WolfeNotes.com

DEP Says Hudson Oil Shipment Risks “Not On DEP Radar”

Neither DEP nor State Office of Emergency Management are aware of shipments of over 1 billion gallons of oil down the Hudson River

Trenton — The Christie administration has posted a sprawling post-Sandy Hazard Mitigation Plan that conflicts with its own announced projects, ignores known threats, and contains numerous flaws, according to Public Employees for Environmental Responsibility (PEER). PEER is calling for legislative hearings on the plan, which was required as a prerequisite for significant federal infrastructure aid but was prepared by a private consultant with no outside review.  PEER, 3/20/14

[Update: 4/5/14 – another example of where our neighbors in NY are involved and the Christie Administration is not:

Gov. Andrew M. Cuomo nevertheless directed state agencies in late January to review their emergency and spill response plans and report back to him by the end of April. The state’s top environmental and transportation officials met with their federal counterparts last week to discuss the issue.

But there remains considerable uncertainty about how authorities would respond to an accident or a spill in the Hudson River. The Coast Guard conducted a drill in New Windsor last November. The mock event involved the derailment of four train cars and a 50,000-gallon spill in the Hudson from a storage tank.

“We continue to look for ways to improve coordination and response with our federal and local partners and, as directed by Governor Cuomo in his recent executive order, are evaluating the state’s spill prevention, response and inspection program for rail, ship and barge transportation of crude oil and other petroleum products,” said Emily DeSantis, the Department of Environmental Conservation’s spokeswoman.   ~~~  NY Times 2/27/14 – end update].

Scott Fallon of the Bergen Record has an important story about risks of new shipments of crude oil down the Hudson River, see:

• Oil boom boosts flow along the Hudson, and fears of spill risk

Shockingly, DEP is quoted as saying that those risks are “not on DEP’s radar”:

“It hasn’t been put on our radar by anyone,” said Larry Ragonese, a spokesman for the Department of Environmental Protection. “We haven’t had any real input.”

That is shocking, because DEP regulates the NJ refineries that receive the oil shipments, and DEP has direct regulatory responsibility for those oil refineries and for protecting the Hudson River and surrounding NJ communities under numerous State environmental laws.

But, there is another place where those risks should be assessed and protective strategies put in place: The NJ Hazard Mitigation Plan.

That Plan has an entire Chapter 5.19 on risks from chemical and oil shipments, see: Risk Assessment – Hazardous Substances.

Here is what Chapter of the Plan says about oil shipments to NJ refineries – it says NOTHING about shipments down the Hudson River from North Dakota via Albany:

The cities of Linden and Elizabeth, located on New Jersey’s highly industrialized northeast coast, are home to Conoco Phillips’ Bayway Refinery (formerly owned by Exxon). The northernmost refinery on the east coast of the United States, Bayway processes 238,000 barrels (10 million gallons) of crude oil per day. The crude oil is brought in by tanker ships from the North Sea, Canada, and West Africa. Once processed, 145,000 barrels of gasoline and 110,000 barrels of distillates per day are transported to east coast customers via pipeline transport, barges, railcars, and tank trucks. In addition, a petrochemical plant produces lubricants and additives and a polypropylene plant produces over 775 million pounds per year of polypropylene (American Littoral Society 2013).

So neither DEP nor State Office of Emergency Management are aware of shipments of over 1 billion gallons of oil down the Hudson River?

Are you kidding me?

Or are they covering up that information?

NJ Assembly Speaker Prieto needs to get the Legislature involved immediately in oversight of the Christie Hazard Mitigation Plan, as we’ve called for.

Record story quotes Prieto supporting that:

After being informed by The Record about the shipments down the river, Assembly Speaker Vincent Prieto, D-Secaucus, last week called on Governor Christie to conduct a comprehensive review of the state’s readiness to handle spills and emergencies. “We’ve seen several recent examples of the damage that can be caused by oil spills,” said Prieto, whose district includes part of the riverfront. “Nobody wants to see that repeated along the Hudson.”

