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Barnegat Bay Suffering “Insidious Ecological Decline”

August 13th, 2012 No comments

State Must Limit Future Land Development and Reduce Current Pollution

Current DEP Standards Flawed and Gov. Plan “clearly not working” 

DEP Must “Seriously Ramp Things Up” and Adopt TMDL

Rutgers Professor Michael Kennish testifies at Lavallettte hearing

Rutgers Professor Michael Kennish delivered devastating testimony today to Legislators on the ecological health of Barnegat Bay and the adequacy of local and state responses to the longstanding problems. [Update: Here is Dr. Kennish’s testimony – a hearing transcript will take a week or so.]

[Here is Dr. Kennish’s most recent study: An Assessment of Nutrient Loading and Eutrophication in Barnegat Bay – Little Egg Harbor]

Kennish was blunt in his assessment.

The Bay is suffering an “insidious ecological decline” he compared to a human cancer.

What DEP and local officials are doing is “clearly not working”.

Confirming exactly what I’ve been saying for years, Kennish made it clear that DEP water quality standards and monitoring are seriously flawed and have “no scientific validity”.

I am on the road right now so will try to summarize his testimony (links and transcript will be posted later).

The cause of the ecological decline is well known – with certainty – to be nutrient pollution loadings caused by land use and development in the Bay’s watershed and along the shores.

According to Kennish, the Bay passed ecological tipping points –  the carrying capacity, or what regulators call “assimilative capacity” – in the 1980’s, when the population was about 370,000 people.

Today, population has soared to over 570,000, and more than 10% of the watershed land area is paved over by development. Numerous studies show that when “impervious surfaces” from development exceed 10%, impairment results.

Current local master plans and zoning and DEP approved sewer service areas will allow currently too high population, land development, and pollution loads to increase even further.

The status quo makes it impossible to achieve pollutant load reductions necessary to restore the health of the Bay and could lead to the Bay’s total collapse as a functioning ecosystem.

Kennish began by describing the process of eutrophication in shallow coastal lagoons, and why lack of “flushing” makes Barnegat Bay more vulnerable than other Bays, like the Delaware Bay.

He explained to legislators how excessive nutrient loadings (mostly nitrogen, which acts like plant fertilizer) cause explosive rate of growth of algae, which, in turn creates a cascade of negative effects throughout the ecosystem.

Critically, the foundational relationships in the ecosystem are destroyed – leading to potential collapse, a condition scientists refer to as “azootic”.

Kennish connected the dots to show how eutrophication is a direct threats to ecosystems, fish and shellfish, human health, and the real estate and tourism based economy of the region.

Importantly, Kennish highlighted a recent episode where decaying bacteria created localized emissions of highly toxic hydrogen sulfide gas, which sent nearby exposed neighbors to local hospitals with respiratory problems.

This is just one example of what are known as “harmful algal blooms” that could be devastating to not only people’s health, but billions of dollars of real estate on the Bay and a $3 billion annual tourism economy.

Kennish said that only 1 point of Governor Christie’s 10 point management plan even addressed the problem, the “Special Area Management Plan” (SAMP). But he criticized that effort as not serious, because there has been only 1 meeting on the SAMP and it appears to be going nowhere.

Similarly, Kennish indicated that there are over 2,700 storm water basins in the watershed, and that the Gov.’s pilot program only addresses 10 of them, less than 1/2 of 1% – “we must seriously ramp things up”.

Kennish went into detail to explain why the DEP’s current water quality standards and assessment methods were flawed. First, because they rely exclusively on one indicator, dissolved oxygen (DO).

DO monitoring is flawed for 2 reasons:

1) because DEP only samples once per day in too few locations, which fails to capture large swings in DO levels throughout the day. This gives extremely misleading results, and DEP has known this for over 15 years;

2) because DO fails to reflect ecosystem health, particularly for critical indicators like submerged aquatic vegetation, fish and shellfish populations, and ecological relationships.

In response to a question by Chairman Senator Smith about whether the Bay was “impaired” under the Clean Water Act and should be required to undergo a TMDL, Kennish emphasized – with 100% scientific certainty – that the entire Bay currently is impaired and has been impaired since the 1980’s.

