Archive for December, 2011

The Year in Rebuke

December 26th, 2011 No comments

We’re going to tackle the year end review in 3 posts.

Part 1 (today) and Part 2 (tomorrow) will – literally – be a year in review as I post my favorite photo of the month. Feel free to browse the archives and select your own.

Part 3 (Wednesday) will deal with issues – the basis will be all the prognostications I made in this January 18, 2010 post:

Shoes Drop in 2011, As DEP Implements Christie “Regulatory Relief” Policy

So I urge readers to review that post and assess my judgement for themselves, before I attempt to cover my ass and spin you! (Hit the LINKS above the pictures for the original)

January – I couldn’t select just one, so, in order, will go with:

“A Revolution in Values”

Riverside Church (NYC)

Riverside Church (NYC)

A Visit to FDR’s Estate on the Hudson

view of the Hudson, looking northwest into the Catskills (from Vanderbuilt Estate)

view of the Hudson, looking northwest into the Catskills (from Vanderbuilt Estate)

The Moths of Manchester – Living in the Suburbs


This Garden Universe


February – again, I couldn’t pick just one:

Thousands Rally in Trenton in Solidarity With Wisconsin Workers

Statehouse, Trenton NJ

Statehouse, Trenton NJ

Fracking Debate – “Our Water, Our Future”


Steps of Trenton War Memorial

March – hey, this is tricky – gotta go with 3 this time!:

A is for Atom

Salem nuke plant

Salem nuke plant

Christie DEP limits Public Access to Urban Rivers and Shore


Raritan River striper

NJ Press Corps Miss The Fracking Elephant in the Room


Delaware River (looking north towards watergap)

April – just one this time!

Christie Plan to Abolish D&R Canal Commission Draws Fire


Women jog along D&R Canal in Kingwood

May – gotta go with 3 again!

DEP Plans to Expand Beach Access – for Builders

Jersey shore - Monmouth County

Jersey shore – Monmouth County

Senate Hears Bill that Would Weaken Protections for Exceptional Quality Waters

Alexauken Creek - Category 1 stream

Alexauken Creek – Category 1 stream

High Point Views


Wanaque Reservoir, Manhattan skyline

June – I can’t help myself to just one:

Good Year for Frogs?

water's getting hot!

water’s getting hot!

Thousands Protest Christie- Sweeney Deal To Strip Workers Rights


The Beaches, Bays, and Rivers Are Yours

homes built cheek to jowl along Long Beach Island block public access to beach

homes built cheek to jowl along Long Beach Island block public access to beach

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Some Snow Science

December 23rd, 2011 No comments
The Day After The October Snow (10/30/11)

The Day After The October Snow (10/30/11)

[Update # 7 – Another snow job by the Star Ledger today:

atmospheric patterns, including the Pacific phenomenon known as La Nina, have conspired to make this an unusually icy winter in Alaska and have kept it abnormally warm in parts of the lower 48 states accustomed to more snow.


David Robinson, NJ State Climatologist ( the one hand ...) (8/25/10)

David Robinson, NJ State Climatologist (…on one hand …) (8/25/10)

So where is State Climatologist David Robinson, who claims to be a world class snow expert?

Update # 6 – 1/4/12 – Forget update #5 – just 6 days later, Star Ledger, late to the game, reports that it looks like NJ State Climatologist David Robinson is firmly back in the equivocation camp (boldface mine):

The combination of warmer and wetter weather may not be coincidence, either.

Earlier this year, Nobel Prize-winning Intergovernmental Panel on Climate Change released a report contending that global warming is causing more extreme weather events.

While he said the topic still needs far more study, temperature and weather extremes in the United States in recent years are beginning to make Robinson a believer.

Update #5 – 12/30/11 – Well, what do you know! No La Nina, and no “North Atlantic oscillation” – Jim O’Neil’s Bergen Record story gets Dave Robinson on the record linking extreme weather and global warming (no caveats)!

Update #4 – 12/27/11 – Editors at the Star Ledger must be scientifically challenged or oblivious – now it’s just “wild and wacky weather!”

