer rules, because the DEP C1 buffer rules do not apply to previously disturbed lands that are being redeveloped.

Therefore, we strongly urged the Hopewell Planning Board to delay a final decision on the Berwind application until the new DEP rules could be reviewed by professional staff and applied to the project.

The new rules had been signed by the DEP Commissioner on May 20, just 9 days before the Planning Board’s hearing. The new rules were yet even made public and were scheduled to be published in the upcoming June 16, 2008 edition of the NJ Register.

To support our argument, we relied on the written statements of Berwind’s own lawyers, who wrote DEP to oppose the new rules. Berwind’s lawyers claimed that the DEP C1 designation rules would have a “devastating affect” (sic) of their ability to develop the property. My testimony stated:

On August 20, 2007, Pepper Hamilton, LLP, attorneys for the applicant BPG, submitted comments on the DEP May 21, 2007 proposed Category One amendments (see Exhibit 2). BPG counsel stated that the impact of the proposed regulation to designate portions of the Stony Brook as a C1 water:

“If adopted, the [C1] rule would have a devastating affect on BPG’s ability to redevelop its property because of the imposition of a 300 foot special water resource protection area (and riparian zone if the proposed amendments to the Flood Hazard Control Act rules are enacted) (collectively, “buffers”) adjacent to the Stony Brook and its tributaries.” Such buffers will prevent BPG from implementing the 1999 [Hopewell] Township approved plan, possibly including BPG’s ability to discharge from its wastewater treatment plant.

However, shockingly, the Planning Board attorney opposed the introduction or consideration of my testimony. The Board later ruled that my testimony was not admissable.

The Board proceeded - recklessly - to expedite review and approve the project.

The Board did so in complete and willing ignorance, without knowing – or even considering – whether and how the new DEP rules would impact the project or whether the Berwind lawyers were correct in claiming that the new DEP rules would have a “devastating affect” on their ability to develop the site (by strictly limiting disturbance in the 300 foot wide buffers on 2 streams that flow through the site, and making the NJPDES wastewater discharge permit vulnerable. Under DEP rules, C1 streams are protected by more stringent water quality standards, including an antidegradation policy that requires that discharges have “no measurable impact on existing water quality” and more rigorous”existing use” protections that were first enforced by DEP in revoking a NJPDES permit issued at the Windy Acres development in Clinton Township).

But let’s get back to the HV Citizens lawsuit and the legal issues at play.

The HV Citizens lawsuit was dismissed by the trial and appeals courts on a procedural technicality: the citizen group’s legal complaint was filed 6 days AFTER the 45 day deadline established under the Municipal land Use Law (MLUL).

But the reason why the complaint was filed 6 days late was due to an error by the Hopewell Township planning board clerk, who failed to provide the correct information regarding the start of the 45 day clock. The Citizen’s group relied in good faith on that incorrect information and as a result was 6 days late in filing their lawsuit.

Not surprisingly, Berwind’s lawyer urged the Court to uphold the Appellate Court’s decision and strictly enforce the “bright line” 45 day deadline. They argued that predictability and finality are required, and implied that the Court’s extension would cause chaos across the state as developers in 566 towns were forced to rely on he said/she said phone calls to establish legal deadlines. More than one justice found this argument unpersuasive.

The attorney for the Hopewell Planning Board, who took the same position as Berwind, surprisingly went further to argue that citizens should not rely on the advice of government officials! That argument was mocked by one justice.    

But far broader interests are involved in this case.

The MLUL and NJ Supreme Court rules specifically allow extensions to be granted to the 45 day limit, based upon promoting the public interest, balancing the equities, and avoiding manifest injustice.

During oral argument, justices noted that the Supreme Court had modified its rules to allow extensions of the 45 day statutory MLUL deadline expressly to protect broader public interests and promote justice. One Justice noted that this rule cahnge was made in response to issues raised in a prior case that came before the court. This Justice then noted that the Legislature had not acted to reverse or restrict the Court’s rules that allowed extensions of the Legislature’s statutory 45 day period and cnsdieration of broader factors than those explicity in the MLUL. From a legal perspective, this means that the legislature effectively supports the courts more expansive and flexible view of reasons to extend the 45 day deadline. 