Kennish was asked by Senator Bateman (R-Somersert) about the role of Oyster Creek.

Kennish responded by explaining that the power plant cooling water intakes act as a “predator” in the Bay, killing billions of aquatic organisms, eggs, and larvae.

He explained why the lack of a baseline characterization of the Bay’s ecology, fish and shellfish populations has made it impossible to draw any scientifically valid cause and effect relationships between the operation of the plant and the health of the Bay and fish and shellfish popualtions.

(That flaw is no accident – lack of baseline data makes it impossible to regulate impacts of the plant, just what the nuclear industry wants).

I will be writing more about the hearings, particularly the implications for EPA intervention to direct DEP to adopt a TMDL and reject DEP’s recent attempt to delist the Bay as impaired.

Barnegat Bay (Lavallette, NJ)

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Joint Legislative Environmental Committees To Hold Annual Shore Hearing on Monday

August 10th, 2012 1 comment

Serious Threats Remain Unaddressed

On Monday (August 13) the NJ Senate and Assembly Environment Committees hold their annual summer joint hearing focused on the shore (at 10 am in the  Lavallette First Aid Building, 1207 Bay Boulevard, Lavallette, NJ.)

The context for this year’s hearings is framed by another year of stinging jellyfish and growing threats of ecological collapse and harmful algae blooms in Barnegat Bay –

But far more serious problems lay buried beneath the radar.

Every now and then, a crisis provides a glimpse of the scope of those problems, which quickly fade in the 24 hour news cycle.

That is a radical departure from how things worked back in the day – like when rivers caught fire, politicians responded to public demands and passed the Clean Water Act.

For example, the recent Monmouth County water pipeline break was a perfect illustration of NJ’s multiple vulnerabilities to global warming – extreme weather, storm surge, sea level rise, coastal hazards, infrastructure, and climate change adaptation.

This week’s raw sewage discharge to the Hudson River from Tarrytown NY (my hometown) threatens the Iron Man competition – another high profile opportunity to focus on storm water management and combined see overflows“.

Over-fishing, habitat loss, and pollution kill fish - not fisheries management and protective catch limits.

And the Star Ledger  ran a page one story on the decline of NJ’s recreational fishing, boating, and marinas  – mistakenly attributing economic  woes to fisheries management and catch limits designed to protect over-fishing (at a time when the NJ fisheries management program is collapsing – and the Food and Drug Administration is threatening to shut down NJ’s commercial shellfishing market

But the joint Legislative Committees will not focus on any of this – instead, their hearing agenda is very narrowly crafted.

One scientist, Dr. Michael Kennish from Rutgers – will be allowed to testify on Barnegat Bay.

The remained of the day’s testimony will be on the “floatables” issue.

I objected to this narrow scope and have requested that legislators expand the hearing agenda – here is my note to the Committee Chairs, Senator Smith and Assemblywoman Spencer:

Dear Chairpersons:

Dr. Kennish is the leading expert on the science of the Bay and will make a wonderful witness – but he is not an expert on the DEP regulatory policies, standards and programs, including Clean Water Act provisions that apply.

Accordingly, the testimony is too narrowly crafted and the public should be provided opportunity to weigh in – at least with 5 minute statements if time is a consideration.

I also am disappointed by the narrow scope on related ecosystem issues.

In 2008 legislation, the Legislature created a “Coastal and Ocean Protection Council” and expanded DEP’s organic powers to include “ecosystem based management” (EBM) (see P.L. 2007, Chapter 288:

see also this ENS article:

Gov. Christie has zeroed the budget of that Council and done nothing too implement EBM in relevant DEP land use and water resource programs.

It seems that hearing agenda should be broadened to provide oversight of these issues, including major climate change related issues such as ocean acidification, sea level rise, shore vulnerability and coastal hazard assessment, climate change adaptation planning, fisheries management, and overall ecosystem health.

When state policymakers are silent on these critical issues, the public is left in the dark and vulnerable to manipulation and misinformation (see this weeks’s Star ledger page one story on fishery catch limits for one example).

