Archive for August, 2019

We Celebrate A Decade of Truth-Telling

August 31st, 2019 No comments

Wolfenotes founded in principle, calling out media cowardice

Today is the 10th anniversary of Wolfenotes.

We’ve posted 2,925 pieces and hundreds of photos over that decade.

Google analytics tells me that 583,057 readers have read 721,969 pages, spending an average of 3 minutes and 11 seconds per page!

Our first post was titled:

That post included excerpts from Sheldon Wolin’s book “Democracy Incorporated: Managed Democracy and the Specter of Inverted Totalitarianism(excellent review here) and Chris Hedges, two writers whose critiques have been validated and only become more important since.

We reminded readers that I.F. Stone famously said, all governments lie“.

That post also told the story about how we were “fired” from writing a column at the Newark Star Ledger’s citizen journalism page known as “NJ Voices“. Star Ledger editors invited me to write that column in 2007, with a broad mission with just this caveat:

Wolfe will write about environmental issues: policy, media, and politics. The views expressed here are solely his own.

I began in earnest, writing mostly non-controversial posts that focused on Trenton legislative and regulatory affairs, with occasional landscape photo posts. I was able to transfer the text of those posts from 2007-2009 over to Wolfenotes, but unfortunately NJ.Com deleted all the lovely photos I posted, including the ugly and controversial ones showing chemical plants and toxic waste sites polluting nearby schools and daycare centers.

Anyway, the story of how I got “fired” from writing that column is instructive. Let me explain.

The NJ Voices column was a volunteer gig. I had complete freedom. I decided what I would write about. The Star Ledger had no no pre-publication editorial control or oversight over what I posted.

My posts appeared under the Star Ledger’s banner, so readers could not distinguish my posts from real journalism and editorials written by professionals at the paper.

I suspect that caused confusion and problems, especially as my posts became more edgy, critical of the media, and political. Here are examples of that, where we expose and call out corrupt amendments to gut  a global warming bill sponsored by Senate President Sweeney:

The guys in ski masks with Uzi’s weren’t parading on the tarmac demanding a flight to Cuba.

They were wearing $600 suits, talking on cell phones, packing Bradbury’s, and asking legislators for amendments to the bill.

This was the latest Trenton spectacle yesterday, before the Senate Economic Growth Committee on a substitute version of Senate global warming bill No. 2976 (Sweeney/Smith)

Sponsor Senator Sweeney summarized the bill in 30 seconds. He characterized the extensive closed door negotiations on the bill as “mud wrestling.” Department of Environmental Protection (DEP) Commissioner Lisa Jackson – only half in jest – was careful to distance herself on the record by testifying that “I watched the mud wrestling but did not participate in it”. It only got uglier from then on.

I can imagine that this caused the “journalists” and editors at the Star Ledger to squirm.

Which leads to the NJ Voices post that got me “fired” and ended my column there.

On June 10, 2009, I posted a column about proposed federal legislation The Detainee Photographic Records Protection Act of 2009″ – sponsored by NeoLiberal Senator Joe Lieberman – that sought to amend the Freedom Of Information Act (FOIA) to exempt the photos from the Abu Graib torture scandal.

A bill to provide that certain photographic records relating to the treatment of any individual engaged, captured, or detained after September 11, 2001, by the Armed Forces of the United States in operations outside the United States shall not be subject to disclosure under section 552 of title 5, United States Code (commonly referred to as the Freedom of Information Act).

The bill was supported by President Obama (that former Constittutional law professor).

The Abu Graib scandal had already broken and those horrific photos were already published in newspapers across Europe and the Middle East, but initially not in US papers and not republished in light of the Lieberman bill.

I thought that the US media’s failure to publish those photos and criticize the Lieberman bill was a cowardly case of self censorship by US editors.

I thought the Lieberman legislation to prevent release of those photos to the public was a terrible idea and a form of censorship, so I wrote a column about that.

I compared the US censorship to Orwell’s classic essay “Politics and the English Language” (1946). For visual effect, I posted a photo of a homeless man sleeping on a park bench with the caption: “Thrifty Individual Reducing Carbon FootPrint”.

In the post, I was careful to include a reader warning of “graphic content”. I did not publish the photos themselves, but merely  included a link to the photos that were published in European papers under the line” “Look at what they don’t want you to see”.

Well, not 10 minutes after that post went live, I got an angry phone call from the Star Ledger’s Editor (Jim Willse). He screamed at me, called me reckless and irresponsible, said I couldn’t be trusted and that I was banned and my column terminated.

Of course I gave it back to him as hard as he came at me. I called him a coward – and worse.