Here is the history of spills and accidents Prieto correctly refers to, ironically from the Christie Hazard Plan:

Despite documenting hundreds of chemical and oil spills, there Christie Plan downplays and rates those risks as “low”

Mantoloking Sea Wall a $40 Million Boondoggle That Will Worsen Erosion

Project Conflicts with Findings of Gov. Christie’s Own Hazard Plan

Mantoloking cut on barrier island – Rt 35 and bridge washed out by Sandy. Sea wall location

In order to illustrate the problem of why sea walls don’t work and are discouraged, I’ve tried a variety of tactics.

I’ve mocked Gov. Christie (as King Canute, trying to hold back the sea).

I’ve summarized the literature and outlined the policies of other state coastal management programs to explain, highlighted by a dramatic photo – see: Memo to Gov. Christie: Sea Walls and Engineering Don’t Work.

Like those other coastal states, sea walls used to be discouraged by NJ DEP’s coastal management program as well.

But all that changed when “customer service” Commissioner Bob Martin took over and Gov. Christie got “drunk on federal dollars coming in” (that’s a verbatim quote from legislative testimony of former DEP Commissioner Mark Mauriello, a coastal expert).

Engineered structures also are inconsistent with the recommendations of President Obama’s Sandy Rebuilding Task Force Report, the resiliency policy in new HUD regulations, and President Obama’s Executive Order on adaptation to climate change.

But you don’t have to take my word for it – or Mr. Mauriello’s.

Here is what Gov. Christie’s own Hazard Mitigation Plan says about sea walls – they don’t work and make erosion problems worse:

BL England Coal Plant and Pinelands Pipeline have links to NY Gov. Cuomo’s People

[Update below]

I’ve been closely following the $500 million BL England power plant and Pinelands pipeline controversy and knew that Rockland Capital (owner of BL England) was from New York State, but, because I focus on the Jersey side of the river,  I had no idea that the behind the scenes lobbying and political deals involved in the project were linked to powerful NY players.

Award winning investigative reporter Wayne Barrett connects those dots in a must read killer story today in the New York Daily News.

That story sheds new light on not only the BL England/Pinelands controversy, but other deep political connections that involve the Port Authority, David Samson, NY Gov. Cuomo, and Gov. Christie’s BFF Rudy Giuliani, see:

• Gov. Chris Christie’s polluting belch

But our backyard is, like Samson’s two-state Port Authority, overrun not only with Christie underbrush, but with connections to that other master of the multi-billion-dollar Authority, New York Gov. Andrew Cuomo. Rockland’s chairman is Michael Del Giudice. He oversaw Andrew Cuomo’s transition committee in 2010, just as Samson chaired Christie’s in 2009.

Del Giudice, the lead independent director at Con Ed, was chief-of-staff to Andrew’s father, former governor Mario Cuomo, and more recently, the elder Cuomo has been an investor in and chairman of a Del Giudice banking company. Rockland is run out of the same Carnegie Hall Tower office as a state scholarship fund that Andrew Cuomo named Del Giudice to lead. Rockland’s vice-chair is Jerry Crotty, who once was counsel and secretary to Mario Cuomo and is now the president of an investment firm that owns more of Rockland than any other investor.

When Rockland acquired the plant for a $12 million pittance in 2006, it promised DEP it would complete the mandated expensive, pollution-reducing retrofitting that prompted the prior owners to sell.

It also hired Tony Burgos as its lobbyist. Burgos is another former top Mario Cuomo assistant whose installation years ago as Port Authority vice-chair positioned him to become the connected bi-state lobbyist he is today. Burgos, Crotty and Del Giudice are major Andrew Cuomo donors and fundraisers, accounting for hundreds of thousands in contributions over the years (they do not give to Christie). There is no indication that the Cuomo administration has done anything to benefit Rockland, which does have New York operations.

Please read the whole story.