We also released a major Report on the Delaware Bayshore that would be of relevance, see:

PROTECTING THE DELAWARE BAY ENVIRONMENT:

AN ANALYSIS OF EXISTING PROGRAMS
AND PROTECTIONS TO IDENTIFY OPPORTUNITIES FOR ECOSYSTEM BASED MANAGEMENT

The hearing’s narrow focus on floatables also ignores the far larger issue of “combined sewer overflows” (CSO), which are again in the news given the Hudson River discharge in NY that threatens this weekend’s IronMan competition.

I fear that largely cosmetic beach cleanup programs – and ineffective and partisan organizations – will use this narrow hearing agenda to promote the ineffective status quo and their own self interests (see: Of Monster Algae Blooms and Monstrous Lies)

Wolfe

Sunrise in Normandy Beach, NJ

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Appellate Court Strikes Down DEP “Natural Resource Damage” Restoration

August 9th, 2012 No comments

Millions in Public Compensation and Ecological Restoration In Jeopardy

State Comptroller Asked To Investigate DEP Mismanagement 

A Big Win for Dow Chemical

[Update – here is a relevant law article on the legal aspects of DEP’s land valuation methodology.]

We have been following the DEP’s “Natural Resource Damage” program for some time.

That program provides ecological restoration or financial compensation to the public for natural resource injuries suffered as a result of the discharge of toxic pollution at thousands of NJ sites. According to DEP:

Natural Resource Restoration

 

Restoration: is the remedial action that returns the natural resources to pre-discharge conditions. It includes the rehabilitation of injured resources, replacement, or acquisition of natural resources and their services, which were lost or impaired. Restoration also includes compensation for the natural resource services lost from the beginning of the injury through to the full recovery of the resource.

Examples are:

  • GROUND WATER: non-point source pollution abatement projects, acquisition of land for aquifer recharge
  • WETLANDS and HABITAT: rehabilitation or creation of wetlands / habitat in the appropriate ratios to compensate for the functions and services lost
  • INJURED SPECIES: restoration of appropriate habitat and monitoring of success / research projects
  • LOST PUBLIC USE: enhanced public access, information and interpretive centers

The business community has strongly opposed the DEP NRD program and it was targeted for rollback in Gov. Christie’s DEP Transition Report.

In a huge setback, the Courts just gave the business community what they asked for.

A recent NJ Appellate Court decision struck down DEP’s attempt to recover NRD at a contaminated site in South Brunswick.

[Note – the victorious polluter in the case is Essex Chemical, a wholly owned subsidiary of Dow Chemical, who was responsible for the cleanup, which is still not complete – that’s Dow, of Bhopal fame. See the NJ NRD lawsuit filed.]

The court rejected the DEP’s methodology for calculating economic values and ecological injuries and questioned DEP’s competence.

As such, the decision has broad implications and basically eviscerates the entire NRD program, letting polluters off the hook for millions of dollars in compensation and hundreds of site statewide.

The decision has broad ramifications and puts millions of dollars in NRD compensation and ecological restoration in jeopardy at thousands of contaminated sites across the state.

The tragedy is that this loss was completely avoidable simply by adopting regulations that set out the technical requirements and methodologies for the NRD program, as we previously warned.

Here is an excerpt of my letter today to State Comptroller Boxer:

The public’s economic and environmental interests’ in the NRD program are huge. In a June 29, 2007 press release, DEP announced the filing of 120 NRD lawsuits. The press release claimed:

“The state has filed approximately 120 lawsuits that could result in hundreds of millions of dollars in compensation from polluters who have harmed New Jersey’s natural resources, including numerous manufacturers and marketers of the gasoline additive MTBE, Department of Environmental Protection Commissioner Lisa P. Jackson announced today…

Attorney General Anne Milgram added: “We are working with DEP to ensure that contaminated properties are cleaned up and restored, and that, where appropriate, polluters compensate the residents of New Jersey for the loss of precious natural resources.” http://www.nj.gov/dep/newsrel/2007/07_0037.htm

The state’s lawsuits take a special focus on polluters that have damaged river resources. Lawsuits have been filed against ISP Environmental Services and G-I Holdings Inc., located in Linden along Piles Creek near the Arthur Kill; Mallinckrodt Baker, along the Delaware River in Phillipsburg, Warren County; Genstar Gypsum, located along the Delaware River in Camden, Camden County; and Rhone Poulenc along the Raritan River in Middlesex Borough.

