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Archive for April, 2016

NJ DEP Has Know For YEARS that Up to 18% of NJ Homes Have High Lead Levels

April 22nd, 2016 No comments

With all the focus on lead growing out of the Flint Michigan and Newark Schools tragedies – including criminal charges filed against State regulators –  I thought the DEP data hidden in plain sight would be mined by intrepid reporters and NJ’s “environmental justice” advocates.

I was terribly wrong on both counts.

So here is the lead data, from DEP’s Private Well Testing Act Report (2008):

Lead samples in homes – A total of 5,523 (11%) of the homes had lead levels above the previous Ground Water Quality Standard of 10 μg/l. This number increased to 9,368 (18%) of homes that had lead levels above the new Ground Water Quality Standard of 5 μg/l. This indicates that many homes still have lead in their plumbing systems, since it is unlikely that it originated from the raw ground water supply.  (page 18)

DEP changed the data format of the most recent Private Well Testing Act report to frustrate understanding of statewide statistics like the above.

Take a look and see if you find this new format helpful or whether it obscures the data.

Welcome to transparent and accountable government in the age of Christie!

Neither US EPA nor NJ DEP have an enforceable drinking water standard – known as an “MCL” (“Maximum Contaminant Level”) – for lead.

EPA has a 15 ppb “action level” – this is NOT an MCL.

NJ DEP uses the lower 5 ppb groundwater quality standards for the PWTA data –

It is not reported how many of the homes that exceed NJ DEP’s 5 ppb GWQS also exceed EPA’s 15 ppb “action level” and it is not clear whether any such exceedence triggers mandatory followup sampling and corrective action.

Is this public health decision left up to the home buyer and seller?

Good questions to pose to NJ DEP.

[End note: on the EJ front, why should the family able to afford a home in rural Hunterdon County served by a well get more effective drinking water protection than a family that purchases a modest home in Irvington or Newark or Camden?

Why should renters of homes served by wells get less protection than homeowners?

Ask the environmental group who championed the PWTA.

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Christie DEP Proposes To Weaken Key Highlands Water Quality Protections To Promote More Growth

April 22nd, 2016 No comments

Needless concession to lawsuit by the NJ Farm Bureau

Proposal violates policy, standards and intent of Highlands Act

Sham claim of “new science” is a cover story

DEP's Ray Cantor (standing) and State Geologist Jeff Hoffman (seated) brief local officials on septic density rollbacks (4/21/16)

DEP’s Ray Cantor (standing) and State Geologist Jeff Hoffman (seated) brief local officials on septic density rollbacks (4/21/16)

Yesterday, as I feared, the Christie DEP proposed a major retreat from the current strong septic density standards in the Highlands, which protect water resources by strictly limiting development to one unit per 88 acres in forested areas and 25 acres on farmlands.

The change was announced by DEP as a fait accompli to municipal and county officials in a morning briefing and to the Highlands Council in the afternoon.

The new DEP septic standards will be lot sizes of 23 acres in forested areas and just 11 and 12 in farmlands –  you can read the DEP proposal here. (I have not read it yet and am working off 2 DEP briefings).

In their orchestrated campaign rollout, the DEP is trying to spin the story and get out in front of the shitstorm that will occur after the public understands the proposal and immediately issued a press release.

The DEP’s cover story is that the proposal is based on “new science” and “new data” – but this is total bullshit.

The so called “new science” is from an August 2015 USGS study (see below), which is flawed, not appropriate for the Highlands, and inconsistent with the Highlands Act.

The DEP sought and sponsored the USGS study, so they invited the “new science” as a planned pretext to provide a basis to rollback the current standards.

The so called “new data” is from the Private Well Testing Act (PWTA). But this also is non-sense, because DEP had a lot of that PWTA data when they proposed the original Highlands rules back in 2005. DEP issued the first PWTA data report in 2004.