Update #3  12/26/11- The New York Times just had a climate change epiphany!

They seem to have discovered that it’s all about politics!:

At the end of one of the most bizarre weather years in American history, climate research stands at a crossroads.

Scientists say they could, in theory, do a much better job of answering the question “Did global warming have anything to do with it?” after extreme weather events like the drought in Texas and the floods in New England.

But for many reasons, efforts to put out prompt reports on the causes of extreme weather are essentially languishing. Chief among the difficulties that scientists face: the political environment for new climate-science initiatives has turned hostile, and with the federal budget crisis, money is tight.

And so, as the weather becomes more erratic by the year, the public is left to wonder what is going on.

Right! Imaging that: the public is wondering what is going on? Maybe if the NY Times told the story, even if 25 years too late!

The Republican party is paying no price for ideological extremism, hostage taking, and denial of basic science:

This year, when the National Oceanic and Atmospheric Administration tried to push through a reorganization that would have provided better climate forecasts to businesses, citizens and local governments, Republicans in the House of Representatives blocked it. The idea had originated in the Bush administration, was strongly endorsed by an outside review panel and would have cost no extra money. But the House Republicans, many of whom reject the overwhelming scientific consensus about the causes of global warming, labeled the plan an attempt by the Obama administration to start a “propaganda” arm on climate.

Update #2 – 12/25/11: Going way beyond denial, there is secrecy and national security. So check this out: in 2009, the CIA established  a Center on Climate Change and National Security. The role of the Center:

Its charter is not the science of climate change, but the national security impact of phenomena such as desertification, rising sea levels, population shifts, and heightened competition for natural resources. The Center will provide support to American policymakers as they negotiate, implement, and verify international agreements on environmental issues.-

Despite the public policy role, the CIA just denied a FOIA request on the basis that ALL the records were secret – see:  At CIA, Climate Change is a Secret]

[Update #1: 12/24/11 The denial on global warming is almost comical at this point.

Yesterday it was La Nina – but, hey snow lovers, don’t you worry your pretty little head over that global warming stuff. In today’s news story we see snow coming soon via a weakening of the “north atlantic oscillation”!:

The reason for the potential snowy shift resides in Greenland.

A semi-permanent low-pressure system near Greenland, part of a weather phenomenon known as Northern Atlantic Oscillation, could weaken over the next several days. This is commonly referred to as the oscillation “going negative.”  – end update]

Just read the Star Ledger’s page one story on lack of snow for skiing: At ski resorts, warm winter threatens snow-centered business

[ in a perfect illustration of the pack behavior of the media, the NY Times runs the same story – Did the ski industry issue a press release or something?]

Of course, no mention whatsoever of global warming. Instead, we get the typical La Nina “cause” (practically the only “climate phenomenon” we hear about):

While ski slopes in the West got a wealth of early season snow, the outlook back East is uncertain with January around the corner.

That’s partly due to La Nina, a climate phenomenon that tends to bring warmer than average temperatures to the northeastern U.S. throughout the winter, according to the National Weather Service.

So, for all you snow lovers out there, I thought I’d provide some “balance” on the science:

Here are relevant key findings from the impact assessment of the Union of Concerned Scientists Report: Confronting Climate Change in the US Northeast: Science, Impacts, and Solutions (@ page 81)

Chapter 8 Impacts on Winter Recreation

Global warming is projected to profoundly affect winter recreation and tourism in the northeast as winter temperatures continue to rise and snow cover declines, especially under the higher- emissions scenario.

Warmer winters would also shorten the average ski and snowboard seasons, increase snow- making requirements, and drive up operating costs (particularly under the higher-emissions scenario). this may prompt further closures and consolidation of ski areas northward toward the canadian border.

Under the higher-emissions scenario, only the northern new england states and the north country of new york are projected to support viable ski operations by mid-century. by the latter part of the century, only western maine is projected to retain a reliable ski season under the higher-emissions scenario.