I’ve always wondered why NY Gov. Cuomo and the NY faction have been silent, as NJ Gov. Christie and his crony David Samson milked the Port Authority of billions of dollars for NJ projects, at the direct expense of Port projects in NY. Also see:

• How Christie’s Men Turned the Port Authority Into a Political Piggy Bank

Perhaps Cuomo and Christie have shared friends and/or shared interests – and perhaps some intrepid investigative reporters out there will begin looking into those connections.

[End Note: I am extremely pleased that Barrett got the BL England enforcement story right.

The NJ press corps has missed that or given the Christie DEP a pass on how they not only extended the compliance deadlines in prior DEP enforcement Orders, but shifted the focus from shut down or upgrade the pollution controls at the plant, to promoting repowering of the plant.

That was huge and is strong evidence of how in the tank the Christie DEP is.]

[Update – 3/31/14 – In another must read story, Mark Magyar of NJ Spotlight outlines the Christie & Cuomo scheme to destroy the Port Authority, see: 

• Breaking Up PA Would Solve Christie’s Transportation Trust Fund Problem

NJ Laws Encourage Rebuilding In Same Vulnerable Locations

Major Reason For NJ’s Nationally High Repetitive Flood Loss Damage Claims

Bill Ignores Right-to-Rebuild In Inland Flood Hazard Zones

Repetitive Loss Properties, by County – Source: NJ Hazard Mitigation Plan (March 2014)

The Problem:

New Jersey’s guaranteed right to rebuild following storm damage stands out as a highly unusual provision, according to a Huffington Post review of coastal laws in more than a dozen states on the Atlantic and the Gulf of Mexico.

North Carolina, for example, generally bars rebuilding in the same place after a structure is substantially damaged by a storm. Florida and Alabama typically require state reviews before approving the rebuilding of coastal structures damaged in major storms. Several other states, including South Carolina and Maine, require that property owners pull back from the ocean as much as possible following hurricane damage.

Experts describe New Jersey’s express right to rebuild as the single most significant impediment toward limiting the state’s vulnerability to future storms.

“The idea of putting it down on paper like that is strange, that’s not good,” said Orrin H. Pilkey, an emeritus professor of earth and ocean sciences at Duke University, who has probed the dangers of building near disappearing shorelines. “It gives you no flexibility. If people want to rebuild, they can.”  ~~~ Jersey Shore Development Failures Exposed By Hurricane Sandy

The Solution:

A bill (S62 – Barnes) that would rescind the so called “right to rebuild” storm damaged property in NJ’s Coastal Zone was approved by the Senate Environment Committee last week, with surprisingly little debate or opposition.

Republican Senator Thompson opposed the measure. He said it would create more bureaucracy and red tape and interfere with rebuilding.

The bill was supposed to be a companion to Senator Barnes far more ambitious bill (S64) to create a Coastal Commission. That bill would reduce the CAFRA review threshold from 24 units to just 3 residential units.

The Right-to-Rebuild bill’s effectiveness is severely limited as a stand alone measure, because it would apply to very few properties.

It makes little sense to revoke the storm damage rebuild exemption without closing the CAFRA 24 unit loophole.

NJ’s State coastal zone land use management law, known as CAFRA, exempts rebuilding of storm damaged properties from CAFRA permit requirements:

The reconstruction of any development that is damaged or destroyed, in whole or in part, by fire, storm, natural hazard or act of God, provided that such reconstruction is in compliance with existing requirements or codes of municipal, State and federal law

The CAFRA “right to rebuild” permit exemption, working in tandem with the CAFRA 24 unit loophole, strongly encourages rebuilding of storm damaged properties in the same footprint and in the same vulnerable location.

[Note: The Highlands Act (Section 30. (a) 4.) exempts reconstruction,  so that exemption would need to be repealed too.]

These loopholes that promote mindless rebuilding are a major reason why NJ has the Nation’s third highest repetitive flood loss insurance claims under the Federal Flood Insurance Program. According to the NJ Hazard Mitigation Plan:

There are approximately 245,806 NFIP policies in New Jersey. Of those policies, 16,017 are considered repetitive loss (RL) and 2,097 are considered severe repetitive loss (SRL).