Since its inception in 1994, DEP’s Natural Resource Damage program has recovered more than $51 million and preserved approximately 6,000 acres of open space as wildlife habitat and ground water recharge areas as compensation for pollution resulting from 1,500 contaminated sites and oil spills. However, realization of these important potential economic and environmental benefits for the people of New Jersey of the NRD program is in jeopardy, as outlined in a recent Appellate Court decision.

Read the case and all the relevant background material in links belwo, from our friends at PEER:

NEW JERSEY FUMBLING AWAY POLLUTION DAMAGES

Court Ruling Underlines State Futility in Assessing “Natural Resources Damages”

Trenton — The State of New Jersey is forfeiting hundreds of millions of dollars in damages from polluters in contaminated groundwater cases, according to Public Employees for Environmental Responsibility (PEER), which has asked for a review of the program by the state Comptroller. The state’s failure to adopt regulations governing how to calculate “natural resources damages” (NRD) for polluted drinking water has contributed to its inability sustain assessments against polluters.

The state’s most recent setback occurred in the case of New Jersey Department of Environmental Protection, et al. v. Essex Chemical Corporation in which the Appellate Division chastised DEP for failure to make a cogent claim for millions of gallons of groundwater contaminated during 8 years of leaking underground storage tanks. This latest rebuke follows earlier decisions striking down DEP recovery attempts due to not establishing, by regulation, a reliable formula for calculating natural resources damages. In the absence of regulation, courts have found DEP lacked adequate scientific support to proceed on a case-by-case basis, as in the Essex Chemical case.

The absence of a regulatory undergirding for NRD has been known as a serious vulnerability inside DEP for a decade. Even the Christie Transition Report on DEP in January 2010 recognized the problem:

“With respect to the State’s efforts to seek compensation for damages to natural resources (NRD), we recommend that…rules be adopted to provide transparency, certainty and consistency in the assessment of those damages.”

“This is a triple rip-off of taxpayers: First, the public gets stuck with the enormous bill for treatment of tainted groundwater, replacement lines and new wells. Second, the public pays for DEP to play endless rounds of fruitless enforcement tag with corporate polluters. Third, government lawyers waste years in losing litigation,” stated New Jersey PEER Director Bill Wolfe, noting that the Christie DEP also failed to follow through on regulations as urged in its Transition Report. “Is it any wonder that so much of New Jersey’s drinking water is contaminated?”

The state already missed the statute of limitations for pursuing natural resource recoveries in more than 4,600 contaminated sites prioritized by DEP. In 2007, as time was running out, the state filed 120 lawsuits seeking NRD assessments. Those lawsuits, however, appear to be foundering on the lack of regulation and focus. Prospects for any future litigation and ongoing NRD settlement negotiations in an unknown number of groundwater pollution cases also remain clouded.

“This mess was wholly preventable but even now the state is not taking the measures everyone agrees are needed,” Wolfe added. “It appears that we have utterly lost the capacity for enlightened environmental leadership in New Jersey.”

PEER is asking the Comptroller to review the performance of the NRD, determine the extent to which taxpayers are not attaining full NRD recoveries and make recommendations for putting the program back on track in a more transparent and accountable fashion.

###

Read the PEER call for a Comptroller review

Look at latest court decision striking down state NRD assessment

See past warnings ignored 

Examine high contamination rates in New Jersey’s groundwater

View Christie DEP transition report (NRD recommendation on page 15)

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


 

 

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Pompton Lakes Residents Urge Gov. Christie to Seek EPA Superfund Cleanup at Dupont Site

August 7th, 2012 14 comments

Gov. Immediately Rejects Request – Takes Cheap Shot at EPA, and Defends Failed DEP Cleanup

[Update: 8/8/12 – With no content review or consultation with Pompton Lakes residents, Gov. Christie Rejected the Citizen’s Superfund Petition.