Under the lower-emissions scenario, reliable ski seasons can be expected through this century in the north country of new york and parts of vermont and new hampshire, in addition to western maine.

These projections may be conservative, as the climate models used in this analysis have consistently underestimated the rapid winter warming and snowpack decline observed in recent decades.


As the Northeast’s climate changes, so will the length and quality of its outdoor-recreation seasons. Winter snow and ice sports, which are worth some $7.6 bil- lion annually to the regional economy, will be partic- ularly affected.1 Of this total, alpine skiing and other snow sports (not including snowmobiling) account for $4.6 billion annually.2 Snowmobiling, which now rivals skiing as the largest winter recreation indus- try in the United States, accounts for the remaining $3 billion.3,4,5 Other winter traditions, ranging from skating and ice fishing on frozen ponds and lakes to cross-country (Nordic) skiing, snowshoeing, and dogsledding, are integral to the character of the Northeast and, for many, its quality of life.

Global warming is projected to bring about a dramatic decline in the average number of snow- covered winter days across the Northeast, especially under the higher-emissions scenario. By the end of the century the northern part of the region is con- servatively projected to have lost up to one-quarter of its snow-covered days under the lower-emissions scenario and more than half of its snow-covered days under the higher-emissions scenario.6 (See the climate chapter.) Winter activities such as snowmobiling, cross-country skiing, snowshoeing, and sled- ding that depend primarily on natural snow cover will be most vulnerable to this decline.

Most previous assessments of the vulnerability of winter recreation to global warming have not ex- amined the impacts on snowmobiling or the abil- ity of the ski industry to adapt through increased snowmaking. These factors were, however, primary considerations in this assessment of the Northeast’s winter recreation/tourism sector.7 Ski resorts in the region have invested heavily in snowmaking tech- nology over the past two decades to address year- to-year variations in natural snowfall and extend the skiing season. By the 2004 – 2005 ski season, 75 percent of the Northeast’s skiable terrain had been augmented with snowmaking equipment, which allowed resorts to extend their seasons compared with the 1980’s despite winters in the 1990s that were the warmest on record.

A recent study of winter recreation in New Hampshire over the past two decades of highly variable snowfall found (not surprisingly) that more people participate in outdoor recreation when winters are cold and snowy.8 Tourism earns the state $4 billion a year, and although winter visitors represent less than one-quarter of all tourists, they spend almost 19 per- cent more per day than the average tourist because of the expensive natures of skiing and snowmobil- ing. Winters with above-average snowfall attract 14 percent more alpine skiers, 30 percent more Nordic skiers, and 26 percent more resident snowmobilers (i.e., those buying snowmobile licenses) to New Hampshire’s winter recreation areas, largely concen- trated in the northern part of the state. This in turn translates into an extra $13 million in ski-lift tickets and snowmobile registration fees. Snowy winters also generate about 3,000 more jobs in the state than less snowy ones.9

The overall impact of climate change on the Northeast’s tourism economy will of course depend not only on declining winter recreation opportuni- ties but also on potentially expanding opportunities for many warm-season activities such as golfing, hik- ing, all-terrain vehicle (ATV) riding, boating, fishing, and beach use. In 2006, for example, New Hampshire purchased 7,500 acres of land to establish a state- run ATV park (one of the few north of Pennsylva- nia).10 Such developments may provide a glimpse of the recreation-tourism sector’s future responses to unavoidable warming.

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I Missed the Point

December 22nd, 2011 No comments
oops! Wrong mountain. That's Point Mountain in the background

oops! Wrong mountain. That's Point Mountain through the trees.

I’ve bicycled over the top of Musconetcong Mountain and through the lovely river valley down to the Delaware, so I figured I’d ramble in the woods along the mountain ridges.

Did a quick Google and decided to head out for a hike today to Point Mountain.

After an invigorating climb and wandering in loops, I realized – Oops! – I missed the Point – I guess I took the wrong trail off Pennwell Road.

All in all, still a good day lost in the woods.

