Home > Uncategorized > NJ’s Industrial Coastal and Riverfront Risks – More Good Reasons To Veto Christie DEP’s Flood Hazard Rules

NJ’s Industrial Coastal and Riverfront Risks – More Good Reasons To Veto Christie DEP’s Flood Hazard Rules

Tank Farm - Woodbridge, NJ

Tank Farm – Woodbridge, NJ

[Update below]

NJ Spotlight published a superb analysis and mapping exercise today, looking at vulnerabilities and risks from NJ’s industrialized coastline and riverfront areas –  read the whole story and look at the interactive maps:

I need to add a few observations about how these risks are being ignored or recklessly mismanaged by the Christie DEP.

First of all, if NJ had a climate adaptation plan, these kind of risks and vulnerabilities could be addressed comprehensively and necessary new safeguards could be developed.

But NJ is the only northeastern coastal state that lacks a climate adaptation plan.

The Christie DEP has simply ignored – and thereby denied – the reality of climate change and done very little to address increased risks associated with climate related phenomena, like sea level rise, more frequent and intense storms and flooding, and increased storm surge.

Instead of planning for adaptation to climate change, the Christie DEP has dismantled virtually all DEP planning functions – from the Water Supply Master Plan to Water Quality Management Planning to the planning necessary to implement the Global Warming Response Act and to comply with the Obama EPA’s Clean Energy Plan.

The Christie decapitation of the DEP planners and dismantling of planning was done mostly for ideological reasons and an animus to government planning and intervention in markets.

Second, in addition to dismantling DEP’s planning programs, on the regulatory front, the Christie DEP has followed Governor Christie’s “regulatory relief” policy.

The Christie DEP is anti-regulatory, and the Gov.’s Executive Order #2 (regulatory relief, rely on federal minimum standards, cost benefit analysis, etc) has put a brake on developing any new regulatory initiatives.

The DEP should be embarked on a systematic plan to strengthen current regulations that address management of hazardous chemicals and hazards wastes in vulnerable coastal and riverfront locations, including:

But none of that work is underway.

[Even worse, Foundation funded non-profit groups are praising that State abdication under the guise of “municipal sustainability “.]

The Gov. has disparaged regulation with mindless slogans like “job killing red tape” and – with no evidence – claimed that DEP oversight is a huge drag on the economy.  

The Governor’s Executive Order #2 revised the regulatory process to give business lobbyists an inside track and “advanced notice of rules, in order “to prevent unworkable, overly-proscriptive or ill-advised rules from being adopted.”

That gives business lobbying groups like the Chamber of Commerce, NJ BIA, and Chemistry Council a virtual strangle hold and absolute veto over new regulations.

But the reality is actually worse than just ignoring these risks and the impacts and vulnerabilities of climate change.

DEP just proposed to weaken the flood hazed rules for landfills and contaminated sites and to grandfather industrial facilities from any new more stringent regulations – which is exactly the OPPOSITE of what they should be doing, as the NJ Spotlight story illustrates.  

Here is DEP’s justification for that reckless policy:

hazardous site investigation and cleanup activities and landfill closure activities often require grading and/or the placement of fill material, such as to construct a cap to prevent or reduce further groundwater contamination. In cases where these activities take place within flood hazard areas, the Department recognizes that it may not be possible or feasible to fully compensate for the volume of flood storage displacement necessitated by the activity.

In order to reduce the existing regulatory burden for these environmentally beneficial projects, the Department is proposing to exempt these projects from the flood storage displacement limitations of this section, provided several conditions are met to ameliorate any potential offsite impacts to flooding and the environment.” (page 187)

In addition to ignoring risks from hazardous waste sites and landfills, DEP is ignoring risks from industrial facilities that handle hazardous chemicals.

Instead of ratcheting down regulations to address these flood related risks, DEP if proposing to “streamline” regulatory requirements:

Permits-by-rule (N.J.A.C. 7:13-7)
The Department is proposing to recodify and amend two existing permits-by-rule and is proposing three new permits-by-rule to promote site monitoring and investigation activities, and activities related to the placement, storage and processing of hazardous substances.

A “Permit by rule” eliminates DEP review and public involvement (i.e. public hearing and public comment), essentially delegating compliance review to  the consultants that work for the polluters.

But DEP has gone way beyond procedural streamlining –

DEP proposed to GRANDFATHER (i.e. exempt) existing facilites from new regulatory requirements!

Permit-by-rule 52 (N.J.A.C. 7:13-7.52)
Existing N.J.A.C. 7:13-7.2(e)5, which authorizes the placement, storage, or processing of hazardous substances at a lawfully existing hazardous waste facility located in a regulated area, is proposed to be relocated to proposed N.J.A.C. 7:13-7.52 with amendments. The existing permit-by-rule limits the placement, storage, and processing of hazardous substances to “hazardous waste facilities,” which is defined at existing N.J.A.C. 7:13-1.2 to mean a “facility that is licensed by the State to receive, store and/or process hazardous substances, and which is operating in accordance with all applicable Federal, State and local laws.” However, any number of facilities may seek to place, store, and process such material, such as fuel distribution centers, automobile repair shops, and dry cleaners. The proposed permit-by-rule therefore addresses such facilities that were established prior to the adoption date of the existing chapter, have been in continuous operation since that date, and are operating in compliance with all Federal, State, and local requirements. The existing permit-by-rule references the proposal date of the existing chapter. However, in order to address facilities that lawfully began placing, storing, or processing hazardous substances in a regulated area between the proposal and adoption date of the chapter, the proposed permit-by-rule references the adoption date.

Under the proposed permit-by-rule, the footprint of the area in which the hazardous substances is stored within the riparian zone must not increase and no trees can be cleared, cut or removed in the riparian zone. This clarifies the Department’s intention regarding the permit-by- rule, which is to allow existing uses within the flood hazard area and riparian zone to remain, provided the size of the facility and the peak volume of material stored in the flood hazard area are not increased, while also preserving existing riparian zone functionality.”

Ignoring critical vulnerabilities and the mismanagement and deregulation of risks from hazardous waste sites, landfills and industrial facilities that store hazardous substances and hazardous wastes is just another good reason for the Legislature to veto the DEP’s proposed flood hazard rules.

The Resolution to veto these rules has passed the Senate (SCR 180) but is stalled in the Assembly.

We urge readers to call Assembly Speaker Prieto today and demand that he post ACR 249 for a vote before the session ends.

[Update: A reader just emailed me a recent related USGS Study I have not read yet:

“Strategy to evaluate persistent contaminant hazards resulting from sea-level rise and storm-derived disturbances—Study design and methodology for station prioritization” ~~~ end update]

[Update #2 –  just scanned that USGS strategy document and had some concerns:

1) the approach is limited to contaminants that are “sediment bound” – that seems to exclude basic water quality parameters for water column sampling.

2) the 100 year flood event – elevations are used to define the area of concern – it should be the 500 year storm  given climate change predictions for more severe storms;

3) the facilities are limited to TRI database – that ignores toxic sites and landfills and other non-TRI facilities that store hazardous substances and wastes

One big example are RCRA and CERCLA impoundments in river flood hazard areas. A breach can cause a pretty massive problem – w almost had that occur on the Raritan during Irene.

Anyone know if this USGS strategy document is final? Is there a public comment opportunity?


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