So the argument boiled down to whether an innocent mistake by plaintiff HV Citizens, based on local government error and resulting in only 6 days, should result in the entire case being thrown out of court.

Was that a “manifest injustice”?

The trial and appeals court decisions basically found that sustained public opposition by hundreds of Hopewell Valley residents, along with significant substantive open space, water resource, wildlife habitat, traffic and related land use impact issues were merely private disputes that did NOT involve the broader public interest  (for the Appellate Division January 2009 decision upholding the trail court see this). The Appellate Division found:

We affirm substantially for the reasons expressed by Judge Feinberg in her January 23, 2009 oral opinion. We add the following remarks.

We acknowledge that there may be circumstances that warrant an enlargement of time other than the traditional categories of important and novel constitutional questions, informal or ex parte determinations of legal questions by administrative officials, and important public rather than private interests. Cohen, supra, 368 N.J. Super. at 345. Those circumstances may include affirmative attempts to mislead or confuse objectors about the date of publication, id. at 347, or challenges to the validity of an ordinance not adopted in conformity with applicable statutory requirements, Reilly v. Brice, 109 N.J. 555, 560-61 (1988). Here, however, there is no suggestion that Berwind sought to mislead or confuse the objectors about the date of publication or that the zoning ordinance is infirm. Rather, Berwind simply proceeded as authorized in the rules and regulations adopted by defendant Planning Board.

We are also not persuaded that the issues presented by plaintiff concern issues of great public importance rather than the normal concerns expressed by objectors to local development. Here, the Planning Board granted preliminary site plan approval for a permitted use. No variances were required and none were granted. In addition, the property is not undeveloped ground. Rather, three existing buildings totaling more than 300,000 square feet of space, including a dormitory and a helistop, are on the site. Conditions imposed by the Planning Board require demolition of the dormitory and elimination of the helistop.

My prediction is that the Supreme Court will reverse the Appellate Division and find in favor of the Plaintiff HV Citizens, particulalry on the “public interests” at play, as distinguised from garden variety private interests.

Thankfully, more than one Justice, citing planning board hearings attended by over 100 people and substantive stream buffer and water resource issues, had big problems with Berwind’s argument that HV Citizens had only 7 members and thus the issues in dispute were private or of “limited public interst”. 

I suspect that they will balance the equities in favor of plaintiffs and find that the interests of justice require that outcome.  

Ironically, I won a very similar procedural argument before the US EPA Environmental Appeals Board in contesting the proposed Mercer County incinerator’s air pollution control permit. In that case, I also relied in good faith on the wrong information provided by a government clerk. The clerk’s error resulted in my filing missing a deadline by 3 days. In holding in my favor, the US EPA Appeals Board found:

As previously stated, MCIA has asserted that the appeal was not filed in a timely manner. Although the petition for review was not received by the Board within 30 days of the date the permit was issued as required by 40 C.F.R. § 124.19(a), we nevertheless consider it to have been timely filed. Although the Board ordinarily requires strict compliance with filing deadlines, we make an exception in the present case because Bill Wolfe, then the Policy Research Director for the New Jersey Environmental Federation, one of the petitioners in this matter, has submitted an affidavit stating he was given and relied upon incorrect information by the Clerk of the Board. In particular, although the petition for review was due on September 30, 1996, Wolfe states under oath that during a telephone conversation with the Clerk of the Board, he was told that an overnight package sent on September 30, 1996, would constitute timely filing. The Clerk of the Board has confirmed the substance of this conversation. The petition was not received by the Board until October 3, 1996. Although Wolfe did not disclose to the Clerk of the Board the method by which the final permit decision was served, the Clerk of the Board apparently believed that the decision had been served on petitioners by mail, in which case 3 days are added to the prescribed time period for filing a petition for review. 40 C.F.R. § 124.20(d). However, because the final permit was served on petitioners on August 30, 1996, by hand delivery, the petitioners were not entitled to this additional time. Under these very narrow and unusual circumstances, we consider the petition to have been timely filed. See American Farm Lines v. Black Ball Freight Services, 397 U.S. 532, 539 (1970) (Agency may relax procedural rules if the ends of justice so require); In re Genessee Power Station, 4 E.A.D. 832, 837 n.6 (EAB 1993) (excusing Limited Partnership failure to comply with filing requirements of 40 C.F.R. § 124.19); In re BASF Corp, 2 E.A.D. 925, 926 n.3 (Adm’r, 1989) (where a petitioner relies on erroneous filing information from the Region, a petition for review will not normally be rejected as untimely).

