WolfeNotes.com

"Free Bird"? - view of southern Manhattan from Liberty State Park, NJ

(above photo originally posted in “Birds Eye View – Liberty State Park” – March 1, 2008)

“Keep, ancient lands, your storied pomp!” cries she
With silent lips. “Give me your tired, your poor,
Your huddled masses yearning to breathe free,
The wretched refuse of your teeming shore.
Send these, the homeless, tempest-tost to me,
I lift my lamp beside the golden door!”  

~~~ The New Colossus

I’m no longer shocked by the DEP press releases I get  – although yesterday’s celebration of a new “Margaritaville” development in Atlantic City was a doosey.  What the hell were they thinking? Welcome to the Christie/Martin DEP, where they really do literally promote economic development.

But today I want to go back to last week’s DEP press release, touting the opening of “Picnic Pavilions” at Liberty State Park.

DEP described the Pavilions as “eco-friendly amenities with dramatic views of the Statue of Liberty and the New York City skyline” that “mark the Christie Administration’s commitment to make State Parks more Sustainable”. (“Keep, ancient lands, your storied pomp!”)

Aside from exposing the Administration’s conception of the “sustainability” of public parks as narrowly limited to cash flows, the press release forgot to mention the shiny new $125 – $175 fees (I lift my lamp beside the golden door!)

My guess is that there are many Jersey City and nearby families that can’t afford to shell out $175 for a family picnic. I know I can’t – can you? (Give me your tired, your poor, Your huddled masses yearning to breathe free …)

And the Pavilions are dedicated, restrictive, exclusive spaces that are carved out of and set aside from the rest of the State park. They are closed to the non-fee paying public when not in use by private groups who now pay fees. (Your huddled masses yearning to breathe free, The wretched refuse of your teeming shore …)

(and what ever became of those full market based fees DEP was directed by Legislation to collect on corporations using public lands to generate multimillion dollar profits from oil and gas pipelines and electric power lines?  (Send these, the homeless, tempest-tost to me …)

The new exclusive Pavilions and those new $175 fees reminded me that it just so happens that DEP Commissioner Robert Martin has the same initials – RM – of another far more notorious and towering historic figure in public parks in the region: yes, RM – Robert Moses, aka “The Power Broker”.

That recognition of parallels – historical echoes? – prompted a revisit to Robert Caro’s classic biography of Moses, particularly to recall how Moses used park financing and fees (and many other intolerable tactics) to keep blacks and poor people out of his parks. In this infamous passage, Caro tells us Moses did ugly stuff like this:

[NY State Governor Franklin Delano] Roosevelt wouldn’t interfere even when he found out Moses was discouraging Negroes (sic) from using many of his state parks.

Underlying Moses’ strikingly strict policies for cleanliness in his parks was, Frances Perkins realized with “shock”, deep distaste for the public that was using them. “He doesn’t love the people” she was to say. “It used to shock me, because he was doing all those things for the welfare of the people, … He’d denounce the common people terribly. To him they were lousy, dirty people, throwing bottles all over Jones Beach….. He  loved the public, but not as people.”  […]  Now he began taking measures to limit the use of his parks. He had restricted the use of state parks by poor and lower middle class families in the first place, by limiting access to the parks by rapid transit; he had vetoed the Long Island Rail Road’s proposed construction of a branch spur to Jones Beach for this reason. Now he began to limit access by buses; he instructed Shapiro to build the bridges across his new parkways low – too low for buses to pass. Bus trips therefore had to be made on local roads, making the trip discouraging long and arduous. For Negroes, whom he considered inherently “dirty”, there were further measures. Buses needed permits to enter state parks; buses chartered by Negro groups found it very difficult to obtain permits, particularly to Moses’ beloved Jones Beach; most were shunted to parks many miles further out on Long Island. And even in these parks, buses carrying Negro groups were shunted to the furthest reaches of the parking areas. And Negroes were discouraged from using “white” beach areas – the best beaches by a system Shapiro calls “flagging”; …. Moses was convinced that Negroes did not like cold water; the temperature at the pool at Jones Beach was deliberately icy to keep Negroes out. When Negro civic groups from the hot New York City slums began to complain about this treatment, Roosevelt ordered an investigation and an aid confirmed that “Bob Moses is seeking to discourage large Negro parties from picnicking at Jones Beach, attempting to divert them to some other of the state parks.” Roosevelt gingerly raised the matter with Moses, who denied the charge violently – and the Governor never raised the matter again. (Caro @ p. 242-243)

Shades of history repeating? (and don’t forget those new DEP public access rules)

Read the important documents below, from our friends at PEER

NO FREE LUNCH AT LIBERTY PARK PAVILIONS
New Jersey Will Charge Up to $225 for Sheltered Picnic Areas with Iconic Views
     

Trenton — In opening a new facet of what it called the “jewel in the New Jersey State Park system,” the state is lowballing that it will charge families between $125 and $225 to picnic in the only sheltered areas in Liberty State Park.  Although the picnic pavilions were built almost entirely with taxpayer funds, the stiff fees are part of Governor Chris Christie’s “Sustainable Parks Plan.”