So, I’m proud of the fact that Wolfenotes was born in controversy, fighting the lies and cowardice of the mainstream media.

I hope I’ve lived up to that moment in the 10 years since.

(as we wrote) We have tried, as Vaclev Havel wrote, to live in truth:

… you do not become a “dissident” just because you decide one day to take up this most unusual career. You are thrown into it by your personal sense of responsibility, combined with a complex set of external circumstances. You are cast out of the existing structures and placed in a position of conflict with them. It begins as an attempt to do your work well, and ends with being branded an enemy of society. […]

By breaking the rules of the game, he has disrupted the game as such. He has exposed it as a mere game. He has shattered the world of appearances, the fundamental pillar of the system. He has upset the power structure by tearing apart what holds it together. He has demonstrated that living a lie is living a lie. He has broken through the exalted facade of the system and exposed the real, base foundations of power. He has said that the emperor is naked. And because the emperor is in fact naked, something extremely dangerous has happened: by his action, the greengrocer has addressed the world. He has enabled everyone to peer behind the curtain. He has shown everyone that it is possible to live within the truth. Living within the lie can constitute the system only if it is universal. The principle must embrace and permeate everything. There are no terms whatsoever on which it can co-exist with living within the truth, and therefore everyone who steps out of line denies it in principle and threatens it in its entirety.


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Gov. Murphy’s Highlands Council Nomination Announcement Hits A New Low In Cynical Diversions

August 30th, 2019 No comments

Timed To Change The Subject And Garner Green Praise

Murphy Yet To Secure Senate Confirmation of Pinelands Nominees

A few blunt thoughts on Gov. Murphy’s nominations to the Highlands Council.

First for some context.

The Governor’s move comes at a time when his administration is under severe criticism for missteps on various environmental crises, including: the Newark lead scandal; the toxic algae bloom; failure to make real progress on seriously tackling climate change, failure to regulate GHG emissions or secure real reductions in greenhouse gas emissions, and failure to reject numerous pending fossil infrastructure pipelines and power plants (as environmentalists continue to ramp up their demand that the Gov. impose  a moratorium on new fossil infrastructure).

The Governor has been in office for nearly 2 years, during which time he failed to nominate Highlands Council members. He has been criticized for that failure. So, why make that move now? (see our recommended appointments, none of which have made Murphy’s grade).

The Murphy DEP has not restored Highlands regulatory rollbacks by Gov. Christie’s DEP, or terminated controversial Christie DEP logging projects in Highlands forests. The Murphy administration has not engaged any new policy initiatives to strengthen and improve land use and water resource protections in the Highlands. Murphy’s appointment of longtime democratic political operative Lisa Plevin as Executive Director – a trusted loyal ally, not an independent credentialed professional – was not based on a national search for a professional regional planning leader. (Among many other things, I was in the room when Lisa Plevin strong armed the people of Pompton Lakes on behalf of her boss, Judy Enck, EPA Region 2 Administrator – it was a shameful disgrace).

And check out the background on the Highlands Council’s new Chief Legal Counsel:

Prior to joining the Highlands Council, LaRocca spent more than a decade providing in-house legal counsel on all aspects of environmental and safety compliance for a Fortune 500 consumer products company. Her experience also includes work with two of New Jersey’s top law firms, focusing on environmental and real estate matters.

This appointment is a far cry from Tom Borden, who resigned in protest under the Christie regime!

Immediately following the vote, Tom Borden, Deputy Director and Chief Counsel to the Council, resigned in protest, unable to continue in that role “in good conscience” he said.

So, the Gov.’s commitment to the Highlands is, at the very best, highly questionable.

The Gov.’s nominees have been praised by his band of green cheerleaders and sycophants,, including the NJ LCV, Clean Water Action and the Highlands Coalition.

The operative political and media dynamics are no different than when Trump, facing criticism, diverts the press and feeds his base – of climate deniers, religious zealots, the NRA or White Power racist – and garners praise for some twisted tweet or policy move by the Trump administration.

So, given that context, these nominations must be viewed as political and media moves as much as bona fide nominees to lead the Highlands Council.

Second, Gov. Murphy hasn’t gotten his Pinelands nominees confirmed  – not all of them are are stellar – and there is no evidence that he is willing to take on a fight with Senate President Sweeney to secure their confirmation.

That failure does not instill confidence.

I’ll eat my hat if these Highlands nominees get confirmed by the Senate, although that’s possible, because Sweeney and his boss George Norcross don’t have interests in the Highlands like they do in the Pinelands. There is also more support for the Highlands among Democrats in the Senate than in the Pinelands.

