WolfeNotes.com

DEP Opposes Public Hearings and Prefers to Work Confidentially With Mayors

Key DEP & EPA Superfund Listing Decisions Remain a “Black Box”

“National Priority List” has become a “Mayor’s Priority List” 

Today, we are taking a new direction. Today, a new era of accountability and transparency is here. ~~~ Gov. Christie, first Inaugural Speech (1/19/10)

The bill opens a Pandora’s box of controversial issues regarding exactly how a toxic site gets listed on the federal Superfund NPL: i.e. who makes that decision, on what basis the decision is made, the public’s right to know and role in those decisions, and what are the roles of the federal and state governments.  ~~~ Bill Wolfe, 3/11/14

I was prepared yesterday to testify to the Senate Environment Committee on an important bill that would require that NJ DEP prepare a Report and hold public hearings before recommending that a toxic site be listed by US EPA on the federal Superfund “National Priorities List” (NPL)  (See A2340).

I testified, recommended strengthening amendments, and wrote about that bill during the recent Assembly consideration, see:

• NJ Legislators Propose To Change State Role In Superfund Site Listing Process

The bill passed the Assembly on May  22 by a unanimous 78-0 vote. It is sponsored by Louis Greenwald, the Assembly Majority leader, so there is obviously significant pressure on the Senate to move the bill to the Governor’s desk.

According to DEP testimony, the bill grew out of a controversy in South Jersey, where DEP recommended a site to EPA for NPL listing. Local officials were blind sided and did not find out about DEP’s recommendation until after the fact, when the EPA formally proposed the site in the Federal Register.

DEP refused to name that south jersey site in Greenwald’s district – or whether EPA followed through with the Superfund listing.

In a letter submitted to the Committee “late on Friday”, the DEP flat out opposed the bill because they said a public process would “tip their hand” and undermine enforcement of State cleanup laws.

DEP also flat out claimed that their decisions about whether to recommend that EPA list a NJ site on the federal Superfund NPL was “not a public process” (you can listen to the testimony here).

Hundreds of people in Pompton Lakes fighting to get the Dupont toxic site listed on the NPL would disagree strongly with that DEP claim. They are demanding transparency and a very public process.

DEP also claimed that they currently worked well with Mayors on a confidential basis, and that they are sensitive to and would not over-ride a Mayor’s preferences, so there was no need for the bill.

Again, the  people in Pompton Lakes, who have criticized DEP’s closed door dealings with Mayor Cole – and thousands of people in Roxbury Township denouncing DEP’s lack of communication and questioning Mayor Rilee’s efforts on the Fenimore Landfill – would disagree strongly with that as well.

Throughout DEP’s testimony, they misleadingly emphasized that the Superfund NPL listing process is a federal responsibility and that it is subject to public participation during the EPA rule making process.

This is misleading on at least two grounds – first, EPA defers to NJ DEP in making NPL decisions, so DEP’s recommendation to EPA is crucial. It is vital that NJ residents have an informed opportunity to influence DEP’s recommendations to EPA.

Second, both EPA and DEP are aware of and have tons of important information on toxic sites that the public should be aware of, including the Superfund eligibility, scoring, and risk ranking system known as the “HRS” – which takes ut to how sites are listed and on what basis they are listed.

• The implications – How the Superfund NPL listing process works

The DEP’s decision whether to recommend that EPA list a site on Superfund is extremely important for the protection of public health and the environment.

As even DEP noted, a Superfund NPL site benefits from significant US EPA financial and technical resources, enforcement leverage, and public participation in cleanup decisions.

High risk toxic sites that qualify for Superfund on a risk basis may languish for years under NJ’s voluntary cleanup program, which lacks those federal resources and enforcement stick.

So, DEP’s decision to recommend that EPA list a NJ site provides huge benefits to the people of a community.

Under current EPA Superfund listing policy known as “state concurrence”, the support and recommendations of States are prerequisites for Superfund listing.

EPA will not list a site on the NPL without the support of the State Governor. Similarly, State’s can block EPA scientists’ recommendations that a site be listed on the NPL.

But, communities across NJ lack awareness of the Superfund listing process, the existence of these high risk sites, or the opportunity to secure EPA Superfund resources.

If communities became aware of the fact that high risk sites were eligible for Superfund, they could put pressure on DEP and EPA to list those sites and bring additional federal resources and enforcement authority to their towns.

To provide transparency and this critical information to local residents, PEER sought to obtain DEP and EPA documents, known as “Hazard Ranking Scores” (HRS) on NJ sites that qualify for Superfund. Both DEP and EPA conduct HRS scoring.

A toxic site with a HRS score greater than 28.5 qualifies for Superfund listing. For example, the Dupont site in Pompton Lakes scored an astronomical 70, even without consideration of vapor intrusion risk, a facts that residents have emphasized in urging DEP and EPA to pursue Superfund listing.