Last week, the state unveiled its new picnic area featuring dramatic views of the Statue of Liberty and the New York City skyline inside Liberty State Park.  The two new pavilions, called the Freedom Field Picnic Pavilions, have a total capacity of around 200 visitors and are the only sheltered picnic areas in the park.

The structures cost $1.8 million financed by tax funds, public grants and donations.  Each pavilion has lights, outlets and charcoal grills.  They share one “eco-friendly” restroom facility “with translucent walls providing natural light, waterless urinals, low-water use toilets and electric hand dryers instead of paper towel dispensers,” according to the Department of Environmental Protection (DEP) press release.

While the DEP press release mentions that an “affordable day-use fee for each pavilion will be applied,” it does not specify the amount.  Neither does the park website.  An inquiry by PEER revealed that the day-use charge for New Jersey residents will be between $125 and $175 for the not-so-free Freedom Field Pavilions.  Out-of-staters would be charged between $175 and $225.

“These high fees price a picnic in the park beyond the reach of many New Jersey families,” stated New Jersey PEER Director Bill Wolfe, noting that the Christie “Sustainable Parks Plan” seeks to transform state parks from amenities into profit centers. “Restricting use of public parks facilities to the exclusive reserved use of paying ‘customers’ harkens back to the Gilded Age – the concept is anathema to the notion of a public park.”

In contrast to steep fees imposed on picnickers, DEP is still not collecting fair market value on hundreds of corporate leases, easements and concessions on state parklands, thus forfeiting millions of dollars.  In an August 2011 report, the state pledged to do better but still has not modified flawed regulations or sweetheart easements and lease contracts to reflect fair market value.

“While saying parks should be run like a business, the Christie folks neglect the most basic business principles, such as charging fair rents and then remembering to collect them.” Wolfe added, noting that higher user fees at places like Liberty Pavilions are a highly regressive and inefficient way to raise park revenues.  “The Christie Sustainable Parks Plan should be called the Corporate Subsidy Parks Plan.”

###

Read the DEP press release announcing the new pavilions

Look at the park website which does not mention fees

See discounts given to corporate users of park facilities

Look at state report of principles but no action

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

EPA Puts Politics Above Risks To Human Health and Environment

EPA Rejects Residents’ Superfund Request in Advance of RCRA Permit

Over 1,000 sites were listed on the NPL before State concurrence policy began in 1995. EPA does NOT need Governor Christie’s permission to its the Dupont site

Disgusted by exclusion from cleanup decisions, lax oversight by NJ DEP, and the slow pace of cleanup, residents of Pompton Lakes have waged a campaign to pressure EPA to list the Dupont site as a Superfund site. More than 10,000 people have signed a petition in support of their efforts.

The campaign began when residents learned that the Dupont site scored an extraordinarily high 70 on the EPA’s Hazard Ranking Score (HRS) conducted by EPA back in 1982, a fact that EPA publicly denied and was withheld from residents for over 2 decades.

