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DEP Lax Enforcement on Water Use, as State Suffers Extreme Heat Wave

At the outset of the Christie Administration, after review of their first budget we disclosed plummeting enforcement fines, a fact recently validated by  Todd Bates of the Asbury Park Press, who found:

proposed fines covering seven major DEP programs, including air and water quality and land use, plunged from $31.6 million in fiscal year 2007 to $9.1 million in fiscal 2011. That’s the lowest figure since at least 2002 and about half the 10-year average.

The collection of fines is down as well, dropping to $7.5 million in fiscal 2011, the lowest figure since 2006. Also, the number of enforcement inspectors has dropped by about 20 percent over the past five years, making it more difficult to catch polluters in the first place.

At the same time, the DEP has dramatically increased the number of settlements it has agreed to, allowing polluters to get off with relatively small fines. These settlements, the environmental equivalent of a plea bargain, allow violators to pay far less in fines, sometimes pennies on the dollars.

More recently, we’ve written about legal vulnerabilities that drive dramatic reductions in DEP enforcement penalties (see: Thousands of DEP Permits Unenforceable).

(see: DEP cuts $430,000 fine to Zero )

So, a story today repeats that pattern, and goes further, illustrating how it is actually profitable to violate DEP water allocation permit restrictions.

DEP issues water allocation permits to large water users (> 100,000 gallons per day). Those permits restrict the total amount of water a company can safely use in order to protect water resources and the allocated rights of other water users.

So, lets follow the math of DEP enforcement and show exactly how it pays to violate.

This should never happen, because a fundamental principle of enforcement policy is deterrence – to deter violations, the DEP enforcement action is supposed to eliminate the economic gain of a violation.

According to today’s Bergen Record,  Ridgewood Water: Fine against company result of residents who ignore restrictions

RIDGEWOOD — An official at Ridgewood Water Company says a fine levied against the company for using too much water was caused by residents who disregard water conservation rules.

“We put in watering restricting and we put them in every year,” said Frank Moritz, who runs the water company. “It’s voluntary and we did it in 2010 but the sprinklers go on and keep going on.”

Ridgewood Water services 20,000 households in Glen Rock, Wyckoff, Midland Park and Ridgewood and has been negotiating with the state Department of Environmental Protection to reduce the $38,000 fine, which was slapped on the company for using 60.1 million gallons more than allowed in 2010.

A $38,000 fine for using 60.1 million gallons equates to 63 cents per 1,000 gallons:

($38,000)/(60,100,000 gallons) X (1,000 gallons) =  $0.6323/1,000 gallons

Just last month, the Record reported that Ridgewood Water rates to rise again, despite litigation:

With the council’s unanimous approval after eight public hearings, Ridgewood Water will now bill its customers at a rate of $4.42 per 1,000 gallons. That figure is up from the $4.33 per 1,000 gallons assessed beginning in January.

So do the math:

The water company charges $4.42 per 1,000 gallons and pays a DEP fine of just $0.63 per 1,000 gallons.

They make $3.79 per gallon of water used in violation of their DEP permit.

They make money violating the DEP water allocation permit!

DEP must set fines based, at a minimum, on the economic benefit of violation.

To do that, the proposed $38,000 fine would have to be increased lost 7 TIMES, to  $265,642 (rate of $4.42 per 1,000 gallons times 60.1 million gallons)

I’ve asked DEP Assistant Commissioner for Enforcement Wolf Skacel to look into this.

Asher Durand "In the Woods" (1855)

The Hudson River School was America’s first true artistic fraternity. Its name was coined to identify a group of New York City-based landscape painters that emerged about 1850 under the influence of the English émigré Thomas Cole(1801–1848) and flourished until about the time of the Centennial. Because of the inspiration exerted by his work, Cole is usually regarded as the “father” or “founder” of the school, though he himself played no special organizational or fostering role except that he was the teacher of Frederic Edwin Church (1826–1900). Along with Albert Bierstadt (1830–1902), Church was the most successful painter of the school until its decline. After Cole’s death in 1848, his older contemporary Asher B. Durand (1796–1886) became the acknowledged leader of the New York landscape painters; in 1845, he rose to the presidency of the National Academy of Design, the reigning art institution of the period, and, in 1855–56, published a series of “Letters on Landscape Painting” which codified the standard of idealized naturalism that marked the school’s production. The New York landscape painters were not only stylistically but socially coherent. Most belonged to the National Academy, were members of the same clubs, especially the Century, and, by 1858, many of them even worked at the same address, the Studio Building on West Tenth Street, the first purpose-built artist workspace in the city. Eventually, several of the artists built homes on the Hudson River. Though the earliest references to the term “Hudson River School” in the 1870s were disparagingly aimed, the label has never been supplanted and fairly characterizes the artistic body, its New York headquarters, its landscape subject matter, and often literally its subject.