Third, the nominees themselves, while far better than Gov. Christie and prior Democratic administrations, raise concerns.

  • Dan Van Abs

Dan had a long career as a manger of water resource programs at the DEP. I’ve had many interactions with him. Van Abs is not a leader. He did virtually nothing with his career at DEP. Instead, he was an impediment to reform and a consummate turf protecting process dominated bureaucrat and careerist. He left DEP to head the science program at the Highlands Council and similarly did nothing there. He’s now at Rutgers and still playing it safe as a technocrat and pseudo-academic. Dan lacked the fire in the belly to fight the bureaucratic wars – it takes fire in the belly and a spine to fight the far larger policy and political wars.  I assume you’ve read his op-ed’s at NJ Spotlight, where he’s a regular contributor and purveyor of conventional wisdom. Politicians have appointed Dan to various do nothing bodies, like the Clean Water Council.

Dan stays well between the lines laid down by the powers that be in Trenton. In that regard, he’s a well qualified but safe nominee and won’t ruffle any feathers. Don’t expect Dan to pioneer any major new initiatives.

  • Wynnie-Fred Victor Hinds

Wynnie is said to be a member of the Newark Environmental Commission. Anyone in a position to know in Newark who has not blown the whistle is troubling. I do not know the woman and hate to criticize moves the promote diversity and justice, but this one is a bridge too far.

On policy substance, I see nothing in her Linked background that indicates academic training or experience in the Highlands, or on land use or water resource issues.

Equally troubling, since I last accessed her linked page just a few days ago, she has changed the “interests” section, by deleting various business and financial interests (including Bill Gates, among others). Fortunately, I took a screen shot (on 8/27/19)

Screen Shot 2019-08-27 at 12.02.52 PM

Compare those “interests” to what’s posted today (8/30/19) – Adam Grant and Richard Branson are the only shared interest! Gone are all the other corporate money types.

Screen Shot 2019-08-30 at 9.57.07 AM

So, I see that as scrubbing her background, a dishonest move.

I also note that she is a member of the Board of Clean Water Action – This is the group that endorsed Gov. Christie in 2009 and provided green cover for him for 2 years of his first term. I have zero respect for their “transactional” approach to politics and public policy. Given these facts, the nomination creates the appearance of a quid pro quo, as CWA endorsed Gov. Murphy and – in an unseemly pattern – regularly is quoted in the Gov.’s own press releases praising the Governor.

[Update: A reader advised that Hinds also is on the Board of the Highlands Coalition and is employed by ANJEC as Community Outreach Manager. Contrary to my initial assessment, that provides some Highlands and environmental experience, but not much. But it also reinforces my sense that the nomination was throwing a bone to the Gov.’s political supporters. ~~~ end update]

  • Bill Kibler

Bill is highly competent and a solid choice, with knowledge and experience in the Highlands on water resource and land use issues. He’s a strong communicator, committed to the Highlands and the public interest, and very good to work with. But, it is a stretch to call him an “activist”. Bill is a mainstream ANJEC type person with a local focus, who spent perhaps too much time in ineffective watershed planning collaborations. I get the sense that Bill doesn’t like to make waves. But, he’s far, far better as a man and professional than many that he associates with and should be confirmed quickly by the Senate.

[Update: Kibler also is on the Board of the Highlands Coalition]

So, given all this, I am troubled that the Governor’s move is driven by political manipulation as much as policy. I see this as a political act and symbolic gesture more than a serious commitment.

And the timing suggests a new low in cynical governance and news management.

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Gov. Murphy Quietly Signs Major Redevelopment Law – No Standards To Address Greenhouse Gas Emissions, Energy Efficiency, Renewable Energy & Environmental Justice

August 27th, 2019 No comments

Vulture Redevelopment – All Subsides, No Sticks

Building Sector A Significant Source of Greenhouse Gas Emissions

Another Huge Missed Opportunity To Address Climate Crisis

Source: NJ DEP (2017) - link below

Source: NJ DEP (2017) – link below

NJ Gov. Murphy quietly signed a bill into law (A1700) that provides “incentives” (AKA public subsidies) to redevelop abandoned or under-utilized lands by expanding the criteria for municipalities to designate lands as “in need of redevelopment“.

