WolfeNotes.com

[Update: further evidence of the BS spin: The Asbury Park Press reports that these key remaining two bills in the Barnegat Bay package passed the Senate today, but not the Assembly yet. Where is Christie on the tough choices? see: Senate passes two Barnegat Bay bills, despite unpopularity with Ocean County officials

One piece of legislation, S-1815, would permit creation at the county level of a new storm water utility, similar to sewer or water supply authorities, that would have the power to issue bonds and impose fees on local property owners to pay for the repair and maintenance of storm sewer systems. […]

A second bill in the Senate today, S-1856, would give the Ocean County Planning Board authority to charge new fees on developers to pay for dealing with storm water runoff pollution. That passed the Senate by a similar margin of 22 to 17, amid concerns that it is too burdensome on a building industry that’s already been flattened by the recession. [links to bills mine. End Update]

I’ve written about this issue extensively, but want to make a few points on yesterday’s Barnegat Bay bill signing by Governor Christie.

The alleged water quality benefits of the 3 bills the governor signed are being greatly exagerated. The Governor did not sign and DEP is still sandbagging the toughest and most effective bill in the package, the one that would mandate a TMDL. And the Governor’s plan ignores major problems, like land use and CAFRA reforms.

As Kirk Moore reported:

The administration has promised a less specific “narrative standard” for nutrients in all coastal waters. Environmental advocates say that won’t be enough to measure whether actual progress is being made.

“If they take out the (hard) TMDL, it’s a weak bill,” said Bill Wolfe of Public Employees for Environmental Responsibility, a former DEP employee who’s worked on water issues.

If the U.S. Environmental Protection Agency “could do this with Chesapeake Bay, which is a much bigger and more complex system . . . then clearly EPA could put some money into this,” Wolfe said in a telephone interview after the bill-signing ceremony. [Note – in addition to EPA funding, I was comparing the Chesapeake timeframe with the 3 year deadline in the bill,a period that DEP finds “not feasible”]:

The DEP should commit itself to that goal this spring when the EPA formally reviews the state of New Jersey waters under the Clean Water Act, Wolfe said.

The state has an obligation under that federal law and “we need to move forward on that,” said Tim Dillingham of the American Littoral Society.

Now to my quick take on the bills signed:

I) Fertilizer bill

The bill exempts major nitrogen pollution sources, including farms, golf courses, septic systems, horse farms, historic chicken farm residuals, and atmospheric deposition.

Senator Beck (R-Monmouth), a prime sponsor of the bill, told me that more than 70% of fertilizers produced by Scott’s already meet the standards of the bill.

As I noted previously, it is mathematically impossible to get to a nitrogen pollution load reduction (i.e. in pounds) via a reduction in nitrogen concentration of the fertilizer without additional limits on application. 

A simple hypothetical illustrates this: [Note: see Josh’s comment and response below – these arbitrary number are provided solely to illustrate the relationship between concentration and loadings, not to specify actual reality].

1) Let’s say your neighbor fertilizes his lawn twice a year, applying 2 fifty pound bags of fertilizer each time, which contain 20 pounds of nitrogen per bag (N = 40%, by concentration).

2) Next year, he goes to Home Depot, where the salesman tells him that the new environmentally sound “Green” fertilizer has a 50% reduction in N concentration (to N = 20%).

Now what do you think that guy is going to do? Buy the same 2 fifty pound bags? Gimme a break. Anyone who has drank 3.2% beer knows better.

He’s going to buy 3 fifty pound bags, to offset the reduction and just to be sure that his lawn will be as green as last year.

After the spring application, he will be convinced by mid May that his lawn is looking less green than last year. Being a macho man, he will blame it on that damn weak stuff forced down his throat by the wacky enviro’s.

So he’s going back to Home Depot for more.

Result: he will apply 3 fifty pound bags 3 times a year, instead of twice.

Do the math – the net effect is NEGATIVE – MORE NITROGEN! The law makes the situation WORSE:

Before the law:

(2 applications per year) X (2 bags/application) X (50 lbs/bag) X (.40 Nitrogen) = 80 lbs nitrogen

After the law:

(3 applications per year) X (3 bags/application) X (50 lbs/bag) X (.20 Nitrogen) = 90 lbs nitrogen

Worse, keep in mind that there will be hundreds (or thousands) of NEW homes built in the watershed, most of which will be using septic systems and applying lawn fertilizer – at 90 lbs per home, that’s a major nitrogen load increase.

Then consider that the Bay requires a TOTAL NITROGEN LOAD REDUCTION.

You simpy can’t get there from here.