[Update 1: 10/27/10 – I realize that this post is aleady way too long, but I left important info out and need to finish the story.

As I said, on May 29, 2008, the DEP Category One rule adoption documents were not yet published, so I had to file an OPRA and do a file review at DEP HQ and the Office of Administrtive Law (OAL) to review and get a hold of the documents.  

Subsequent to my May 29 testimony, I was able to review the fine print more closely, and realized that DEP eliminated several proposed C1 stream upgrades, including some in Hopewell that could imapct BMS and the Berwind project. On June 5, I issued this press release:

“GRANDFATHER” STAMPEDE IN DELAYED NEW JERSEY STREAM RULES — Statewide Clean Water Protections Honeycombed with Special Interest Exceptions

Trenton — Even as it formally unveils its controversial “Category One” waters initiative, the New Jersey Department of Environmental Protection has created a major grandfathering loophole, allowing many major development projects to circumvent the new protections, according to an analysis by Public Employees for Environmental Responsibility (PEER). As a result, construction will be allowed to pierce protective buffers around the state’s most ecological valuable rivers, lakes and streams.

“Buried in these rules are enough special interest gifts to keep the spirit of Christmas alive in Trenton for many years to come,” stated New Jersey PEER Director Bill Wolfe, a former DEP official who once headed the Category One (C1) program designed to shield water-bodies that either support critical wildlife or feed into a major drinking-water source from development-induced pollution. “Favors for developers with politically connected projects can only be found by playing hide-and-go-seek through 300 pages of regulatory underbrush.” [...]

This grandfather loophole has already exempted one big project, an 800,000 square-foot corporate office park expansion known as Berwind, located on Carter Road in Hopewell (previously known as Lucent Technologies). According to August 20, 2007 comments submitted by a lawyer on behalf of Berwind Property Group (BPG) in Hopewell campus, the project would be precluded by a C1 designation: “If adopted, the [C1] rule would have a devastating affect on BPG’s ability to redevelop its property…”

On May 29, 2008, the Hopewell Township Planning Board approved the project while refusing to acknowledge that the new C1 rules, adopted just days earlier, would preclude the project.

I’ll close on a personal note: Just a few years ago (2002), I don’t think there were 10 people in the entire state of NJ who had a clue what a “Category One” water was. Yesterday, I heard a NJ Supreme Court Justice initiate a question and knowledgeably talk about Category One waters!! I’d like to think I had a big role in that.

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Accident at Bayway Refinery – “Controlled Burns” Release Unknown Toxic Air Pollution

October 25th, 2010 No comments
ConocoPhillips Bayway refinery (Linden, NJ)

ConocoPhillips Bayway refinery (Linden, NJ)

According to today’s Star Ledger AP report,  “flames are shooting out of the towers” of the ConocoPhillips refinery in Linden, NJ.

According to the Company, a power outage occured during routine maintenance. The AP story says no workers were  injured, but does not even mention the environmental releases of toxic chemicals that occured during the accident.

We wrote about some of the risks from that plant in this post - watch this video of ABC TV Eyewitness News Investigative Report on repeat violations at Bayway.

There had to be toxic air emissions as a result of this incident.

Obviously, a detailed accident investigation report is required. However, even before detailed investigaion is conducted, reporters need to ask US EPA and NJ DEP about facility monitoring data and expected enforcement response and penalties for air pollution violations.

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