DEP had significant concerns with the PWTA data, intentionally chose not to use that data for good reasons, and and specifically rejected it in favor of groundwater data that reflected the standards, policies and intent of the Highlands Act. Read DEP’s rationale.

The unstated DEP motivations for the rollbacks are Gov. Christie’s strong oppostion to the Highlands Act and his inability to convince the Legislature to rollback the Act. The Gov. is doing through DEP regulations what he could not achieve in the Legislature. This alone should be solid grounds for a legislative veto.

The opportunity and means to implement the rollback was Commissioner Martin’s decision – way back in May 2010 – to settle a lawsuit and capitulate to the Farm Bureau. The Courts and 2 Administrative Law Judge’s decisions had upheld the DEP rules, so there was no reason to settle the case and cut a dirty deal with the Farm Bureau.

The DEP simply moved the goalposts from a density standard based on natural background conditions (e.g. “pristine”) to a standard based on groundwater that has already been polluted by septic systems and agricultural chemicals and animals.

Here is the NJ DEP Basis for the current standards:

The context for method selection must be guided by the intent of the legislation, which is to protect and restore ground water and surface water quality.  […]

Two ambient nitrate concentration standards were selected, 0.21 mg/L for forest land use and 0.76 mg/L for mixed land use. 

Here is the basis from the USGS Study (August 2015):

The estimated median nitrate concentration for the entire Highlands Region is about 1.25 mg/L as N, and estimated median concentrations range from about 1.05 to 1.78 mg/L as N among 11 smaller administratively defined areas within the Highlands Region that vary in percentages of urban land use, agricultural land use, and septic-system density.

The change from the original DEP 0.21 mg/L – and 0.76 mg/L natural background concentrations to the USGS median regional anthropogenic impacted values decreases lot sizes tremendously.

This is complex and will take several posts to cover adequately, but to begin the process, I sent the following note to State Geologist Hoffman, with a copy to Legislators.

At this point, the only thing that can derail this train is a legislative veto as “inconsistent with legislative intent”:

Dear State Geologist Hoffman:

I am writing regarding fatal flaws in the purported scientific basis for the Department’s proposed revisions to the septic density standards in the Highlands regulations.

As we discussed yesterday morning at the Department’s municipal/county briefing, the USGS study is not reflective of the Legislative standards in the Highlands Act (i.e. to “prevent degradation” – a non -degradation policy – based on “deep aquifer recharge“) that forms the basis of the current standards.

The septic density standards are authorized by the following provision of the Highlands Act ( C.13:20-32 Rules, regulations, standards.; P.L. 2004, c.120):

e. a septic system density standard established at a level to prevent the degradation of water quality, or to require the restoration of water quality, and to protect ecological uses from individual, secondary, and cumulative impacts, in consideration of deep aquifer recharge available for dilution;  (emphasis supplied)

The USGS methodology is spatially biased in selection of sampling data locations. It is statistically biased in reliance on a median value. It is not reliable as a result of the treatment of the “non-detect” data, which was a significant 23% portion of the total data, and had a huge MDL value range “which ranged from 0.020 to 10.0 mg/L“. Classifying a data as “non-detect” when the MDL is as high as 10 mg/L is absurd.

The USGS also fails to note significant DEP concerns about data quality and lack of QA/QC expressed in prior DEP Reports on Private Well Testing Act.

The USGS not only fails to note DEP’s prior concerns about data quality and lack of QA/QC, it contradicts those prior DEP findings by claiming that DEP certified private labs conduct rigorous QA/QC.

USGS also notes that PWTA data have significant limitations because they do not provide data on aquifers or depth of wells. This allows PWTA data on shallow residential wells that are heavily impacted by anthropogenic nitrogen loadings to contaminate the dataset.