And the site was scored 70 WITHOUT considering indoor toxic vapor intrusion risks at over 450 homes.

A site qualifies for Superfund if the HRS exceeds 28.5 – so Dupont clearly qualified for Superfund listing a long time ago (Technically, it is important to note that the 1982 HRS was conducted before the 1988 NJ DEP ACO and current RCRA Corrective Action oversight began, so there was no excuse not to list the site long ago).

Residents have received support of Congressman Pascrell and Senator Menendez – Menendez wrote a strong letter demanding an EPA explanation of why they have not listed the site on Superfund given this HRS score. (see the wonderful press Menendez received for his efforts:  Superfund designation sought for Pompton Lakes pollution sites

For over 2 years, EPA has merely listened respectfully but not taken any action to list the site in lieu of relying on the RCRA program to manage the cleanup in partnership with NJDEP.

On August 7, 2012, this petition recently was delivered to Gov. Christie to seek his support.

In the latest move, residents had a meeting with EPA Regional Adminsitrator Enck on August 22, 2012.

For over 2 years now, since residents initiated this Superfund listing request of EPA, Enck repeatedly has said she would not list the Dupont site on Superfund “at this time”.

The “at this time” phrase has left the door open, raised expectations, and encouraged residents to spend time and energy in hopes of changing Enck’s mind.

EPA officials explicitly reaffirmed this “at this time” policy as recently as the August 1, 2012 RCRA presentation, where I asked them specifically about that.

Well, apparently, Enck’s mind is now made up – and it likely has been made up from day one.

If Enck is unwilling to fight internal EPA politics and Governor Christie, that is not a good indicator that she will be willing to take on Dupont and mandate a complete cleanup  in the upcoming final RCRA permit regarding the cleanup of the Lake (Acid Brook Delta).

The August 22, 2012 meeting notes indicate that EPA RA Enck said the following:

Ms. Enck responded with the fact that a Superfund designation has never happened in history without a Governor’s request. She also explained that some lawyers think it is possible to do this without the Governor’s request BUT she is not willing to be the first to do it. Going to war with the state over a Superfund designation is not going to get us results or cooperation. It has never been done before in the whole country.

[see graph above – more that 1,000 Superfund sites were listed before EPA “state concurrence” policy was adopted in 1995. Enck is wrong on facts and law.]

Ms. Enck’s EPA statement has now made it absolutely clear that EPA is putting politics before risks.

Enck’s comments prompted my letter below to her to clarify the issues that are so misleadingly summarized in that excerpt:

Dear Regional Administrator Enck –  I just received notes of your August 22 meeting with Pompton Lakes residents.

I would like to focus on point #4, which characterizes your response. If this summary is accurate, you must know that your comments were deeply misleading and the epitome of a lack of EPA leadership. Three quick points and a concluding observation:

1. At the outset, there is fundamental distinction between EPA initiating an NPL concurrence request to the Governor (which is how I read EPA policy), versus waiting for a State to take the initiative and ask EPA to list a site. The latter appears to be your policy approach in Pompton Lakes. The Governor of NJ would be hard pressed to publicly state a rationale for rejecting EPA’s request to list Dupont.

Have you written that letter to NJ Gov. Christie?

2. The “federalism” policy under Superfund (which is what you rely on and is now called State concurrence) originated in FY 1995 budget riders during the Gingrich 104th Congress and President Clinton’s political concession response in Executive Order 13132 (and yes, I still have my copy of Al Gore’s Report on “Reinventing Government“).

a. Congress has not attached similar budget language since FY 1996 (see below)

b. EPA has found that EO 13132 does NOT apply to NPL listing decisions (see below). 

c . Applicable EPA regulations (NCP – 40 CFR 300.425) vest the final NPL listing decision firmly and exclusively within EPA discretion and clearly emphasize risk as the primary basis for the exercise of discretion.

