WolfeNotes.com

DEP to Delist Bay “impairments”, Despite Rutgers Study 

[Update – 7/27/12 – Having been caught with their pants down, and knowing that EPA would never approve this scientifically bogus and illegal delisting, DEP now says the proposal will be withdrawn. Tom Johnson at NJ Spotlight reports another huge embarrassment by Businessman Bob and his DEP gang that can’t shoot straight:

“In all likelihood, this proposal will be withdrawn,’’ Hajna said. [end update]

[technical Update below – for wonks only!]

“BB-LEH Estuary is an impaired system both in respect to aquatic life support and human use as is evident in the conclusions of this study”  ~~~ Rutgers Professor Michael Kennish “Assessment of Nutrient Loading and Eutrophication in Barnegat Bay-Little Egg Harbor, New Jersey in Support of Nutrient Management Planning”

We have been writing for some time about flaws in DEP’s response to Barnegat Bay, particularly with respect to failure to develop a “Total Maximum Daily Load” (TMDL) as required by the federal Clean Water Act.

We have focused on major flaws in DEP surface water quality standards, water quality monitoring, and assessment methods to determine “impairment”.

As we wrote long ago:

Eutrophic condition indicators – are all bad – while DO shows low eutrophication [i.e healthy water quality]:

Basically, DEP regulations, methods, and programs fail to measure actual conditions and respond to the fact that all the science and ecological indicators prove that the Bay is on the verge of ecological collapse.

Those DEP technical and policy problems are made far worse by Governor Christie’ regulatory animus, including his veto of legislation that would have required that a TMDL be developed for the Bay.

Going beyond even those historical failures, in an outrageous move, DEP now has proposed to delist Barnegat Bay (scroll towards end of document) as an impaired water body in the 2012 “impaired waters list“ submitted to US EPA for review and approval, as required by the Clean Water Act.

The DEP proposal reverses prior “impairment” findings and contradicts years of science that shows the Bay is “impaired” and on the verge of ecological collapse.

A major Rutgers study found:

“BB-LEH Estuary is an impaired system both in respect to aquatic life support and human use as is evident in the conclusions of this study”.

The DEP proposed delisting was blasted in comments submitted to EPA by  scientists at the Barnegat Bay Partnership:

We are concerned that the Department is using the Barnegat Bay 2011 Monitoring data to remove impairments from the Integrated List at this stage but appears to be putting off using that same data to add any potential impairments until the new bay-specific methodology is established. Any delistings based on the 2011 data should occur after the new methodology is developed and more information is available to examine if conditions have indeed changed.

The timing of dissolved oxygen (D.O.) sample collection is also a concern.  Minimum D.O. levels tend to occur in the early morning hours.  Grab samples collected in the late morning to mid-day do not represent minimum D.O. conditions.

DEP has known about these flaws – which present a false favorable assessment of water quality and ecological health – for over 15 years, yet has done nothing to correct them.

We will be calling on EPA to reject the DEP proposal.

For details, see below from our friends at PEER:

BOGUS BARNEGAT BAY CLEAN BILL OF HEALTH IS DEATH SENTENCE
Removing It from Impaired Waters List Precludes Remedial Action for Years  

Trenton — In a regulatory sleight of hand, the Christie Department of Environmental Protection (DEP) has proposed to remove the ailing Barnegat Bay from the official list of water bodies slated for remedial action in the next two years. The New Jersey Department of Environmental Protection (DEP) proposal to remove Barnegat Bay from the 2012 list of impaired waters flies in the face of a recent Rutgers University study that found the Bay on the verge of ecological collapse.  If approved by the U.S. Environmental Protection Agency (EPA), the effect will be disastrous for Barnegat Bay’s future viability, according to Public Employees for Environmental Responsibility (PEER).

Every two years states submit to the U.S. Environmental Protection Agency for review and approval a list of streams, lakes, bays and other water bodies that do not meet the minimum standards of the federal Clean Water Act.  That “impaired” listing triggers a legal requirement that the state must develop and execute a recovery plan, called a Total Maximum Daily Load (TMDL), which essentially puts the water-body on a pollution reducing diet until it returns to ecological health.