The USGS study itself even acknowledges a strong spatial bias. This bias directly contradicts the Highlands Act standards and non-degradation policy. USGS wrote:

“There is spatial bias in well locations because many sampled wells are located in urban areas; thus, a bias in median nitrate concentrations was expected. Over-representation of urban and possibly agricultural areas and under- representation of forested areas in the combined NWIS-PWTA database must, therefore, result in higher median nitrate concentrations for all water samples than the actual median concentration for groundwater underlying the entire Highlands Region or any Area, Zone, or Area:Zone combination. “(p.14)

The original DEP density standards were based on background nitrate groundwater quality in “pristine” (i.e. forested) areas and locations that were not impacted by anthropogenic nitrogen loadings.

The original locational data bias reflected the Act’s policy to prevent degradation of groundwater quality – known as a “non-degradation standard” and the Legislature’s finding that existing DEP regulations were not sufficiently protective:

“… The Legislature finds and declares that   …  the existing land use and environmental regulation system cannot protect the water and natural resources of the New Jersey Highlands against the environmental impacts of sprawl development.”

To understand the Legislature’s findings and intent regarding DEP’s current regulatory framework, you need to understand the DEP’s nitrate dilution approach PRIOR to passage of the Act – which the Act sought to strengthen.

The DEP’s nitrate/septic approach prior to the Act that the legislature sought to strengthen included the following significant limitations:

1) the antidegradation policy in the GWQS, which allowed degradation of 50% of the difference between local background and the 10 mg/L GWQS, typically resulting in a nitrate target value of 5.5 mg/L. and lot sizes of 4-6 acres;

2) the nitrate dilution and recharge parameters of NJ GSR 32, which were deemed inappropriate because they did NOT accurately reflect the geology and recharge characteristics of the Highlands region:

3) The GSR 32 method was also rejected by the Legislature because it failed to consider cumulative impacts, allowed too much water quality degradation, did not include a nitrate target based on natural background conditions, and generally produced lot sizes in the range of 6 – 10 acres, which were deemed to be inadequate to protect the water resources and large blocks of forests in the region.

Here is the DEP Guidance for how that model was implemented in the DEP permit program for 50 or more septic units: (note nitrate targets of 5.2 mg/L – to 8 mg/L):

  • Calculating Lot Density Using the Model – …. The background ground water quality for NO3-N is 0.4 mg/L and the nitrate target is 5.2 mg/L, to be consistent with N.J.A.C. 7:9-6 (unless background ground water quality is determined on a site-specific basis through a ground water sampling plan as approved by the Department in writing or when projects are located in Class I aquifers as defined in N.J.A.C. 7:9-6);
  • Step 2: Determining the total area of the residential development

    When using clustering, please be aware that in order to protect each individual home form possible contamination from their well or their neighbor’s well, the target is 8 mg/L, which is below the drinking water standard of 10 mg/L

Let me know if you want additional details on all that. As I noted, as you may recall, when I was with the DEP, I represented DEP on the OLS legislative team and drafted these sections of the introduced version of the Highlands Act, S1.

I am copying Senator Smith so that he can be made aware of the conflicts between DEP’s scientific basis and legislative standards and legislative intent expressed in the Highlands Act

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Christie DEP and Highlands Council To Present Septic Density Rollbacks Tomorrow

April 20th, 2016 No comments

DEP Meeting Invitation Is A Pro-Development Dog-Whistle

Highlands Council Meeting Will Discuss

Tomorrow (4/21/16) morning at 9 am in the Parsippany-Troy Township Municipal Building
1001 Parsippany Boulevard, Parsippany, Christie DEP political appointees will brief municipal and County officials on DEP plans to weaken and retreat from the strongest water quality protection and development restriction in the Highlands, known as the “septic density standards”.

Those standards are designed to prevent pollution of groundwater. The standards strictly limit development, allowing 1 septic system per 88 acres in forested areas and 1 per 25 acres on agricultural lands.

Those interested in the substance, see these posts:

Later in the afternoon, at 4 pm the Highlands Council has the septic density standard on the Agenda as a “Chairman’s Report” item.