So, just 6% of the properties create the large majority of the repetitive loss problem, with less than 1% severe repetitive loss.

Obviously, those properties hold not be rebuilt and should be targets of acquisition.

But, the Christie Administration’s “Blue Acres” and HUD CDBG acquisition plans are not specifically targeted at those repetitive loss properties.

So, current policy provides a big green regulatory exemption light to rebuilding in hazardous locations and does not target the most hazardous locations for acquisition – the worst of all worlds. Typically Christie incompetent governance.

Making matters even worse, these vulnerable repetitive loss properties are not all located along the coast in the CAFRA zone. See the map above and note that the majority are inland and at risk from river flooding, not coastal flooding.

Which takes me to my testimony on the bill.

CAFRA is not the only state law that allows and encourages rebuilding of flood and storm damaged property.

The Flood Hazard Area Control Act, which protects against river flood risks, contains a permit exemption very similar to CAFRA.

58:16A-55.1. Repair or rebuilding of lawful preexisting structure within flood hazard area

No rule or regulation adopted pursuant to section 4 or 7 of P.L. 1972, c. 185 (C. 58:16A-55 or 58) shall prevent the repair or rebuilding within a flood hazard area of any lawful preexisting structure which was damaged by a flood or by any other means.

Homes that are damaged or destroyed  by river flooding may be rebuilt without having to secure a DEP flood hazard permit.

That makes little sense and contributes to the repetitive loss problem.

So, I requested that the bill be amended to make the proposed policy under CAFRA uniform across the state.

Why should the reconstruction of storm damaged properties along the coast be subject to CAFRA permit requirements, while the rebuilding of storm damaged  inland properties are exempt from permit requirements?

Chairman Smith stated that he had discussed my proposed amendment with the sponsor, Senator Barnes, and they agreed that it would significantly expand the scope and applicability of the bill.

Smith then stated that the CAFRA bill would apply to virtually no one – after which he summarily rejected my proposed amendment.

I call bullshit on that.

Why waste time passing a bill that would apply so narrowly and have very little impact on the problem?

Time To Rethink RGGI In Light of Upcoming EPA Rules On Existing Power Plants

Lower RGGI Cap or A Ratcheted Down & Stricter EPA Rule

The Senate Environment Committee heard S151 yesterday, and re-engaged the RGGI debate, just 2 days after a NJ court Ordered the Christie Administration to reconsider the Governor’s unilateral decree to leave the RGGI pact without complying with public rule making procedures.

The Court’s decision was another rebuke to the Gov.’s abuse of executive power – and the Court gave the Administration just 60 days to comply.

The bill – co-sponsored by Senate President Sweeney – is another political challenge to the Gov.’s decision to leave RGGI.

Whether the bill represents a real challenge of the Gov.’s abuse of executive power and a legitimate greenhouse gas emissions reduction effort remain to be seen. The last thing we need at this point are partisan stunts.

During the hearing, Chairman Smith had fun with Doug O’Malley of Environment NJ, one of the successful plaintiff’s in the lawsuit that led to the Court’s decision.

O’Malley played the Cheshire Cat, but perhaps prematurely, as the Court’s Order could turn out to be a Pyrrhic procedural victory, a point the Chairman’s later question “What happens if DEP proposes a regulation to exit RGGI” clearly brought out.

Tom Johnson at NJ Spotlight covered the hearing, see: SENATE COMMITTEE VOTES OUT BILL THAT WOULD REQUIRE RETURN TO RGGI

I had not planned to testify, but felt compelled to testified to clarify a few issues.

Again, unfortunately, I was forced to agree with Governor Christie regarding RGGI impacts on emissions from the power sector. RGGI simply does not provide incentives or enforceable regulatory sticks to reduce emissions from the NJ power sector. Just the opposite – it locks in and allows significant increases to current emissions.

And RGGI certainly does very little to implement the goals of the Global Warming Response Act, which require an 80% reduction by the year 2050.