Earlier this month, New Jersey submitted its 2012 list to EPA but delisted major portions of Barnegat Bay with cryptic explanations, such as this:

“Applicable WQS [Water Quality Standard] attained; reason for recovery unspecified.”

The 2012 proposed deletion would reverse prior “impairment” designations by the DEP due to low levels of dissolved oxygen (DO) in the water.  That finding was disputed in comments submitted to EPA by scientists at the Barnegat Bay Partnership (BBP), the lead management entity for the Bay. In addition to violating the DO standard, the Bay also suffers from severe eutrophication, over-abundant stinging jellyfish, hazardous algal blooms, and declining health of multiple biological indicators, including submerged aquatic vegetation.

Perhaps worst of all, the proposed delisting freezes any significant near-term action to heal the Bay, especially if DEP continues to employ regulatory evasions.  For example, DEP would need to revise various surface water quality standards and assessment methods, both of which require public comment period and EPA approval, but no such plans are even on the horizon.  Even if it Barnegat Bay were put back on the 2014 “impaired” list, a TMDL Report would be completed no sooner than 2016 which then must go through the rulemaking process as an amendment to the Water Quality Management Plan, a process taking a year or more.  That would push clean-up implementation back to 2018 at the earliest.

“All of the ecological trends in Barnegat Bay are pointing downwards and this critical water body may soon reach a tipping point to becoming a dead zone,” stated New Jersey PEER Director Bill Wolfe, noting that Governor Chris Christie vetoed legislation last year requiring a TMDL for Barnegat Bay.  “The DEP is defying the science and clearly violating the Clean Water Act by using regulatory powers in a political attempt to echo Governor Christie’s veto of a TMDL for the Bay. This amounts to a death sentence for Barnegat Bay.”

###

See the delisting of Barnegat Bay from 2012 impairment list

Look at new Rutgers study on declining health of Barnegat Bay

See the critical comments from the Barnegat Bay Partnership

View continuing threats to Barnegat Bay

New Jersey PEER is a state chapter of a national alliance of state and federal agency resource professionals working to ensure environmental ethics and government accountability

[Technical update – Just how long will it take DEP to develop water quality standards, monitoring data, assessment methods, and Guidance documents required to protect Barnegat Bay and produce real (enforceable and quantifiable) pollutant reductions?

DEP documents show that they had been working on this for more than 15 YEARS!

In 2003, I led a DEP team that did that for phosphorus nutrient problems in freshwater – that effort took less than 6 MONTHS! See this DEP Technical Manual:

A bit of history on BBay nutrient issues – By their own documents, DEP knew that dissolved oxygen was a very poor indicator way back in the mid 1990’!:

The DEP’s “2012 Integrated Water Quality Monitoring and Assessment Methods” document states:

The Department is currently developing indexes to assess biological health and other methods for identifying the causes and sources of water quality impairment within the watershed, with the goal of developing watershed-specific nutrient criteria. Additional information about this effort is available on the Department’s Web site at http://www.state.nj.us/dep/barnegatbay/plan- wqstandards.htm. Because of its priority status, the Barnegat Bay initiative is proceeding on a different timeline than the 2012 303(d) List, which must be submitted to USEPA by April 2012. The Department will still include the Barnegat Bay in its statewide assessment of water quality for 2012; however, that assessment will be based primarily on concentrations of dissolved oxygen, levels of pathogenic bacteria, and other relevant data, as described in the 2012 Methods Document. This assessment will also utilize the extensive water monitoring data collected in Barnegat Bay and the tributaries throughout 2011 as part of this priority initiative. New assessment methods developed for the Barnegat Bay will be proposed for public review and comment separately from the draft 2012 Methods Document and, once those new methods are finalized, they will be employed to assess the waters of the Barnegat Bay Watershed. The Department expects the water quality assessment of the Barnegat Bay to be completed by 2013. 

But according to DEP’s 2009 “Nutrient Criteria Enhancement Plan”:

Fifteen years is far too long to fix these regulatory and policy problems.