In doing so, the Gov. Echoed the Talking Points of Pompton Lakes Puppets, see the Gov. clueless and ideological comments in this Bergen Record story:

Governor Christie weighed in Tuesday on DuPont’s pollution cleanup in Pompton Lakes, advising residents to “Be careful what you wish for” after they pleaded with his office to support having the contaminated areas designated as a federal Superfund site.

Christie said “appropriate progress” is being made in the cleanup of toxic chemicals under the supervision of Bob Martin, the state Department of Environmental Protection’s commissioner who has approved DuPont’s clean-up plans. The cleanup is in better hands locally than if the federal government were to take full control, Christie said.

Currently, the DEP shares supervision with the U.S. Environmental Protection Agency.

“I understand it never goes fast enough for the people who live there,” Christie said. “But if they really want to see something slow down, give it to the EPA and it will probably slow down pretty significantly.”

Local control is a slogan for masking republican deregulation and regulatory rollback.

Twenty eight (28) YEARS of cleanup inaction is not “appropriate progress”.

EPA’s own RCRA enforcement policy recommends that EPA take enforcement action and use Superfund tools to supplement RCRA permits at sites “stuck in RCRA corrective action” for 3 years – certainly 24 years warrants enforcement!

EPA now must Step Up and Enforce Cleanup Laws on Giant Polluter Dupont.

DEP is an unreliable partner and EPA can expect nothing but hostility from DEP Commissioner Martin and the Christie Front Office. – end update

Residents of Pompton Lakes – supported by Edison Wetlands Association, NJ PEER and Sierra Club –  converged on the State House today to present Gov. Christie with a petition – signed by more than 10,000 people – demanding that the cleanup of the Dupont site be designated a national priority by US EPA under the Superfund program.

EPA documents show that the Dupont site qualifies for the Superfund program based on risk, particularly considering that the poisoning of 450 homes is the largest “vapor intrusion” site in the country.

After 24 years of DEP failure to hold Dupont accountable for cleanup, the people are fed up and do not trust Dupont or DEP to protect their lives and homes.

Here’s their press release:

SUFFERING POMPTON LAKES RESIDENTS & ENVIROS

DELIVERED URGENT REQUEST TO GOVERNOR CHRISTIE 

Community members and environmental leaders hand delivered an emergency request at State House to Governor Christie to nominate Pompton Lakes DuPont Works site as a federal Superfund site 

A Box of Chocolates for Christie - Petitions endorsed by over 10,000 people

Trenton, New Jersey –  Community members from Pompton Lakes, New Jersey and several nonprofit environmental groups including Citizens for a Clean Pompton Lakes, Pompton Lakes Community Advisory Group, Edison Wetlands Association, and New Jersey Public Employees for Environmental Responsibility called on Governor Chris Christie to nominate the Pompton Lakes DuPont Works Site for the federal United States Environmental Protection Agency’s (USEPA) Superfund National Priorities List (NPL).  They hand-delivered their request letter along with a supporting petition that has garnered over 10,000 signatures to the Governor’s office.   The groups are called on Governor Christie to give complete control of the site to USEPA, which will give more authority to the government to control the cleanup and increased community engagement.   “This a historical landmark day as we venture to Trenton with an emergency request to Governor Chris Christie to nominate our community’s toxic legacy to be designated to the Superfund National Priority List. We believe that full federal control of the DuPont Works site will  bring true oversight, ensure that a goal will be set for a high standard residential cleanup, and finally bring our residents a “true voice” and real community participation,” said Citizens for A Clean Pompton Lakes Executive Director Lisa Riggiola. “Our health, quality-of-life and financial well-being has suffered catastrophically, and without this designation, future generations and our environment will continue to suffer.  The time is now for positive change to provide hope for a brighter future.”

The urgent request comes at a critical time when families in over 400 homes continue to breathe in toxic vapors that rise into their basements from contaminated groundwater, locals unknowingly fishing in the mercury and lead laden Pompton Lake, and residents living in fear everyday that they will become another cancer victim from the decades of poison in their community. …

Based on the human health risks from the DuPont site, it clearly qualifies as a national priority for the NPL. But USEPA’s Superfund listing policy calls on State Governor’s to either initiate listing via a request to EPA or to concur with EPA’s recommended listing.