During the few years it operated, RGGI allowances sold at the statutory minimum and the program generated about $50 million per year to fund energy conservation, efficiency, and low income consumer subsidy programs.

Those are great programs that provide great benefits, but the small emissions reductions they provide can be secured by other existing programs funded under the far larger Societal Benefits Charge ($400 million/year). Those programs can be mandated by BPU under the existing laws governing energy efficiency and renewable energy goals, and NJ’s renewable portfolio standards.

We don’t need RGGI to authorize or fund those programs. Far larger pots of money and legal leverage exist to fund and mandate far larger emissions reductions.

So the RGGI program’s justification should focus exclusively and be grounded in far larger potential emission reductions from the power sector.

And from that perspective, the program fails badly. Power sector emissions reductions are far more significant than the small reductions that result from RGGI funded conservation, efficiency, and consumer subsidy programs.

In addition to failing to make these critical distinctions between energy demand and supply and the various suite of programs that should target each (and who should pay and how those programs should be financed), I wonder whether the environmentalists who supported the bill read it.

1. The legislation requires that the trading program shall be:

“consistent with the terms of the Memorandum of Understanding signed by New Jersey and other states on December 20, 2005″.

The so called pollution cap under that 2005 MOU agreement is at least 35% above current emissions.

The bill will result in the OPPOSITE of what it claims: instead of providing incentives to reduce current emissions, it will provide incentives to increase them.

If the Legislature were serious, they would require that as a condition of NJ rejoining RGGI, that the cap be reduced so that real reductions occur based on current emissions. And they would put a number into law, say by 35% – and put the total NJ emission allowances in the bill to make them enforceable.

It is my understanding that the RGGI states are already engaged in negotiations to reduce the current cap, so this issue must be addressed by NJ policymakers anyway (assuming NJ were to re-enter RGGI).

2. As I testified, EPA is scheduled to propose regulations under the Clean Air Act to reduce greenhouse gas emissions from existing power plants in June 2014.

The Natural Resources Defense Council is suggesting that those EPA rules could reduce current emissions from existing plants by 21 – 31%, based on 2012 baseline emissions.

One compliance option under those rules may be participation in RGGI.

So this begs the question: which program will reduce NJ emissions deeper and faster: the EPA rules or the RGGI program?

How do those reductions compare with NJ’s GWRA 80% reduction goal?

So, before deciding whether to rejoin RGGI, state policymakers should be informed by a side by side analysis of RGGI versus the Obama EPA rule, in terms of total emissions reductions over time and the ability to monitor and enforce those reductions.

Again, if the legislature were serious about reducing emissions, then this would have been considered openly – before I had to raise it – and the Chairman would have formally requested that DEP perform that kind of side by side emissions analysis.

That didn’t happen either.

While I am not optimistic that the Obama EPA rule will be aggressive, particularly as applied to NJ which has a relatively low carbon energy infrastructure due to lots of nuclear power, at a minimum sound policymaking demands that side by side comparison.

Such a comparison would also hold the Obama EPA accountable and dispel the myth that the administration is engaged in a “war on coal” and test whether the Obama EPA is serious about using a big regulatory stick to reduce GHG emissions to respond to the climate crisis.

Ironically, the EPA regulation – which would apply nationally and in carbon intensive places like Pennsylvania – would eliminate the business community’s criticism about “leakage” and uncompetitive energy policy that discriminates against lower carbon higher cost NJ power.

In another irony, RGGI was created as an incremental regional state program to spur national action in Congress on a federal market based cap/trade program.

That market based approach has failed in Congress, and the Obama EPA is committed to a regulatory strategy.

So, we also need to rethink not only the numbers, but the fundamental policy choice of a market based or regulatory approach.

I’m a regulatory mandate advocate – the only proven approach.

But not of the NRDC backed “flexible, cost effective, state partnership based” variety of regulation.

No way carbon intensive states make any real commitments without a huge federal EPA regulatory stick.