As I noted above with respect to phosphorus eutrophication in freshwater, with leadership biological thresholds to support an enforceable standard can be put in place in less than 6 MONTHS!

View of the Youghiogheny River, about 2 miles south of Ohiopyle, Pa.

As I quickly write this today (Tuesday, July 24), the “Tour De Frack” will have almost reached its destination – Washington DC – after a 400 mile trek from Butler Pa.

I was not able to ride the full route – I dropped out  about half way, in Cumberland Maryland after 170 miles at the end of the Great Allegheny Passage (a full writeup and photos in future posts).

I am posting this brief note now just to say I am back and will be writing about the whole saga in the next few days.

same view, without the bike

Both statements can not be true – see what’s behind these Doors:

Door #1

Business groups just persuaded the legislature that a huge glut of DEP issued permits were slated to expire and should be extended.

That’s the rationale for passage of the Permit Extension Act, which is now on the Governor’s desk and expected to be signed (I have called this proposed legislation The Real Estate Bubble and Toxic Asset Extension Act).

Door #2

These same business groups and Governor Christie and DEP Commissioner Martin claim that DEP permit delays and uncertainty are impediments to investment and economic growth.

Gov. Christie’s policy response is to provide “regulatory relief”, slash “job killing red tape”, “streamline” and “privatize” DEP oversight, and drive “culture change” at DEP to make the agency more “customer friendly” and revise its mission to actively “promote economic growth” (a policy I have described as a “train wreck”).

So which is it?

Are there too many DEP permits (Door #1) or is it too hard to get a DEP permit (Door #2)?

Drumroll….. Find the answer below from our friends at PEER:

For Immediate Release: July 9, 2012
Contact: Bill Wolfe (609) 397-4861; Kirsten Stade (202) 265-7337

THE CHRISTIE MYTH OF ENVIRONMENTAL RED TAPE — New Jersey Stopped Issuing Backlog Report Which Showed No Permit Backlog

Trenton — To hear Governor Chris Christie tell it, long delays and uncertainty in issuing environmental permits are a major factor limiting economic growth in New Jersey.  In fact, the overwhelming majority of DEP permits are approved and issued on time, but the public would not know it because the state Department of Environmental Protection (DEP) stopped issuing its annual report on permitting back in 2007, according to Public Employees for Environmental Responsibility (PEER).

Under a law enacted in the early 1990’s known as “EMAP” (Environmental Management and Accountability Plan), DEP is required to submit an annual report to the legislature on permit review timeframes and approval rates. The most recent report showed that DEP approved more than 95% of permit applications, and the large majority was approved within established review timeframes.

These numbers contradicted two central premises of the Christie administration: 1) DEP permit review delays impede economic growth. Governor Christie claims that companies relocate to other states to avoid permit delays in New Jersey; and 2)  A low DEP permit approval rate allegedly creates uncertainty which deters investment.  Perhaps not surprisingly, the actual numbers never reappeared.  When he came into office, Gov. Christie launched a “Red Tape Commission” that targeted DEP permitting and regulations as the key to generating jobs.

“Governor Christie’s principal platform was to fix something that was not broken,” stated New Jersey PEER Director Bill Wolfe, a former long-time DEP analyst. “The absence of evidence supporting the premises behind the Governor’s ‘Red Tape’ initiatives is compounded by the suspension of the annual reports, which allow valid comparisons over time. Available DEP permit reports either do not support or flatly contradict the Governor’s assertions.”

Early in his tenure, Gov. Christie issued a series of Executive Orders to cut perceived red tape.  Without determining whether these moves had any effect, the Christie administration continued to rail against alleged environmental delays, rolling out a lengthening list of “reforms” including—

• A DEP Transformation Plan, accompanied by a “DEP Vision and Priorities” in which it is made clear that DEP must, above all, be “customer friendly” and  promote economic development;
• A “Waiver Rule” allowing any permit requirement to be set aside; and
• “Permit Extension” legislation to eliminate the need to renew lapsed permits.  This bill passed both houses of the Legislature and is on Gov. Christie’s desk awaiting final approval.