II) Soil Compaction bill

The soil compaction bill only applies to limited set of “post construction” activities that are regulated under the current ineffective Soil Conservation Service program.

Due to lobbying by the Builders Association, the bill exempted the following activities, all of which are the primary causes of soil compaction:

1) pre-construction activities, where builders destroy existing vegetation, scrape the soil from the site, and stockpile the soil. This destroys the natural soil structure, biological functions, and its ability to store water and otherwise function as soil;

2) After stripping soil from the site, builders then bring in huge heavy equipment which compacts the little natural soil that’s left;

3) after building is done, the soil is then redistributed and again compacted by heavy construction equipment.

These 3 activities are what cause soil compaction from construction – and ALL OF THEM ARE EXEMPTED.

The bill is riddled with loopholes and will not reduce current soil erosion and sedimentation problems.

III) Stormwater bill

There is no dedicated funding source to deal with significantly costly stormwater infrastructure and management issues.

The alleged $100 million local loan program is a fiction. Local stormwater management costs have long been eligible to receive loans from the NJ Environmental Infrastructure Trust. The Governor has not changed anything in the current NJEIT program with respect to eligibility or funding.

Towns will not voluntarily take on local taxpayer backed interest bearing loans – so the alleged $100 million is highly misleading.

The $10 million is a drop in the bucket and may merely result from a reallocation of federal EPA 319 grants – or current watershed management funds (whose revenue source is the constitutionally dedicated Corporate Business Tax).

No new state funding source for this $10 million has been identified. So, it may not be new money but merely a shift away from current uses of existing funds – thus, some other program may suffer while the Bay benefits.

This is a zero sum game, not environmental leadership.

IV) TMDL (on the Gov.’s desk, conditional veto expected to gut the bill)

I previously summarized  the key benefits of the TMDL program, including:

• a pollution budget, which sets an enforceable total cap on pollution, mandatory numeric pollution reductions, and allows monitoring and measurement of progress towards water quality goals, thereby promoting accountability
• regulation of ALL sources of pollution, including agriculture, golf courses, horse farms, new development, and atmospheric deposition;
• deadlines and schedules for discrete tasks, which promote efficiency, accountability, and public participation and oversight
• a “margin of safety” to account for scientific uncertainty
• a “reserve margin” to accout for future growth, limit additional new pollutant loads, and provide a framework for pollution off-sets and mitigation
• TMDL would triggger 300 foot buffers as water quality BMPs on all tributaries
• TMDL is a tool to enforce the current CAFRA statute, which says DEP may deny a CAFRA permit due to”impairment”. This leverage could reduce development intensity, reduce impervious surfaces, increase preservation of natural vegetation, and strengthen current DEP stormwater maangement at future CAFRA developments.
• provide federal EPA oversight and federal resources
• address all pollution sources, point source and non point source, regardless of ownership. The TMDL approach provides a framework to pursue the most cost effective retrofits and pollution source reductions in a phased manner over time
• TMDL allows for integration with ongoing scientific work, DEP permitting, and the overall BBay NEP management plan – no need to reinvent the wheel
• TMDL provides regulatory teeth.

Governor Christie did not sign the TMDL bill, DEP opposed the TMDL bill in the legislature, and DEP Commissioner Martin said the following in Kirk Moore’s story:

That bill, with its call for hard numerical limits within three years, is “too premature,” Martin said, because without new data and nutrient standards “it’s going to take a couple of years” for the DEP to decide if a Barnegat Bay TMDL is feasible and, if so, what the numbers should be.

And so it goes –

ps: and while we’re on the topic of bullshit, don’t forget:

During his remarks, Christie recognized Pringle as “a strong, strong voice for the environment, and a reasonable voice” who helped advocacy groups and the administration agree on action to save the bay.

DEP Puts Lipstick on the Industry Dominated Toxic Site Cleanup “Reform” Pig

[Update: 3/4/11 –   I   understand that some have problems with the rape metaphor I used in the below column, yet those with those problems apparently don’t have the courage to call me to discuss them. As you will note, I provided an up front reader warning about “sexual and knowingly inappropriate sexist metaphors and adult content”, so I anticipated those concerns. I did not use that word lightly, and I stand by the rape metaphor - In my view, the public interest and the environment are being raped (as in “plunder, pillage, despoil“). The phrase “rape of the environment” is not novel. But I apologize to readers hurt by that phrase and to the victims of actual rape. The usage in no way belittles those crimes – and I know men who have been raped. Other concerns apparently relate to the  personal ad hominem nature of the piece.  I generally oppose ad hominem attacks and prefer to write wonky policy stuff, but in this particular case, the ad hominem style was a valid form of conveying the meaning of what was going on. Again, I used the style knowingly, as it more precisely captures the essence than mere quotations of the testimony could have (“she praiseth too much, methinks”), and it more aptly expresess the outrage I heard from residents of Pompton Lakes. Last, there is the issue of personal accountability. In my view, policymakers are public figures that are not immune from personal criticism – IF that criticism is used to illustrate or make a larger policy point, which I did here. Again, I apologize to those offended by the personal nature of the piece.] 