A Sycamore Tree, Plaaterkill Clove ( Duran, 1858)

Duran did other lovely Sycamores:

The Catskills (1859)

Thomas Cole, founder of the Hudson River School, said this:

‘Yet I cannot but express my sorrow that the beauty of such landscapes are quickly passing away–the ravages of the axe are daily increasing–the most noble scenes are made desolate, and oftentimes with a wantonness and barbarism scarcely credible in a civilized nation. The wayside is becoming shadeless, and another generation will behold spots, now rife with beauty, desecrated by what is called improvement; which, as yet, generally destroys Nature’s beauty without substituting that of Art.’

Promenade on Ring Rock: 1866 (Cropsey)

Monmouth County Pipeline Collapse Illustrates Vulnerability

[Update #3 – 11/11/12- Who knew I had all this brilliant academic and theoretical backing?

While many practitioners and academics use the term sustainability instead of landscape integrity, this author is more closely aligned with Forman (2008) when he eloquently argues that, “I usually avoid the term [sustainability] as mainly being a goal reflecting each user’s agenda rather than a base of knowledge, and more to the point, it feels about as solid as sitting on a chair of jello, or toothpaste” (2008, 252; see also Conroy and Berke 2004). (@ p.3)

Update 7/5/12 – I urge readers to click on to the comments and read the response and information provided by Randy Solomon of Sustainable Jersey.]

[Updates below]

As the dust literally settles in the Monmouth County water emergency and accountability investigations begin, I thought I’d take a more detailed look at the Christie Administration’s Climate Change Adaptation Planning Program.

Amazingly, Middletown Township – the location of the pipeline collapse – has a  “Sustainability Plan” application that is supposed to address infrastructure and climate change adaptation – but it doesn’t. [ The map of participating towns shows Middletown as having a certified plan.]

Even more amazingly, analysis shows that the State relies completely on this failed voluntary local process and outsources the content of the plans to a private, corporate dominated group.

So, the results are shocking, but not surprising: a massive across the board failure.

So follow the logic closely as we trace the Administration’s failures.

The performance is so consistently bad, it makes analysis and criticism like shooting fish in a barrel.

The first place I checked was NJ’s State planners at what used to be called the Office of Smart Growth (which is now promoting economic development as part off the Lt. Gov.’ “Business Action Center”).

Climate change adaptation is such a tabooed anathema to the Christie Administration that State planners can not even mention the words! 

Not only is there a gag on using words to describe the concept, the State had merely delegated the entire issue to the local level and tried to shoehorn it into the pre-existing and now defunct “plan endorsement” process (which ignores infrastructure, maintenance, adaptation, and financing).

But worse, Christie’s new State Economic Development Plan eliminated cross acceptance, so planners are relying on a process that no longer exists. Here is a state planner’s explanation:

The Office of Smart Growth has been working with communities [in the plan endorsement process] to craft land use ordinances that include strategies to reduce vulnerabilities to flooding and extreme tidal flux. [Note: this is exactly what took out the bridge & pipeline in Middletown]. Specifically they are trying to reduce the amount of impervious surface along the coasts, protect wetlands and wetland buffers, and restore coastal sand dunes. Land is targeted for protection or restoration through low-resolution shape file analysis and with local guidance and suggestions. Although these measures are not explicitly labeled as climate change adaptation, these strategies will enhance the region’s resilience.

So, I then checked with DEP, the agency in charge of adaptation planning under NJ’s Global Warming Response Act.