Maybe we’ll get the Point next time!

one of the highest rock walls I've seen - almost 4 feet

one of the highest rock walls I've seen - almost 4 feet

tributary to the Muskie

tributary to the Muskie

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More DEP Technical Manuals on the Way?

December 20th, 2011 No comments

Technical Manuals ARE Enforceable

Let’s get back in the weeds for a quick but important followup on my post yesterday regarding legislation that would limit the DEP’s use of Guidance documents and expressly prohibit their enforcement.

While this set of issues certainly are not sexy and amenable to a sound bite, they define both the rules and equipment for playing the gameliterally the stuff of how environmental protection gets done; or the how and why of DEP permitted pollution increases and destruction of natural resources.

Like a hockey player’s skates, or a golfer’s clubs, or a surgeon’s scalpel, or the primary producers in the ecosystem – essential elements that are ignored at peril (with raises a question for another post: why do these “in the weeds” issues get virtually no attention by environmentalists and media?)

As I noted, there are many Guidance documents used to implement almost every program.

Virtually all DEP Guidance documents could be interpreted to containadditional requirements that are not included in the ruleand thus effectively be banned by the legislation.

So, if the Governor signs the bill into law, DEP will be faced with 3 options:

1) shelve the Guidance documents and operate the programs based only on rules;

2) promulgate all the Guidance documents as regulations; or

3) adopt the Guidance documents as Technical Manuals (TM).

Current pro-business DEP Commissioner Bob Martin is very likely to choose option #1.

This would please the polluters and developers and is administratively the easiest way out.

But it would create bureaucratic and legal chaos.

It would provide far more control to the regulated community (polluters and developers) as they alone decided how to interpret and comply with regulations. Such an “anything goes” “you decide” approach to technical requirements would undermine DEP’s efforts to promote compliance and frustrate enforcement of environmental laws. Basically, there would be nothing to enforce, as the permittees basically write their own permits.

But a subsequent Commissioner is very likely to choose option #3 – Technical Manuals – which is the best option (option #2 is technically and legally challenging, if not impossible, and far too much work anyway with limited DEP manpower).

So, what is a Technical Manual?

Technical Manuals essentially are a hybrid of a Guidance document and a regulation. They have the technical detail of a Guidance document and are equally binding and enforceable as a regulation.

The big difference is that a Technical Manual does not require DEP to engage in full blown rule making requirements (i.e. public notice and comment, response to comment, and comply with all the content requirements of a rule proposal, like impact statements).

Ironically, the streamlined procedures for adopting Technical Manuals directly conflict with Govenror Christie’s Executive Order #2 “common sense” regulatory policies, which seek to increase pre-proposal access,  participation, and content control for the business community over DEP rules.

They also conflict with the Legislature’s various efforts to promote more business control, transparency, “regulatory flexibility”, and an increased role for small business in DEP regulatory policy.

Technical manuals were authorized by the Legislature in 1991, as part of an accountability measure known as “EMAP”. Here is the boilerplate all original DEP Technical Manuals contained:

This manual has been produced by the Department of Environmental Protection (DEP) to make the permit process less complicated and time-consuming for you. This manual is one of a series of technical manuals produced by DEP under the requirements of the Environmental Management Accountability Plan (P. L. 1991, Chapter 422) with the goal of making the permit application process more consistent and predictable. In each technical manual, you will find summaries and explanations of policies that may not be fully described or explained in environmental laws or regulations. In addition, the manuals contain guidance on how the Department defines other standards, such as “state- of-the-art” control technologies or “best management practices.”

Unless otherwise required by federal or state law, the policies and procedures contained in a technical manual on the date an application is filed will be binding on both the DEP and the applicant.

They originated and are used mostly in the air program. The air program TM’s were developed with significant input by industry engineers, particularly during the Whitman Administration’s “DEP re-engineering” initiative  (see this for air program TM’slots of good stuff there: air quality modeling, risk assessment, stack tests, continuous emissions monitoring, odor controls).

And here are Division of Water Quality Technical Manuals.