This parade of relaxations ignored the recommendations of a “Permit Efficiency Taskforce” convened by former DEP Commissioner Lisa Jackson.  Composed largely of industry “stakeholders,” this Taskforce produced a series of technical improvements that the Christie administration never revisited.

“In addition to available evidence that shows DEP approves permits in a timely fashion, there is a glut of permits DEP already issued for projects that have not been built due to economic conditions. That’s why the Legislature just passed ‘The Permit Extension Act’ to keep all of these surplus permits from lapsing,” said Wolfe, arguing that DEP could not logically be blamed for creating obstacles to economic development. “Of course, completely lost in all this streamlining is whether meaningful environmental protection is removed from the equation.”

See the last permit status report from 2007

Peruse the pending Permit Extension Act

Scan the Red Tape Commission report

View the DEP Transformation Plan

Look at the DEP Waiver Rule

Revisit Lisa Jackson’s Permit Reform Task Force

New Jersey PEER is a state chapter of a national alliance of state and federal agency resource professionals working to ensure environmental ethics and government accountability

Bike Ride To “Stop the Frack Attack” – National Convergence on DC on July 28

Activist protest in Trenton, NJ to block adoption of proposed DRBC fracking regulations (11/21/11). Th DRBC vote was postponed, and rules have not been adopted to date.

This Saturday, July 14, I will join the kickoff of the “Tour de Frack”, a 14 day, 410 mile bicycle – activism tour.

The adventure begins in western Pennsylvania, in the belly of the Marcellus shale fracking beast, Butler Pa., (about 50 miles northeast of Pittsburgh) and culminates in Washington DC, for a July 28 national day of protest organized by Stop the Frack Attack.

To get involved or learn about the objectives, the route, the schedule, and tour related events, go to the Tour De Frack’s website, which explains “Activism in Motion“:

The bike is only a small part of the story.  This effort is designed to be a change in perspective and a vehicle to pull the national focus towards human tales of fracking while uniting the voices of those who have lived and seen its true dangers.

Along the way, we will tell the personal stories of people and communities harmed by fracking. We will experience the tremendous natural resources, people, and history of the Allegheny region.

There is no mode of travel  – other than walking or horseback – like experiencing the landscape on a bicycle. As we tour, we will meet and join forces with a diverse set of people, from organic farmers, anti-mountaintop mining activist, and local artists, musicians, and merchants.

I just recently learned of the Tour and read their website, I was excited by the prospect and immediately decided to go – there is so much in the Tour’s philosophy and model of activism that appeals to me. And I’ve been involved in and writing about fracking for some time.

The event was conceived of and planned by people who want to care for the communities they live in and the places they love, and to protect the future of their children. No foundation grants, technical experts, lawyers, lobbyists, press releases, and campaign plans –  just authentic caring, sharing, and engaged citizenship.

The tour’s focus is more inclusive than traditional environmental supporters. The tour is reaching out to and doing events with local food producers, artists, musicians, merchants, and community leaders who care about principles of health, beauty, and permanence – all at a meaningful and human scale, while coordinated with a national event: Stop the Frack Attack, who are:

a nationwide coalition of citizens, communities and organizations declaring the time is NOW to use our collective power to end oil and gas drilling that harms public health, water and air quality, and the climate.

The Tour de Frack will blend education, activism, bicycle touring, camping and outdoors experiences.

Riding my bike, camping, touring, meeting wonderful people, and engaging in activism – how could it get any better?

Yet at the same time, I am anxious and uncertain about the challenge, both physically and emotionally.

Last year at this time, I had about 1,500 miles in the saddle – this year only about a third of that, so conditioning and stamina will be a struggle. The recent heat wave has been ugly, let’s hope it breaks. Securing adequate food and water along the way is always a huge challenge, and I haven’t lived in a tent/sleeping bag for two weeks since the Carter Administration – will my butt and back survive?