Reader WARNING: sexual and knowingly inappropriate sexist metaphors and adult content may not be suitable for children.

I’ll first lay out (pun intended) my mixed metaphor headline.

“Faking it” is an allusion to Meg Ryan’s hilarious performance in “When Harry Met Sally” (watch it!).

DEP Deputy Commissioner Kropp’s December 9 over the top performance in testimony to the Senate Environment Committee on implementation of the Site Remediation Reform Act (AKA privatized cleanup under Licensed Site Professionals) would give Meg a run for the money in the drama category (third place goes to Blanche Dubois in her “old fashioned ideas” scene).

The last time my jaw dropped watching that giddy style was in Pompton Lakes last year. I can still recall the remarkable moment when a woman rose up – I think she was a local teacher – to demand that Kropp wipe that frozen fake smile off her face because it was insulting the People of Pompton Lakes! (we wrote about that episode here:

In closing, we note that several residents spoke that they were appalled by the behavior of the mayor and DEP Assistant Commissioner Kropp.

Residents accused Kropp of being disrespectful, arrogant, and condescending. Maybe the meds weren’t working, but I agree that Kropp’s continuous smug grin and haughty tone of voice were completely unprofessional and inappropriate. Several times, she flat out blamed residents for delays in installation of vapor intrusion systems in homes. She also refused to meet with certain groups or individuals, implying that they were effectively outside agitators and did not represent “the community”. I found these remarks divisive and outrageous.

So, getting back to the topic at hand: I’d ask Meg Ryan: what kind of woman fakes it for a rapist?

Because the public interest, public health, and the environment surely are being raped by the current “reform” process (my testimony below explains some of the reasons why).

Moving on, the “lipstick on the pig” metaphor refers to this “What’s New” material posted on the DEP website. Important to note that it was posted on December 15, just 6 days after the December 9 legislative oversight hearing – so it’s pure CYA: 

Draft Rules Documents

Stakeholder Process for Rules To Fully Implement the LSRP Program

The Department has been developing a proposal to amend the Administrative Requirements for the Remediation of Contaminated Sites rule (ARRCS), Industrial Site Recovery Act rule (ISRA) and the Underground Storage Tank rule (UST) to bring them into conformity with the Site Remediation Reform Act (SRRA) deadline for full implementation of the License Site Remediation Professional (LSRP) remediation program.  The statutory deadline for full implementation is May 2012. The Department anticipates publishing the proposal in the May 2, 2011 New Jersey Register for adoption in May, 2012.

This notice was posted to create a false appearance of openess, transparency, and balance.

It obviously was done in response to my criticism in December 9, 2010 testimony to the Senate Environment Commitee: (listen at time 1:26:20)

There were 2 fundamental premises of the LSP bill that are being violated in how the DEP is conducting themselves.

Number one, there was an expectation that the LSP’s would comply with the then existing technical standards – that we weren’t going to change the technical standards.

As we all know, a standard is more than a number. A standard includes how it is measured, monitored, and enforced. These things all come together.

But, according to DEP’s own testimony today, there are 5 (“stakeholder”) committees working on all aspects of the technical requirements for site remediation. Those are the core technical requirements dealing with everything.

For example, soil delineation requirements. A soil standard is meaningless if you are not measuring it in the field.

So my point is that there are technical workgroups meeting, which are 95% – if not 100% - composed of regulated members (LSP’s, industry).

These workgroups are hollowing out the technical requirements. […]

If you look at the composition of the stakeholder groups that have been established by the Department, there was a representation made here in testimony by Deputy Commissioner Kropp, that they somehow considered environmental viewpoints. I just beg to differ with that and I’ll give you the membership of those committees if you’d like.

They are not representative of the public interest and they surely are not representative of environmental interests.

They are completely industry dominated, including LSP’s who are writing their own ticket – it’s like a blank check to technical consultants to write their own requirements.

This is what’s going on right now – this is the kind of game we’re in – it is not a pretty picture.

When communities of concern find out what’s going on, that they’ve been out of the loop – and this has been redounding in Pomton Lakes on a daily basis as there is another disclosure about what the community didn’t know  about what the Department and Dupont were doing behind the scenes – when communities learn that, people get angry.   