According to a review of the NJ DEP Office of Sustainability and Green Energy, DEP has abdicated state responsibility, delegated to the local level, and outsourced adaptation planning to a corporate dominated group called “Sustainable NJ” (e.g. check their website for membership and video promotion of NJ Natural Gas).

DEP says this:

Adaptation

Despite our best efforts to reduce the greenhouse gas emissions that cause climate change, there will be permanent public health, ecological and economic impacts in New Jersey from those emissions already in the atmosphere. Scientists predict that in the coming years New Jersey will experience higher temperatures during the summer months that will result in an increase of heat-related illnesses, as well as poor air quality and short-term droughts; and more intense rain events, leaving residents susceptible to high flooding.  These intense rain events will also worsen the impacts of rising sea level in New Jersey’s coastal and bayshore communities. …[Note: this is exactly why damaged the bridge and pipeline that collapsed. DEP also forgot to mention that record heat increases water demand.]

In particular, local governments, as the agents on the “front lines” during natural disasters, and as those with influence over planning and zoning decisions, need to be aware of their vulnerabilities and risks, as well as what actions they can take and where they need additional support.  The Department has partnered with Sustainable Jersey to form a Climate Adaptation Task Force (CATF), which is working to determine how best to support local efforts to become resilient in the face of changing climate.  The CATF released two educational tools to help local governments understand what climate adaptation is and how it will effect them.  One tool is a glossary of climate-related terminology.  The other tool is a New Jersey-specific climate trends and projections document. The CATF is now working to develop other risk assessment tools to support local government adaptive thinking.  For more information on the CATF, visit Sustainable Jersey’s website.

So, how does DEP expect local governments to become aware of risks and vulnerabilities?

Via “Sustanable Jersey’s website you idiot!!

So, I then wandered over to check out the Sustainable Jersey website to review the content of  their climate change risk assessment, municipal educational tools, and adaptation planning materials looked like. Here’s what I found:

• There is no risk assessment. None at all. Strike one.

• The “municipal tool” link went to a webpage that listed numerous BPU programs (16 in fact!). Although BPU regulates private water companies like NJ American Water (the company that was negligent in the Middletown pipe collapse) and BPU oversees and directs infrastructure maintenance and investment programs, there was nothing – nothing at all – about climate change adaptation, risk assessment, or infrastructure impacts and preventive or adaptive maintenance. Strike two.

• If one could  navigate the Sustaianable NJ website, the adaptation planning material on the website led me to “Sustainable Jersey’s” certification checklist and a specific certification application submitted by Middeltown Township. 

So, I then examined the certification content requirements, and found that the “Sustainable Jersey” municipal certification checklist has nothing explicit about “climate change adaptation” and neither did the “Greenhouse gas” requirements. Nothing.

However, if one scrolled down the checklist and really drilled down and clicked on the “Climate Action Plan“, one came across this one paltry and vague sentence:

A CAP includes actions to address climate change at these two different levels. Municipal actions will target improving efficiency in municipally managed facilities, infrastructure, operations, and services. Community actions will require joint efforts of the public and private sectors, and include policy changes that will affect the lives of residents and local private businesses. 

First of all, the infrastructure planning is limited to “municipally managed facilities”, thus eliminating the failed bridge and pipeline that caused the problem.

Second, Middletown has not even submitted a plan. No action – No Plan.

Strike Three!

How could it get any worse?

[Update – I also checked out the governing local  document –  the most recent version (2009) of the Middletown Master Plan – It is silent and says nothing about “Sustainable development”.

Similarly, the Master Plan’s Utility Plan map only shows sewer infrastructure, not water supply. As the Master Plan Utility Service Element states (@ p. 36), it does not even consider water supply infrastructure:

The Utility Service Plan Element addresses stormwater management, drainage and flood control facilities, sewerage and waste treatment, and water supply and distribution facilities.

What the hell kind of local sustainable development program is that?

I will next try to document BPU regulations and policies regarding infrastructure maintenance and financing and whether those programs include climate change adaptation planning. My sense is that they do not require it and probably don’t even mention it.