EPA denied our request for these HRS documents under the federal Freedom of Information Act (FOIA), so we had to sue EPA to obtain those HRS documents.

Settlement of the PEER EPA  lawsuit resulted in ou discovery of the fact that at least 36 NJ sites qualify for Superfund, but DEP has not recommended that EPA list those site -for a list of those sites and communities, see:

• TWENTY SEVEN NEW JERSEY SUPERFUND-ELIGIBLE SITES LEFT OFF LIST -EPA Still Reviewing Status of Unknown Number of Garden State Toxic Hotspots
• EPA Discloses None more Superfund-eligible Sites in New Jersey – Thirty Five Sites Passed Over for Superfund Relief

• Bill Held, no testimony taken (other than DEP)

DEP asked that the bill be held.

Chairman Smith agreed with both DEP and  Greenwald and offered a compromise. Smith suggested that instead of a public hearing, the bill be revised to require just a 90 day notice to the Mayor.

The Smith compromise is a bad idea that would continue to shut communities out of a critical decsion-making process at DEP and maintain the status quo black box and behind closed door local politics.

Smith then asked for and received a motion to hold the bill.

That move blocked any testimony, so none of all these issues got discussed.

• “National Priorities List” (NPL) has become a “Mayor’s Priority List” (MPL)

Under the federal Superfund law, the decision about whether to list a contaminated site on the NPL is a federal US EPA responsibility, not a State or local responsibility.

NPL listing decisions are supposed to be based on science and risks to human health and the environment, not politics, economics, or local parochial concerns.

States are given no role in this decision, but the law does give State’s an opportunity to express concerns and, under a separate provision, to target a very small number of  sites for priority consideration.

Unfortunately, ever since the Clinton Administration aquiesced to the Gingrich Revolution (Contract On America) and the radical federalism policies of the 94th Congress, (does anyone still recall Al Gore’s “Reinventing Government”?) EPA has pursued a “partnership” relationship with the States.

Under Superfund, this means “state concurrence”, which has effectively delegated federal NPL decision-making to the States.

Now, in NJ, the State of NJ is giving local Mayor’s a veto power over State NPL recommendation decisions.

It’s a two step rollback: the National NPL has become the Mayor’s MPL.

Katrina Diaspora and Societal Failures

Next time you think that climate change is about polar bears and icebergs, just look at this map and think that each  dot is a person or family, or what’s left of one.

Sorry for the poor quality – If not legible, access on line version of full document here.

Controversial “Forest Stewardship” Bill Vetoed By Christie Is Back

Serious Flaws and Lack of Safeguards Remain Unaddressed

How is it possible for any forestry initiative to not consider climate change? How can the most densely populated state not have urban forestry as a component of overall forest management?

[Update below]

The controversial “Forest Stewardship” legislation that was conditionally vetoed by Governor Christie last session is back for reconsideration on Monday by the Senate Environment Committee.

This session’s bill – see S2034 – is again sponsored by Chairman Bob Smith.

Most environmental groups oppose the bill because it would promote commercial logging on state lands and because it lacks effective safeguards. In fact, the original introduced version of the bill was titled “Forest Harvest” and it openly and unabashedly promoted commercial logging.

However, other conservation groups – all of whom would in some way benefit from the legislation – support the revised version of the original  bill  – despite the fact that the bill’s supporters include commercial logging interests – and feel that the private Forest Stewardship Council (FSC) certification process provides adequate safeguards.

But, DEP opposes the FSC role and Gov. Christie vetoed the bill because of the FSC role.

I have written multiple posts in strong opposition to the bill on multiple grounds I will not repeat here. This brief note is intended merely a heads up on Monday’s hearing.

However, I did write to Senators Smith (Chairman & sponsor) and Bateman, the ranking Republican, to urge that they consider amendments, as follows –

How is it possible for any forestry initiative to not consider climate change? How can the most densely populated state not have urban forestry as a component of overall forest management?:

Dear Chairman Smith:

I note that your “forest stewardship” bill, S2034, is up for consideration on Monday.

As you know, I oppose this bill for several reasons, which I will not rehash here.

However, as you also know, I previously suggested major changes to the original introduced version of the “forest harvest” bill, many of which you agreed to and adopted, that made the bill palatable to conservation groups and fostered compromise (recalling the old adage: “be careful what you ask for”).

So, with that disinterested spirit of improvement in mind, let me suggest further new amendments (in addition to those you’ve already rejected) to improve your  bill.

These are all sound policy ideas, backed by lots of science, and implemented in many places in the US and internationally:

1. Recognize climate change as a major threat to forest ecosystems and require that climate change impacts, afforestation, and adaptation techniques be included in all forest management plans.