According to the bill’s statement:

This bill, as amended, would amend the “Local Redevelopment and Housing Law,” P.L.1992, c.79 (C.40A:12A-1 et seq.), to specify that a municipality may determine an area to be in need of redevelopment if the area contains buildings that are used as, or were previously used as, a shopping mall, a shopping plaza, or a professional office park, and the buildings have been vacant, or partially vacant with less than 50 percent occupancy, for a period of at least two years. This bill will allow municipalities to use the powers authorized under Article VIII, Section III, paragraph 1 of the State Constitution to redevelop these “stranded assets.” By specifying that a vacant shopping mall or office park is an area in need of redevelopment, a municipality can offer potential private sector partners redevelopment tools such as tax exemptions and abatements to encourage them to repurpose these stranded assets.

There was no fiscal note or impact statement on the bill and I didn’t research this legislation and listen to the testimony, but experience suggests the bill will have significant impacts on redevelopment, local budgets, and all the adverse impacts associated with development: e.g. air & water pollution, traffic, and increased greenhouse gas emissions.

The NJ State Planning Commission has a GIS data layer that maps these areas, but I lack software to access it. Have at it GIS geeks! Keep in mind that the bill will expand these existing designated areas greatly and that the actual future impacts are not knowable because there is no statewide inventory of these parcels. The State provides the typical huge caveats to those data and maps:

Distribution Liability: The State of New Jersey provides this product “as is”. The State makes no guarantee or warranty concerning the accuracy of information contained in the data. Also, the State makes no warranty, either expressed or implied, regarding the condition of the product or its fitness for any particular purpose. The burden for determining fitness for use lies entirely with the user. Although these data files have been processed successfully on computers at the State, no warranty is made by the State regarding the use of the data on any other system, nor does the fact of distribution constitute or imply such a warranty.

NJ has substantial older industrial areas, deteriorating first generation inner ring suburban sprawl,  and run down vacant office parks, shopping strip malls, and other lands the bill applies to.

The building sector is a significant source of greenhouse gas emissions. According to DEP’s Greenhouse Gas Emissions Inventory (2017 update), residential, commercial and industrial buildings account for at least 31.4% of total emissions (see chart above).

The Gov. has made numerous promises to reduce greenhouse gas emissions.

The BPU draft Energy Master Plan suggests the need to establish new energy related building codes, including not only for new buildings, but for redevelopment and retrofit of existing buildings.

The BPU Energy Master Plan has an “overarching strategy” to:

Reduce Energy Consumption and Emissions from the Buildings Sector

The Gov.’s approval of the redevelopment legislation completely ignores the BPU draft EMP strategy for buildings:

Strategy 4: Reduce Energy Use and Emissions from the Building Sector. Buildings are responsible for a combined 61.7% of the state’s total end-use energy consumption. Given this, the building sector should be largely decarbonized and electrified by 2050 with an early focus on new construction and the electrification of oil- and propane-fueled buildings. We must expand and accelerate the current statewide net zero carbon homes incentive programs for both new construction and existing homes, study and develop mechanisms and regulations to support net zero carbon new construction, and develop EV ready and demand response ready building codes for new multi-unit dwelling and commercial construction. We must also develop a transition plan to a fully electrified building sector, including appliances like electrified heat pumps and hot water heaters.

Yet despite the need to reduce GHG emissions from the building sector, including the need to upgrade energy related building codes; install energy efficiency and renewable energy; and phase out fossil energy, the bill is silent on energy and greenhouse gas emissions and does nothing to address the need for stronger building codes.

Similarly, redevelopment provides opportunities to integrate a host of climate policies, including zero carbon transportation (pedestrian, bicycles, electric vehicles), public transit, affordable housing, enhanced stormwater management, water efficiency, micro-grid/energy storage, and urban forestry to sequester carbon and reduce urban heat island effect. None of that was even on the table during consideration of this bill, never mind included in the bill.

Thus, the bill is another huge missed opportunity to respond to the climate crisis.

The bill also contradicts Gov. Murphy’s opposition to excessive public subsidies to economic development and Executive Orders to promote Environmental Justice (like climate change, there is nothing in the legislation about environmental justice and disproportionate and cumulate impacts). Hypocrisy is too generous a term.

The public gets nothing back for the subsidies – incentives – including  “tax exemptions and abatements”.

The fact that Gov. Murphy signed the bill strongly suggests that he is not serious about addressing the climate crisis and reducing greenhouse gas emissions – or really implementing climate or environmental justice policies.

[End Note: The bill was sponsored by Assemblyman Dancer, who was the driving force behind the sham sewer plan in New Egypt. I think that portions of un-sewered New Egypt were designated “in need of redevelopment” (please correct me if I’m wrong on this).

Another potential abuse of this designation power is illustrated by the redevelopment that amounted to racist ethnic cleansing at the Gardens in Mt. Holly.