Those rules not only do not require state concurrence, they say NOTHING about that. The role of State’s in NPL listing is clearly circumscribed by the provision to allow exclusive NPL listing discretion (no HRS required) request role to a single site. While the rules put EPA in charge and are silent on a State role in listing, they do very clearly require state role on delisting. (see rule text)

Have you written a policy memo with recommendations to EPA HQ that lays out this legal and policy landscape, backed up with recent HRS scores for Dupont site?? 

I have praised you repeatedly, not based on personal knowledge of you or your work, but simply your affiliation with Eliot Spitzer.

Were Spitzer EPA RA, he surely would not unilaterally surrender to and be bound by the flawed political policy you defend. 

He would have gone to the matt with EPA HQ and he would have put NJ Gov. Christie in a box on this.

And, after having lost that battle, he would have been honest with the people who got screwed.

This is the kind of pushback you would have received had I been at that meeting.

Bill Wolfe

Sources:

Point #1

Point #2

Fed Reg./ Vol 77 No. 51/ March 15, 2012 (@ 15277)

“Executive Order 13132, entitled ‘‘Federalism’’ (see: 64 FR 43255, August 10, 1999), requires the EPA to develop an accountable process to ensure ‘‘meaningful and timely input by state and local officials in the development of regulatory policies that have federalism implications.’’ ‘‘Policies that have federalism implications’’ are defined in the Executive Order to include regulations that have ‘‘substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.’

This final rule does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, because it does not contain any requirements applicable to states or other levels of government. Thus, the requirements of the Executive Order do not apply to this final rule.

The EPA believes, however, that this final rule may be of significant interest to state governments. In the spirit of Executive Order 13132, and consistent with the EPA policy to promote communications between the EPA and state and local governments, the EPA therefore consulted with state officials and/or representatives of state governments early in the process of developing the rule to permit them to have meaningful and timely input into its development. All sites included in this final rule were referred to the EPA by states for listing. For all sites in this rule, the EPA received letters of support either from the Governor or a state official who was delegated the authority by the Governor to speak on their behalf regarding NPL listing decisions. 

Point #3 

Superfund: Overview and Selected Issues

“The decision to list a site on the NPL is ultimately at EPA’s discretion.” ~~~ link to Report & citation below – 40 CFR Part 300

Relevant excerpt

Farm, West Amwell NJ

[Update – Hunterdon Country Democrat story: Residents take concerns over West Awwell farm’s odors to DEP

Residents Bill Wolfe, Jennifer Andreoli, Wayne Boan and Cathy Urbanski, arguing that the sludge is not used properly, place the blame on Johanna Foods for the Fulpers’ alleged permit violations, according to the petition.

The residents, who complain of noxious odors, contend that the Fulpers have not complied with the permit’s conditions and that the material runs off into streams and percolates into the ground water, possibly polluting well water used by residents.

Wolfe said he first noticed the smell three years ago, but was prompted to take action after the odor became increasingly worse.

“I felt that if other people were as disgusted by it as me, maybe there’s enough support to stop this,” he said, adding that residents began to contact him after he wrote a blog post.

Wolfe, who has lived in the township for 17 years, said the issue has nothing to do with farming.

“I like agriculture smells. I like animals. I like farms,” he said, adding that he has cows and horses on either side of his property. “This doesn’t smell like manure. … This is industrial sludge that stinks. The last couple times, it’s been egregious.”

And once again, the DEP Press Office reflexively spins in favor of polluters not residents:

The petition alleges that the sludge has to be tilled into the soil within 48 hours, but DEP spokesman Larry Hajna said the agency and the Department of Agriculture has looked into Fulper Farms more closely and has found that the farmer has complied with the permit.

“As long as the farmer is meeting the condition of the permit, he has that right to farm,” Hajna said.

Contrary to what Larry Rangonese of the DEP press office says, the petition we filed will force DEP lawyers to state on the record the legal reality that the NJ Right-To-Farm law does NOT trump the federal Clean Water Act, NJ state environmental laws, or public health or nuisance laws.

The petition illustrates specific examples of HUGE loopholes in the permit – so even if Fulper is in compliance with the permit (which he is NOT), the petition will force DEP to address these concerns.