BPU has programs that look relevant – Reliability and Security

The Division of Reliability and Security is responsible for implementing ongoing strategies for utility disaster preparedness, reliability and infrastructure security in conjunction with the State’s domestic preparedness and security efforts. The Division manages BPU’s response to disasters, emergency or major disruptions by the comprehensive coordination of utility remediation and recovery actions. The Division also manages two major infrastructure Safety Programs: Underground Facilities Protection Act and Pipeline Safety Program.

Here’s from BPU website on water infrastructure:

Division of Water

The Division of Water oversees the regulation of approximately 45 investor owned water and wastewater utilities.  The Division mainly deals with issues such as: establishing rates for utility service; assessing water and wastewater infrastructure needs; prudency issues and related costs; ensuring a safe and reliable water supply; growth impacts on water and wastewater costs and availability; sustainability of future growth; water reuse; depletion of aquifers; service interruptions; terms and conditions of water and wastewater service and management contracts; and conservation initiatives.

The Division also deals with identifying and evaluating initiatives, programs and best practices and efforts to improve the efficient use of potable water; evaluating and analyzing conservation tariff structures and the feasibility of implementation; system integration that reduces costs and provides for increased customer benefits; and reviewing the utilities’ long-term construction plans for capital expenditure

Here is NJ American’s tariff. Cursory review suggests that these terms are relevant:

EMERGENCY RESPONSES DUE TO EXTRAORDINARY DEMAND AND/OR DIMINISHED SUPPLY (Continued)

4. 4-  The Company will endeavor to provide a regular and uninterrupted supply of water through its facilities. However, if because of emergencies beyond the control of the Company, including governmental mandate, service is interrupted, irregular, defective or fails, the Company will not be liable for damages or inconvenience resulting there from. In the event of an extraordinary demand and/or diminished supply, or when operational issues make such actions desirable, including, among other things, protecting the integrity of the system and permit conditions, the Company may restrict the use of water whenever the public welfare may require it and, if necessary, may shut off the water in its mains and pipes. In such cases the Company shall advise its customers by placing a prominent advertisement detailing the conditions and restrictions in a newspaper of general circulation in the utility service area. The notice will state the purpose and probable duration of the restriction or discontinuance. Failure to provide regular and uninterrupted service due to breakdowns is covered under other sections of this tariff.
5. 5-  The Company may restrict water service during certain periods, where the Company advises the Board of Public Utilities, in order to protect the public water supply, or otherwise to comply with any regulations, orders or decrees issued by the Governor of New Jersey or the Department of Environmental Protection, or any successor agency or department pursuant to the Water Supply Management Act, or other statutes or regulations of the state or federal government. Such interruptions or restrictions shall be reported to the Department of Environmental Protection, if necessary, and the Board by each utility by the speediest means of communications available, followed by a detailed written report, pursuant to the provisions of N.J.A.C. 14:3-3.7(e) et seq., within one week. Thereafter the utility shall provide weekly reports for the duration of the emergency.

GENERAL RULES

1. Company will endeavor to provide a regular and uninterrupted supply of water through its facilities. However, if service shall be interrupted, irregular, or defective, or fail because of breakdown or emergency, the Company will not be liable for damage, inconvenience or lost income resulting there from.

Here are NJ American’s duty and representations:

As the surviving entity of the Merger, New Jersey American will continue to provide safe, adequate and reliable, high-quality service consistent with its corporate history, in fulfillment of its obligations under New Jersey law, and subject to the continued jurisdiction of the Board. 

Ah, but don’t worry – so what if there is no funding, no planning, and no regulation by the State Agencies with jurisdiction.

“Sustainable Jersey” has a Task Force that includes DEP and the State Climatolgist! So, you’re in good hands with All State! (hahaahah!)

[Update: You find some amazing stuff on DEP’s website – where Sustainable NJ listed as a “Business Association” and “Sustainable Business” contact, along with such environmental champions asNJ Business and Industry Assc., NJ Chamber of Commerce, and the Chemistry Council of NJ. As I indicated, this shows how Sustainable NJ is working in partnership with the Christie Administration.]

World Water Day NJ American Water protest (3/22/11)

Jails, Water Supply, Toxic Site Cleanup, & Forests – Privatization a Failure

Three major ongoing scandals in NJ share a common root: privatization of essential public responsibilities and functions to protect public health and safety.