(Note: all of them now look like they have been scrubbed of the above boilerplate discussion of the statutory basis and intent and binding nature and enforceability . This is unfortunate, as it muddies the waters regarding enforcement of the contents of a Technical Manual).

I attempted to educate Chairman Burzichelli and clarify the status of Technical Manuals during , my March 4, 2010 testimony. From response questions, it was clear that neither Burzichelli nor OLS knew of or considered Technical Manuals in drafting the bill.

So, if the Governor signs the bill, it is likely to create pressures for DEP to promulgate detailed, prescriptive, and enforceable Technical Manuals.

So, a note to the polluters and developers: be careful what you ask for!

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Bill Banning Enforcement of Guidance Moves to Governor Christie’s Desk

December 19th, 2011 No comments

Bill Would Hamper Compliance and Enforcement of Environmental Laws

Lt. Gov, Guadagno - Christie's "Red Tape Czar"

Lt. Gov, Guadagno – Christie’s “Red Tape Czar”

Last week, legislation that was originally intended to outright ban the use of Guidance documents by State Agencies passed both houses, and is now on Governor Christie’s desk.

Guidance documents generally interpret regulations and provide detailed directions on how to comply.

They are intended to make it more efficient and easier to implement and enforce regulations.

But many big polluters and developers have long sought to kill Guidance dcouments, as a means of blocking what they mistakenly view as an expansion of regulatory burdens and unlawful enforcement of environmental regulations.

The bill (A2464/S1783) was one element of a package to legislatively codify and implement Governor Christie’s “common sense regulation” and “Red Tape” Executive Order based initiatives.

There is no debate that the legislation targets DEP and environmental programs.

We testified before the Assembly Regulatory Oversight Committee in opposition on March 4, 2010 to explain how wrongheaded such a bill would be, given numerous DEP Guidance documents that are necessary to implement virtually every environmental program.

Remarkably, however, DEP Deputy Commissioner Kropp testified in support of the ban version of the bill (see: Democrats in Legislature Join Christie’s Red Tape Environmental Rollback Juggernaut).

In response to some of our concerns, Chairmen Burzichelli agreed to amend his bill.

(On a related note, it looks like the companion Red Tape bill, A2486[2R] to prohibit State standards more stringent then federal requirements (S1986) is stalled in the Senate.)

The bill subsequently was amended on March 15, 2010 on the Assembly floor to eliminate the outright ban on Guidance. Doing a complete U-Turn, instead of a ban, the amendments specifically would allow the use of Guidance.

But the floor amendments raised additional concerns, by restricting then scope and prohibiting the enforcement of Guidance documents:

A regulatory guidance document authorized pursuant to this subsection, until such time as it is adopted as a rule pursuant to P.L.1968, c.410, shall not:

(1) impose any new or additional requirements that are not included in the rule that the regulatory guidance document is intended to clarify or explain; or

(2) be used by the State agency for enforcement purposes.

One example I offered in testimony to illustrate why the bill was a bad idea was the 47 Guidance documents used in the DEP Site Remediation Program.

Some of these Guidance documents include “requirements that are not in the rule” and are specifically incorporated in the regulations by reference, making them enforceable.

As such, the bill would ban or restrict their use and raise numerous legal and enforcement issues, many of which are likely to spawn litigation.

A key example is the controversial Vapor Intrusion Guidance.

Toxic chemical vapors could be migrating into homes and buildings at hundreds of sites across the state.

The vapor issue is now in the national spotlight, because due to vapor risks, EPA recently announced an intention to begin to consider vapor intrusion as a factor in Superfund listing decisions.

But it is not just the Site Remediation Program that would be impacted.

Here are some other examples of DEP implementation Guidance:

This legislation is all about handcuffing DEP and preventing them from enforcing environmental laws.

Ironically, the regulated community historically has requested – and benefitted from – DEP Guidance documents, which interpret complex regulations and aid compliance.

We urge the Governor to veto the bill.

But we suspect he will welcome them as tools to implement his “common sense regulation” and “Red Tape” initiatives.

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