They see that government is not working in their behalf , is not transparent, and is not keeping them and their town councils, mayors, and local officials in the loop.

The LSP program has only created less transparency. So there needs to be more effort on the part of the Department to make those things work.

And I don’t see any commitment to that at all.

[Note: DEP testified that all “prescriptive” requirements were being removed and that there will be “no must’s’, shall’s, or have to’s”. So in addition to watering down the technical requirements, they are being made unenforceable. This policy is being implemented not only in Guidance but in regulations. The SRRA law itself authorized LSP’s to rely on their own “best professional judgement”, regardless of whether it conflicts with regulations or Guidance. Privatization gone wild. For those interested, here is DEP’s bullshit briefing] 

Does that Lipstick website post provide evidence of a commitment?

Those industry dominated stakeholder groups have been meeting for months – so the damage is almost completely done.

A 9th inning website post does not repair the damage  – we see it as a cosmetic CYA move to provide insulation from the above criticism. Nothing substantive has changed.

The honorable Jorge Berkowitz and his colleagues at Langan Engineering are still in charge and in control of the substance.

Tea Party Drunk House Republicans Take a Page out of Christie’s Policy Book

Today Propublica reports that incoming House Republicans are working with corporations and polluters to rollback regulatory protections.

Taking a page out of Governor Christie’s playbook, powerful new House Oversight Committee Chair Darrell Issa wrote a letter to 150 corporations seeking regulatory rollback recommendations. As in NJ, the focus is on environmental regulations, and global warming in particular.

Readers here will recall that the Christie Transition Team also sought corporate rollback recommendations, with the help of the NJ Chamber of Commerce, and the Christie Red Tape Review process did the same thing.

Congressman Issa is doing the same thing that Christie did. We wrote about that back on Nov. 14, 2009:

“According to NJBIZ,

Assembly Republican Executive Director Rick Wright said the transition team is interested in hearing from businesses about how regulations affect them. He encouraged the audience at a New Jersey Chamber of Commerce breakfast Friday morning to show the transition team “the horrors that they need to hear about” regarding regulations’ effect on businesses.

The Republican House attack is based on the same sham allegations of alleged huge negative economic impacts and destruction of jobs used here in NJ by Christie.

The republican/corporate strategy is to manufacture uncertainty and reject science.

Propublica reports:

Rep. Darrell Issa, has sent letters to more than 150 businesses, trade groups and think tanks calling for their input on which regulations are burdening them and hurting jobs [2], Politico reports. From the text of the letter [3], which NBC has posted:

The Committee on Oversight and Government Reform is examining existing and proposed regulations that negatively impact the economy and jobs.

In fiscal year 2010, federal agencies promulgated 43 major new regulations. These regulations ranged from new limits on effluent discharges to new rules for Nationally Recognized Statistical Rating Organizations. The new limits on effluent discharges from construction sites will cost $810.8 million annually resulting in the closure of 147 construction firms and the loss of 7,257 jobs. …

The National Association of Manufacturers and the National Petrochemicals and Refiners Association, two groups that received letters, told Politico that in their responses to Issa they pointed to new EPA greenhouse gas rules as an example of burdensome regulation.

Yet the facts are just the opposite: regulations provide net economic benefits and create jobs:

According to the White House Office of Management and Budget (OMB) thirteenth annual Report to Congress on the benefits and costs of federal regulations:

The estimated annual benefits of major Federal regulations reviewed by OMB from October 1, 1999, to September 30, 2009, for which agencies estimated and monetized both benefits and costs, are in the aggregate between $128 billion and $616 billion, while the estimated annual costs are in the aggregate between $43 billion and $55 billion.

Just like House Republicans, Christie Executive Order #2 explicitly calls for “regulatory relief”.

The Governor has dodged accountability thus far for that policy – from press (who have never even mentioned the phrase “regulatory relief“) and most Democrats in the Democratic controlled Legislature.

Will House Republicans get away with this in Washington too?

I plan on writing a preview of 2011 key issues, but until that gets written, I will post NJ Spotlight’s work.

NJ Spotlight – motto: “where issues matter” – was one of  the few positive developments in 2010. They are literally the only game in town when it comes to Trenton issues coverage. Hit the site and become a member, it’s free!

Mike Catania does a nice job of recapping the year’s lowlights in his opinion piece “Environment 2010 — The Good, the Bad and the Ugly“

Tom Johnson outlines key upcoming issues in “In New Year, Christie Administration Faces Critical Decisions on Energy and Environment”

Happy New Year!