I strongly urge all Highlands advocates to attend both meetings and send a message to Governor Christie, the DEP, the Highlands Council, and local officials that we will not tolerate rollbacks in clean water protections.

My sense is that the local officials meeting is closed to the public, so it would be a great target for a protest. HINT!

The DEP invitation to local officials was cryptic:

Good Afternoon Municipal and County Official,

Please join us for a Highlands meeting to discuss DEP’s proposed changes to the Highlands Septic Density Rule and what it may mean to your Municipality or County.

Given the significance, controversy, and complexity of the land use planning and water quality protection and regulatory implications, it is amazing that DEP failed to provide a meeting agenda and supporting materials with that cryptic invitation.

No mention of what “DEP’s proposed changes” might be.

How can local officials be informed and prepared for such an important meeting?

DEP is intentionally keeping local officials in the dark so they can avoid criticism and spring a fait accompli on them.

That is the OPPOSITE of sound regional planning and transparent regulatory development. It is a completely unprofessional and manipulative practice.

But everyone knows DEP is doing a dog-whistle – to mask rollback of the septic density standards and signal an intent to promote more development in the Highlands.

Besides, how could DEP communicate their actual policy objectives:

Something honest like this would just never do:

Dear Municipal and County Official,

Please join us for a meeting where we will outline our plans to weaken groundwater protections and promote more development in the Highlands Preservation Area.

What this will mean for your community is: more water pollution; loss of forests, farms and open space and rural and historic character; loss of wildlife habitat; rising property taxes to pay to provide schools and local services to new development; and more air pollution, traffic and congestion.

Attached please find the new septic densities for your town, based on our new model – including before and after buildout analyses so you can understand the growth impacts and plan accordingly.

After tomorrow’s meetings, we will explain the significance of DEP’s proposed changes to the septic density standards – for now, just think how you’d feel if your local government up zoned ALL the land in your town from 88 and 25 acre lot size zoning to 4 – 10 acre zoning.

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Gov. Christie & Bob Martin Celebrate Earth Day

April 19th, 2016 No comments

Duck Island – Epitome of Malign Neglect and Incompetence

“No time to wallow in the mire”

The Christie DEP just issued an Earth Day press release (reader warning: obscene lies).

We write policy stories and have exhaustively documented the Christie DEP record, so today we respond with a visual essay that captures the essence of the Christie environmental record and conveys my disgust and contempt for it – and his DEP Commissioner Bob Martin.

Shots are all of State public lands and a Trenton City park – taken last week on Duck Island, along the Delaware River in Trenton – about a mile from DEP HQ and the Gov.’s Office. Maybe they could get off their asses and cleanup the mess instead of issuing self serving press releases and taking credit for media.

Duck I1

Duck I2

Duck I3

Look beyond the garbage – that’s the PSEG fossil plant in the background:

Duck I4

Duck I5

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A Heartfelt Note To My New York Friends

April 15th, 2016 No comments

Go Out On Tuesday and Vote For Bernie Sanders

Restore a NY Political Legacy

Climate change is a “global environmental crisis of unprecedented urgency

FDR's home and Presidential Library – he called the estate “Springwood”

FDR’s home and Presidential Library – he called the estate “Springwood”

In last night’s debate [Full Trancript], Bernie Sanders called climate change a “global environmental crisis of unprecedented urgency” and highlighted the key challenge of our time:

right now, we have got to tell the fossil fuel industry that their short-term profits are not more important than the future of this planet.

Sanders called for a tax on carbon and bans on fracking and extraction of fossil energy resources (coal, oil, gas) on federal lands, the first step in a “Keep it in the Ground” strategy. Scientists warn that at least 80% of known fossil reserves must be kept in the ground if we are to avoid catastrophic warming.

He spoke passionately and clearly conveyed the critical sense of urgency:

Let me reiterate. We have a global crisis. Pope Francis reminded us that we are on a suicide course. Our legislation understands, Errol, that there will be economic dislocation. It is absolutely true. There will be some people who lose their job. And we build into our legislation an enormous amount of money to protect those workers. It is not their fault…

It is not their fault that fossil fuels are destroying our climate.