The bill as drafted merely suggests that carbon sequestration be “considered”. The single legislative finding on climate is far too narrow.

The scientific basis for this amendment would be the recent US National Climate Assessment, which documents and projects forest impacts in the northeast region. Read and download that Report here.

2. Recognize urban “heat island” and related energy, clean air, public health, environmental justice, and aesthetic benefits of an urban forestry program

The basis for these recommendations is provided here:

• Two Key Words You Won’t Find in “Forest Stewardship” Bill

3. Establish an urban forestry program and set a time bounded numerical planting goal – 1 million trees in NJ’s cities.

Urban forestry is justified not only by science and public health, but by environmental justice, redevelopment, and aesthetic concerns.

The above are all new suggestions –

In conclusion, I could support this legislation if you could also amend the bill to:

a) subject Forest management Plans and forestry operations to all current regulatory standards and requirements that apply to development;

b) eliminate the Forest Stewardship Council;

c) delete the distribution of revenues to DEP, or what I have described as “perverse incentives”  that promote logging;

d) ban commercial logging;

e) ban chemical herbicides

f) expand and formalize public participation requirements in the Forest Management Planning process.

g) include requirements for field monitoring and stronger enforcement provisions to create incentives to comply;

i) prohibit use of forest “products” for commercial energy recovery or consideration as “renewable energy” (residential firewood is OK)

I appreciate your consideration,

Bill Wolfe, Director

NJ PEER

[Update – National Climate Assessment – Chapter 7 – Forestry

Key Messages

1. Climate change is increasing the vulnerability of many forests to ecosystem changes and tree mortality through fire, insect infestations, drought, and disease outbreaks.
2. U.S. forests and associated wood products currently absorb and store the equivalent of about 16% of all carbon dioxide (CO2) emitted by fossil fuel burning in the U.S. each year. Climate change, combined with current societal trends in land use and forest management, is projected to reduce this rate of forest CO2 uptake

Chapter 9 – Human Health

Key Messages

1. Climate change threatens human health and well-being in many ways, including impacts from increased extreme weather events, wildfire, decreased air quality, threats to mental health, and illnesses transmitted by food, water, and disease-carriers such as mosquitoes and ticks. Some of these health impacts are already underway in the United States
2. Climate change will, absent other changes, amplify some of the existing health threats the nation now faces. Certain people and communities are especially vulnerable, including children, the elderly, the sick, the poor, and some communities of color.
3. Public health actions, especially preparedness and prevention, can do much to protect people from some of the impacts of climate change. Early action provides the largest health benefits As threats increase, our ability to adapt to future changes may be limited.
4. Responding to climate change provides opportunities to improve human health and well-being across many sectors, including energy, agriculture, and transportation. Many of these strategies offer a variety of benefits, protecting people while combating climate change and providing other societal benefits.

Almost 10 years ago, back in 2005 testimony to the Clean Water Council, I emphasized the need for a public investment strategy and outlined a specific 23 point regulatory agenda and financial solutions.

• Bottom line: It remains to be seen whether today’s hearing was part of a process of building consensus and political will, or just another sham Dog & Pony.

Last week, a package of water infrastructure bills authorizing some $359 million were approved by the Senate Environment Committee with no testimony from DEP and virtually no debate, something I complained about in this post:

• Environmental Infrastructure Funding Bills Continue to Ignore Climate Risks and Adaptation

So I was pleased that yesterday, the Assembly Environment Committee conducted a special hearing on NJ’s crumbling water infrastructure and a huge deficit in financing some $40 billion in necessary upgrades.

DEP was invited and kicked off the testimony by touting their various efforts during and after Sandy, including a new permit program to control urban “combined sewer overflows” (CSO’s), their bridge loan program known as SAIL,  and new “Asset Management Guidance”.

NJ Spotlight covered the hearing, but their story left out context and many important issues, see:

NJ’S ARCHAIC WATER SYSTEM: THE $40B PROBLEM IN SEARCH OF A SOLUTION

Since good testimony was ignored in the Spotlight piece, I figured I’d cover it here.

• DEP comes out from hiding – spin is over the top

DEP and the NJ EIT testified. Let’ just say they were not in any way defensive about criticisms of their policy and performance.

Instead DEP went on offense and took credit for a suite of major new programs, including CSO controls, asset management, “resilience” (what ever that means), SAIL (bridge loan program), and Sandy rebuild.

But no one mentioned the inconvenient fact that only a lawsuit by NY/NJ Baykeeper forced them to take action on CSO’s after many years of foot dragging.