We are not talking about minor issues: the DEP permit doe NOT consider potential impacts on drinking water wells, groundwater, or surface water. These are HUGE loopholes.  

In addition to the gaping loopholes of the permit, Fulper routinely violates 3 requirements of the permit: 1) he stores the sludge for more than 48 hours before applying it: 2) he does not till the soil within 48 hours of applying it; and 3) he creates “malodors”.    end update]

Residents Petition DEP To Revoke Johanna Sludge Disposal Permit For Local Farms

Extreme Odors and Threats to Water Resources Are Cited

“Right–to Farm” is Not a Right To Pollute

For Immediate release: Thursday September 6, 2012

Contact: Bill Wolfe (609) 397-4861

West Amwell, NJ – Township residents today filed a petition with the NJ Department of Environmental Protection (DEP) demanding that DEP revoke the Johanna Farms sludge residual land application General Permit (GP). The petition was filed under DEP regulations, which provide specific grounds to revoke a GP.

Residents argue that the GP should be revoked because: 1) it has been repeatedly violated in West Amwell, 2) the GP does not provide monitoring or standards to control severe odors and threats to high quality local streams and drinking water wells; and 3) Johanna’s industrial sludge is not equivalent to a commercial fertilizer, produces severe odors, and is inherently not suitable for land application on farms located near homes.

“We’ve had enough. Johanna can not hide an industrial operation behind NJ’s Right To Farm law. DEP must enforce clean air and water laws to protect residents and water quality, not polluters” said West Amwell resident Bill Wolfe

Under the terms of the DEP GP, Johanna Farms is authorized to apply sludge generated by the wastewater treatment process at the Flemington plant.  That Johanna plant’s wastewater treatment process has received numerous odor complaints from nearby residents and is under increasingly strict DEP enforcement scrutiny.

According to DEP, Johanna generates approximately one 20 cubic yards roll-off container  per day of this sludge. Most of the sludge is disposed of in Pennsylvania, but some is applied to NJ farms.

Under the DEP GP issued to Johanna, West Amwell farmer Robert Fulper is allowed to apply the industrial sludge to farms in West Amwell.

There have been numerous odors complaints for several years regarding Fulper’s sludge handling and disposal practices.

A DEP General Permit (GP) is statewide in nature and does not consider specific local environmental conditions in West Amwell or the specific characteristics of the Johanna Farms sludge.

West Amwell residents rely on groundwater for drinking water supply and are concerned that the land application of high nutrient bearing Johanna sludge may threaten their drinking water wells.

The Alexauken Creek is a high quality stream in West Amwell , classified by DEP as a “Category One” (C1) water. C1 streams are given special protections, including 300 foot wide buffers, to protected them from any degradation of existing water quality.

The DEP must review and issue a decision on the petition in a reasonable timeframe. Under DEP rules, DEP has 3 options: 1) they may revoke the GP entirely, or 2) revoke the GP and replace it is with a stricter site specific “individual permit”; or 3) deny the petition. The DEP decision constitutes “final agency action” that is appealable through the courts.

How DEP handles the petition could set statewide precedent, especially regarding odors, water resource impacts, general permits, and NJ’s Right-To-Farm law.

[The DEP petition is available upon request – no link yet.]

DEP Press Office Says DEP May Cut Even More Trees

More than a year after the tragic death of a camper, the northern portion of Bull's Island remains closed to the public

Ragonese can’t say how many trees will be removed. “Whether it’s 56 or 180 or 200 trees that will be removed, when it gets down to the final numbers, we’ll resort to those numbers,” he says. Of Bartlett’s July 2011 survey, he says: “That’s the initial report. It could be 130 trees.” (~~~ Philly Inquirer, 9/2/12)

[Update: 9/5/12 – I took a walk on the Island today and – as suspected – DEP is conducting the same Bartlett-like root collar assessment of the trees in the middle portion of the Island.

Scores of trees were marked with numbered blue dots, many had yellow tape wrapped around them, and lots had very recent soil excavation around the trunk of the tree to expose the roots.