“We call on Governor Christie to recommend to USEPA that the DuPont site be listed as a national priority,” stated New Jersey Public Employees for Environmental Responsibility Director Bill Wolfe. “This will secure additional federal resources and provide greater community involvement for Pompton Lakes residents poisoned by DuPont. Residents need to know government is on their side protecting them, not polluters.”

Christie immediately rejected the request – with virtually no consideration of the issue.

Defending the indefensible, Christie defended the DEP’s failed oversight of the Dupont cleanup – still not complete after 24 years and actually getting worse by poisoning people in their homes – while taking the opportunity for a typical Christie cheap shot at EPA. As reported by PolitickerNJ.com:

DEP taking appropriate steps with Pompton Lakes site, Christie says

TRENTON – In a wide-ranging press conference today, Gov. Chris Christie said he believes the state Department of Environmental Protection is taking the appropriate steps regarding a contaminated site at Pompton Lakes.

Earlier today, advocates presented a petition to the governor’s office urging him to support their call for placing the site on  the EPA Superfund list.

Christie, however, said that residents of Pompton Lakes should “be careful what you wish for,” adding that the EPA has been slow in remediating current sites throughout the state that have been declared Superfund sites.

“If they really want to see something slow down, hand it to the EPA,’’ he said.

 

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The Spirit of Occupy – People’s Space

August 6th, 2012 No comments

I found the below “communique” from Oakland interesting, particulary with respect to expressing important ideas about the meaning of public space, or “the commons”, and the role of the arts in community – acting “above and beyond the call of consumption“.

Try to get past what some may find offensive rhetoric and think about it:

Many accusations are currently circulating in the corporate media about events in Oakland last night. To provide clarity, we offer the following Communique, which was distributed by autonomous individuals during last night’s street party. Solidarity with our comrades in Oakland!

FUCK THE PERMITS
KEEP IT IN THE STREETS

Oakland’s Art Murmur is supposed to be about art, culture, and community. But all that it represents to the Uptown, Downtown and KONO business district associations as well as the city administration is an opportunity for commercial expansion and business development, a tool to further their agenda of gentrification.

In spite of this, recent months have seen Art Murmur explode with spontaneous energy, with the insurgent spirit of people’s free expression and free association. Rather than a controlled spectacle and disciplined promenade of compliant consumers, it has become a truly communal gathering, an epic block party, the night in Oakland when everyone is out and about in the streets. It is a people’s carnival of street artists, uncontracted musicians, unlicensed vendors, unauthorized performers, random revelers and rebel spirits of the community coming together simply to be together, to socialize and share public space, above & beyond the call of consumption.

When the Art Murmur Corporation took over the original permit from the Rock Paper Scissors Collective to manage the event, it was under the condition that community members be allowed to set up tables & use 23rd street free of charge & without permits. Now the city’s business elite are trying to enforce permit restrictions, sending us the message that our shared social & public space is not ours to use on our own terms. And they are bringing in private security forces to intimidate and coerce us into compliance—wielding the threat of violence and expensive fines.

We’re sick of getting pushed out of our own space. They say we should get permits, but the process is inaccessible, unaffordable, and there are never enough “officially sanctioned” spaces to go around anyway. Their intent is to target street artists and vendors as a means of regulating and controlling the community’s use of public space, for the benefit of expensive galleries, fancy restaurants and developers. The effect is to better provide the capital-owning business elite with a controlled and sterilized neighborhood full of passive armies of docile workers and obedient shoppers. Their ambition is to redraw urban geography according to profit motives, and convert public and social life into the plaything of private interests. This amounts to an attempt to rob us of every free and spontaneous aspect of our communities and our lives, and replace each of them with no alternative but submission and the compulsion to consume.

We refuse to surrender our space. We want to encourage the organic and rebellious elements of Art Murmur to flourish. We are here to exercise a vision of a liberated city full of free art, free music, free culture, free expression, and free streets.

We are spontaneous, insurgent, uncontrollable.
These are our streets, and we are here to take them.
FTP! FUCK THE PERMITS! FUCK THE POLICE!

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