Amazingly, as the DEP panel gained momentum in their testimony, it all got so over the top that at one point, citing Camden County as a model, NJEIT Director Zimmer  suggested that infrastructure investments would LOWER user rates – he implied that lower interest payments on NJEIT loans, more efficient equipment (e.g. energy costs savings) and budget CUTS essentially would pay the debt service.

For a $40 billion deficit? Are you kidding me?

I wonder if that’s the kind of “financial” approach that Zimmer pursued in his private sector days as an investment banker working in “structured finance”.

Aside from the ludicrous nature of Zimmer’s claim (i.e. free lunch, something for nothing, just borrow your way out of the problem with no real cost), in Zimmer’s mention of CUTS, I sensed a bit of what the international lending agencies like the World Bank and IMF call “Structural Adjustment” – Neoliberal austerity where debt is used as an instrument of policy to force damaging concessions, like CUTS to social safety net programs.

This made me wonder if Zimmer’s NJEIT is doing quiet damage by imposing cost cutting conditions in NJEIT loans. We already know that DEP failed to comply with federal Buy American and prevailing wage requirements and that the Christie Administration is ant-union and anti-labor, so NJEIT imposed anti-labor cost cutting measures is not unthinkable.

In response to DEP’s self congratulatory testimony, they were unable to answer some very basic questions from Legislators to back up the rhetoric with facts.

I won’t go into all the details, but mention Assemblyman Benson’s question:

Q: How many of the over 500 wastewater and water facilities permitted by DEP have submitted asset management plans?

A: DEP reply: we don’t track that information, but none have. Actually, we are exploring what new legal authorities we may need to require asset management plans and have chosen to post Guidance on the website instead of enacting regulations.

So, the entire asset management initiative that DEP bragged about is non-existent: it is not being implemented and it is voluntary. The DEP doesn’t even track the information!

There were other embarrassing examples, my favorite was the pump station at Lake Como as 1 of just 2 minor SAIL post Sandy projects that have been accomplished – all this is too detailed to go into hear. Suggest you listen to the entire hearing (hit this link).

• Regulatory context ignored

The Association of Environmental Authorities and private water companies testified – much or their testimony praised DEP as a “partner”.

Absent from the Committee discussion was the reality that AEA’s members and private water companies are regulated by DEP, that there should be some tension if not an adversarial relationship between regulator (DEP) and the regulated; and that AEA members, for decades, have fought DEP efforts to enact tougher regulations on AEA members.

• Solutions Offered

Contrary to the impression created by the NJ Spotlight story, many specific and economically feasible solutions were presented to the Committee in testimony.

NY/NJ Baykeeper urged the Committee to restore and move prior bills on storm water utilities, green infrastructure, public disclosure of CSO discharges, and funding of natural oyster resilience projects.

I testified about DEP failure to use regulatory and planning powers under the Water Supply Management Act and the Clean Water Act as a means of driving investment and planning for climate change adaptation and asset management.

The DEP has abandoned and abdicated ints planning powers. The Water Supply master Plan is 25 years out of date and the Water Quality planning program has delegated DEP responsibilities to Counties and authorities. This is key failure, because DEP water permits must be consistent with these plans.

I also specifically recommended that DEP’s “asset management Guidance document” be incorporated in the the NJ EIT FY’15 legislative package released from the Senate Cmte last week – that package of bills has not yet been heard in the Assembly.

I testified about DEP’s failure to use inspection and enforcement powers to provide incentives (what Dan Van Abs referred to as “price signals”) to facilities to comply with current permit requirements regarding emergency planning, backup power, climate adaptation, etc.

I also cited specific economic methodologies that the legislature and DEP could include in asset management requirements, including lifecycle cost (and of course, external costs).

There is other recent legislation that has been killed by development interests, including:

1) expanded impact fees so that redevelopment becomes an opportunity to upgrade decrepit infrastructure;

2) Senator Smith’s water tax bill;

3) “flush” taxes on wastewater – (not yet introduced in NJ, but I think Maryland has enacted a fee on wastewater to fund Chesapeake Bay restoration work). and

4) stormwater or impervious surface fees (could be part of regional storm water utility legislation or statewide).

5) Almost 10 years ago, back in 2005 testimony to the Clean Water Council, I emphasized the need for a public investment strategy and outlined a specific 23 point regulatory agenda and financial solutions.

Unfortunately, despite all these good suggestions, at the close of the hearing, Committee Chairwoman Spencer made no summary statement that would suggest a going forward plan and no commitments for next steps or action items.

Bottom line: It remains to be seen whether today’s hearing was part of a process of building consensus and political will, or just another sham Dog & Pony.

But we will be back on this issues soon, when the FY 15 NJ Environmnetal Infrastructure package of bills is up before this committee. We’ll keep you posted

BL England Shutdown Imminent

This is what victory looks like

 

Shut Down All Coal Plants

 

Source: PJM (click to read)