I will file OPRA to get the documents – lets hope they are not thinking about cutting even more trees, but I suspect that they are.

DEP posted lots more “Park closed” signs, so the best way onto the Island is to stealth in  under the pedestrian bridge and up the shoreline.  end update ]

Karen Heller of the Philadelphia Inquirer had an excellent column on Bull’s Island that ran yesterday:  In clear-cutting plan, losing more than unsafe trees.

Heller spent a lot of time researching the story and she gets it. Her conclusion absolutely nailed it, as she notes that the entire Island could be lost to flooding and erosion:

DEP should be vigilant in removing trees that pose risk. But you don’t remove all mature vegetation, especially after tree experts recommended cutting 56, not more than 200. Why conduct a survey if authorities are going to ignore the experts’ findings?

To remove all the trees on Bull’s Island’s northern tip is to make it less of a park, a bird sanctuary, or a natural wonder. As multiple experts point out, and have argued to DEP, removing all those trees puts the park at serious risk, of sullying the Delaware River, of gradually making the place not much of an island at all.

Then, of course, all you would have is Bull.

Heller is referring to the July 2011 Report by Bartlett Tree Service (Bartlett is a company not known for landscape restoration or ecological expertise, but rather for cutting trees).

But I need to clarify a few important issues raised by the column, particularly the DEP Press Office’s latest statements, which not only dig in, but imply that DEP is considering clear cutting an even larger portion of the Island than the 5.22 acres targeted in the Bartlett Report.

First of all, the Bartlett report did identify and recommend cutting down 56 “high hazard trees” – this is something to be expected from a firm that specializes in cutting trees.

However, while, based only on visual observation, that Report did find that “a majority of trees pose a high to critical risk of failure”, it did not address or recommend clear-cutting.

Instead the Report recommended that the inherent risks of any unhealthy trees on the Island be more effectively managed by human access restrictions, not tree cutting:

“Traffic in this section should be limited to reduced or excluded…”

Second of all, the methodology of the Report is fatally flawed (no pun intended).

The Report based risks on two factors: 1) visual inspection of tree roots as an indicator of tree health and probability of falling (the probability of falling was NOT quantified); and 2) the presence of people or property in the “target zone” where a tree might fall.

However, since the Report was issued, DEP has permanently closed the campsites and plans to remove the rest rooms and playground area. Therefore, there are no people or property present in the area where a tree might fall and thus no risk.

The risk factors considered by Bartlett are no longer present and thus the recommendations in the Report are useless. 

There is no justification to cut ANY trees. None. Nada. Zip. Zilch. Zero.

Last, I am very concerned about DEP’s stated position in support of tree cutting; their attacks on critics (who the hell is Voldemort?); and a continued pattern of secrecy and failure to release any information to the public on their tree removal and restoration plans for the Island, a publicly owned State Park.

But even worse, despite huge public opposition, DEP seems to be digging in further and expanding the scope of the planned clear-cut.

Let me explain how:

The 88 acres of Bull’s Island can be thought of in three distinct sections: north, central, south.

The Bartlett Report only focused on and inventoried 180 trees in the northern tip of the Island, roughly 6 acres from the wing dam to the mouth of the D&R Canal.

The Report did NOT examine trees in the central portion of the Island, from the wing dam south to the picnic area behind the Park HQ building (to the pedestrian bridge).

The southern portion of the Island is already designated a “Natural Area”.

From Rangonese’s latest comments about the Bartlett Report being an “initial report”, it seems like there has been a subsequent Report and  the central portion of the Island also could be targeted for clearcut:

Ragonese can’t say how many trees will be removed. “Whether it’s 56 or 180 or 200 trees that will be removed, when it gets down to the final numbers, we’ll resort to those numbers,” he says. Of Bartlett’s July 2011 survey, he says: “That’s the initial report. It could be 130 trees.”

Stop the madness, please!

Hit this link to Sign the petition and then call DEP Commissioner Martin (@ 609-292-2885) and Governor Christie (609-292-6000) and tell them to abandon the clearcut and make Bull’s Island a Natural Area