But we have got to stand up and say right now, as we would if we were attacked by some military force, we have got to move urgency — urgently and boldly.

Sanders put the climate challenge in historical perspective, and notably explicitly linked it to FDR’s New Deal and economic conversion for WW II:

What you do do is say that we are going to have a massive program — and I had introduced — introduced legislation for 10 million solar rooftops. We can put probably millions of people to work retrofitting and weatherizing buildings all over this country.

(CHEERING)

Saving — rebuilding our rail system.

(APPLAUSE)

Our mass transit system.

(APPLAUSE)

If we approach this, Errol, as if we were literally at a war — you know, in 1941, under Franklin Delano Roosevelt, we moved within three years, within three more years to rebuild our economy to defeat Nazism and Japanese imperialism. That is exactly the kind of approach we need right now.

Lead the world.

He also slammed Hillary Clinton for her efforts at the State Department to promote fracking around the world and the lack of US leadership on international climate control diplomacy, including the Paris agreement, which the father of climate science Jim Hansen called a “fraud”.

If that was all Sanders said all night, he would deserve to be President.

Obviously, Sanders could not summarize his full platform on energy, climate and the environment, so here is a link to read it and bulleted excerpts of the policy initiatives outlined:

  • Reclaim our democracy from the billionaire fossil fuel lobby
  • Accelerate a just transition away from fossil fuels
  • Invest in clean, sustainable energy
  • Revolutionize our electric and transportation infrastructure
  • Lead the international community to solve climate change and prevent international conflict

The stakes are very high – could not be higher – and the time to act boldly is short.

The need to fundamentally change the direction of the politics and economics of this country could not be greater.

This is the last opportunity we may have to try to meet the challenges we face – certainly the last of my lifetime.

Please get out and vote for Bernie on Tuesday! – and bring your family, friends, and neighbors!

I was born and grew up in New York. So did my mother and father. I was weened on the Revolutionary history, classic literature (from Irving’s Headless Horseman to Rip Van Winkle and Natty Bumpo), grand estates, and the rustic Hudson River school of painting and culture. The NY political tradition of FDR and the New Deal was gospel in our home. (Even Nelson Rockefeller got respect – and my grandfather worked on his Pocantico Hills Estate.)

I was blessed by countless hours on the glorious Hudson River and spent many days rambling the woods and estates in the historic Hudson Valley. We vacationed in the Adirondacks and Catskills and spent many weekends in Harriman Park and Bear Mountain. I saw Mickey Mantle play in Yankee Stadium (first Major League game I  ever went to as a Little Leaguer). School trips would take us to incredible places like Broadway plays, the UN, Rockefeller Center, and the Empire State building. I still recall the 1964 World’s Fair.

I loved New York before it was a tourism marketing slogan.

I went through NY public schools, began my education at Clarkson College up in the north country, graduated SUNY Binghamton and spent 2 years at Cornell’s graduate school – my thesis topic was on land use controls to protect the river valley aquifers of the southern tier (Big Flats).

I’ve lived in the lower Hudson Valley (Westchester & Putnam counties), the north country (Potsdam), the Southern tier (Binghamton) and the Finger Lakes region (Ithaca) for more than 25 years of my life. Good friends went to school in New Paltz, Cobleskill, Elmira, Fredonia, Syracuse, and Plattsburgh and I spent a lot of time in those places.

One of my Mom’s proudest achievements was to have worked with the Mario Cuomo administration as School Board President on a plan to cleanup and reuse the old GM plant in then North Tarrytown (now Sleepy Hollow).

I know and love the place. And I’ve got a lot of friends I grew up with still living there. So, I must appeal to my New York friends.

[PS – Hillary Clinton is no New Yorker! She’s a Wall Street Carpetbagger. Bernie is too much a gentleman to have pointed that out.]

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