Psychological doubt creeps in when I think about my first attempt at a solo tour last year  – I dubbed it my virgin “Sources of the Delaware”  tour- which failed after only 100 miles (were the lessons learned?) . And meeting, riding 40 miles a day, and living on the road with a bunch of great new people will be interesting, of course, but, with the physical strain, an emotional challenge as well.

At any rate, I hope to blog the trip, with at least a daily post of photos and text about our adventure (assuming I can find a power source and internet connection) – the scenes, the people we meet, the issues we engage, and the miles and challenges overcome (and those that overcome us!).

In addition to reading the blog, I urge folks to reach out to others and get on a bus, train, or carpool to DC on July 28 for the national protests – see this for info.

I also urge folks to contribute whatever you an afford to Tour de Frack and Stop the Frack Attack  (see Pay Pal on website) – I also am seeking support to defer my expenses, which can be sent to me  at PO Box 112, Ringoes, NJ 08551

Enjoy!

Our supporters thus far:

Japanese Find: “Existing regulations biased toward promotion of nuclear energy, and not to protecting public safety, health and welfare.”

NJ Gov. Christie’s Lax Regulatory Policy Mimics Japanese Failure

The Japanese Government just issued a scathing Report on the Fukushima nuclear disaster.

My guess is that any US media coverage will suggest that these problems are cultural and limited to Japan, where an unhealthy respect for authority is a cultural reality.

That “it can’t happen here where we have independent and vigorous regulatory oversight” view contrasts with how the NY Times investigative stories covered the nuclear industry in Japan.

In critical stories written shortly after the disaster, The Times exposed scandalous industry corruption, bribery, propaganda, myths, and improper industry influence that they would never write about in the US:

Over several decades, Japan’s nuclear establishment has devoted vast resources to persuade the Japanese public of the safety and necessity of nuclear power. Plant operators built lavish, fantasy-filled public relations buildings that became tourist attractions. Bureaucrats spun elaborate advertising campaigns through a multitude of organizations established solely to advertise the safety of nuclear plants. Politicians pushed through the adoption of government-mandated school textbooks with friendly views of nuclear power.

The result was the widespread adoption of the belief called the “safety myth” that Japan’s nuclear power plants were absolutely safe. …

Japan’s government has concentrated its propaganda and educational efforts on creating such national beliefs in the past, most notably during World War II. The push for nuclear power underpinned postwar Japan’s focus on economic growth and its dream of greater energy independence.

The Times’ reporting on Japan contrasts with what the media portray as strong US regulators and open and pro-public interest culture. While giving US industry and regulators a pass, The Times warned us all about  Japan’s secret and corrupt “culture of complicity“:

In 2000, Kei Sugaoka, a Japanese-American nuclear inspector who had done work for General Electric at Daiichi, told Japan’s main nuclear regulator about a cracked steam dryer that he believed was being concealed. If exposed, the revelations could have forced the operator, Tokyo Electric Power, to do what utilities least want to do: undertake costly repairs.

What happened next was an example, critics have since said, of the collusive ties that bind the nation’s nuclear power companies, regulators and politicians.

Despite a new law shielding whistle-blowers, the regulator, the Nuclear and Industrial Safety Agency, divulged Mr. Sugaoka’s identity to Tokyo Electric, effectively blackballing him from the industry.

So, I’ve again excerpted the primary conclusions from the Report on the Japanese experience as instructive for virtually every sphere of US nuclear, energy, environmental, and public health and safety regulatory programs across government agencies.

The historical policy and institutional problems outlined in the Japanese Report are greatly magnified right here in NJ by the Christie Administration’s policy, which is to slash “job killing red tape” regulations and reorient DEP’s culture and mission to be more “customer friendly” and to “promote economic development”.

These are exactly the policies that caused the Fukushima disaster. (and don’t forget that Oyster Creek, the oldest US nuke plant, is one of 23 Zombie US plants with the same flawed design as Fukushima.)

As the case of NJ nuclear whistleblower Dennis Zannoni makes clear (as well as my own experience), the Japanese findings are directly relevant to the US and the exact same set of systemic problems are present in US industry and regulatory agencies.