These cases illustrate not only isolated political scandal and corruption, but massive and systemic policy failures.

They show how the pursuit of corporate profits conflicts with the public interest and how political connections corrupt so called “market competition” and invite abuse.

In a functioning democracy, each scandal – individually – is of such a magnitude to trigger widespread public outrage, investigative reporting, and oversight hearings with witnesses subpoenaed and sworn before the rolling cameras – followed by the perp walk.

But, don’t count on any of that or any intrepid journalist connecting the dots and exposing the shared ideological and policy roots of these clearly related scandals.

So, we briefly attempt to begin that work here today.

1. Privatization of Prisons – Crony Capitalism Kills

The NY Times’s remarkable investigative journalism 3 part series: Unlocked: Inside New Jersey’s Halfway Houses” strikes several devastating blows.

A private company, with personal political ties to Governor Christie, got paid 22% more money for providing 11% less service, all while thousands of prisoners escape, and one kills a woman.

The latter has been called “Chris Christie’s Willie Horton Problem”

The Governor, in a blatant and transparent coverup, then vetoes attempts by legislators to uncover the facts.

But read the full NY Times series, for all the ugly details.

• Part I – Porous and Chaotic: As Escapees Stream Out, a Penal Business Thrives

A company with deep ties to Gov. Chris Christie dominates New Jersey’s system of large halfway houses. There has been little state oversight, despite widespread problems, The New York Times found.

• Part II – “No Real Security”: At a Halfway House, Bedlam Reigns

The Bo Robinson center in New Jersey is as large as a prison and is intended to help inmates re-enter society. But The New York Times found that drugs, gangs and sexual abuse are rife behind its walls.

• Part III – Freedom Unit: A Volaitle Mix Fuels a Murder

As financial pressures grow, officials are using vast halfway houses as dumping grounds, The New York Times found. At Delaney Hall in Newark, low-level offenders are thrown together with violent ones. 

Obviously, protecting community safety from convicted criminals is an essential government responsibility – but it has been privatized.

2. Privatization of Toxic Site Cleanup – Murder in Slow Motion

Jeff Pillets of the Bergen Record disclosed that Christie’s Economic Development Authority (EDA) rubber stamped a $335,000 GRANT to an ex-convict with Mafia ties for the cleanup of a toxic site he himself had created, which threatened the drinking water well field of Mahwah, NJ.

(see: Toxic Cleanup Grant To Convict Fiasco Opens A Can of Worms

But the real story is not  limited to the absurdity of giving taxpayer dollars to an ex-con for cleanup of a toxic mess he himself made.

No, the story again exposes a deeply broken DEP cleanup program – and worse, now that failed program has been privatized instead of fixed.

Now, private consultants to corporate polluters (and ex-cons) make life and death decisions that impact the safety of your water supply.

Obviously, protecting the purity of the public water supply is an essential government responsibility – it too has been privatized.

I call it murder in slow motion, as cancer and other diseases associated with drinking polluted water take years to manifest themselves.

3. Privatization of Drinking Water – Failure to Maintain Infrastructure

The Star Ledger reports that a major water supply pipeline broke on Friday, causing havoc in Monmouth county, triggering severe water restrictions during a prolonged heatwave.

(see: Monmouth Water Emergency Illustrates Climate Change Risks and Reveals Deficits in NJ’s Adaptation Planning

NJ has a huge $8 billion unfunded water supply infrastructure deficit.

There is evidence that the pipeline broke due to damage it incurred many months ago during Hurricane Irene.

The private water company responsible for the disaster, NJ American Water Company, apparently failed to maintain and repair critical infrastructure.

NJ American – like all corporations – prefers to channel revenues into short term shareholder profits, instead of invest it in long term infrastructure integrity.

Obviously, safe and plentiful clean drinking water is vital for life and therefore is an essential government function.

But it too has been privatized, and we are just beginning to reap the whirlwind.

4. Privatization of Forests – Clearcuts on the Way?

And, despite this abysmal track record of privatization of essential government functions, legislation is pending that would essentially privatize Nj State Forests and put them in the hands of commercial loggers.

(see: Clearcut of Forest in Mass. Should Doom Pending NJ Legislation)

Where is The Lorax?