So not only does the law fail to address climate and environmental justice, it fails to reform known egregious abuses of prior law.  ~~~ end note]

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Murphy DEP Issuing Permits That Allow Industrial Polluters to Emit Millions Of Pounds Of Carcinogenic Hazardous Air Pollutants Without Adequate Consideration of Health Impacts or Community Involvement

August 23rd, 2019 No comments

A Guide To Protecting Your Health

Paterson, NJ

Paterson, NJ

Often, the reliance on pollution control technology is based on economics, resulting in DEP – without your knowledge or consent – trading off increased risks to your health for reduced industry compliance costs. Are you OK with that? 

The Murphy DEP is issuing hundreds of air pollution permits across the state of NJ that allow industrial polluters to emit millions of pounds of hazardous air pollutants.

Many of these hazards air pollutants cause cancer.

Many of the industrial polluters are located in close proximity to residential neighborhoods, schools and hospitals, etc, where “sensitive receptors” are exposed to polluted ambient air quality.

Many of these communities are densely populated, many with significant populations of poor, minority and/or disadvantaged people who bear a disproportionate pollution burden, and some are DEP designated “environmental justice” communities. (DEP recently engaged an EJ process, but, based on prior experience, it won’t address all these scientific, regulatory and policy flaws and issues I outline below. And the US Supreme Court’s Sandoval decision makes it virtually impossible to enforce a “disparate impact” discrimination environmental justice violation under the US Civil Rights Act, a bad decision that overrides a favorable US District Court environmental case we wrote about in Camden, NJ).

The communities in which these permits are issued have virtually no knowledge of or participation in the permit process (DEP recently quietly adopted a highly technical and useless webpage):

major industrial air polluters - Source: NJ DEP

major industrial air polluters – Source: NJ DEP

In contrast, the polluters are provided unlimited access to DEP technical staff and managers and are well represented by hired guns: engineers, lawyers and lobbyists.

There are no federal EPA or State DEP health based ambient air quality standards to protect public health from hundreds of hazardous air pollutants, not all of which are even regulated. The permits are based on pollution control technology, not protection of public health.

Often, the reliance on pollution control technology is based on economics, resulting in DEP – without your knowledge or consent – trading off increased risks to your health for reduced industry compliance costs. Are you OK with that? 

The DEP’s permit review and health risk assessment screening processes have several significant flaws, including:

  • failure to consider the cumulative health risks and  impacts of multiple pollution sources;
  • failure to consider the health risks and impacts of multiple pollutants;
  • failure to consider exposure by multiple pathways: air, water, soil, food, occupational;
  • failure to adequately consider health risks and impacts on sensitive receptors, like infants;
  • failure to consider actual ambient air pollution levels in the community (instead DEP limits the spatial consideration of the health risks and impacts at the facility “fence line”);
  • failure to require statistically valid characterization of baseline ambient air quality;
  • failure to advance a “precautionary” public health approach to scientific uncertainty;
  • failure to require safer alternatives, like pollution prevention and state of the art technology;
  • failure to phase out unacceptable hazards, like proposed perc phase out that was revoked
  • failure to consider disproportionate burdens on minority and/or disadvantaged communities;
  • failure to adequately inform and involve the community in permit reviews
  • failure to adopt health based ambient air quality standards for hazardous air pollutants;
  • failure to compile a state-wide database on total HAP emissions and ambient air quality;
  • failure to adequately regulate fugitive emissions and small sources of pollutants;
  • failure to make all of this transparent and understandable to the impacted public; and
  • failure to provide access and technical assistance to the public, while providing abundant assistance and access to polluters, including by the DEP Office of Permit Coordination, confidential pre-application conferences, unlimited and daily access to the DEP permit engineers, and frequent access to DEP managers.

In order to provide assistance to concerned citizens, many of whom may be totally unaware of this situation, I decided to submit last minute comments on a DEP proposed draft air pollution permit. These comments can provide a template for citizens to ask DEP tough questions and hold polluters accountable.

I submitted these generic comments in question form on the DEP draft permit for the NuSTAR facility because I learned about the draft permit just hours before the public comment period closed earlier today (8/23/19) and because it was the only draft permit o the DEP website where the public comment period was still open (the rest were closed).

I urge people and environmental groups who are interested in protecting their health from these industrial hazards air pollutants (HAPs) – many of which are carcinogenic and/or have other serious adverse health effects – to visit the DEP air permit “public notice” website to monitor DEP permit activity and participate in the permit review process.

Here is the “Technical Manual” under which DEP conducts reviews – Technical Manual 1003 – Guidance on Preparing a Risk Assessment for Air Contaminant Emissions (probably the most important environmental document you never heard of).

Here is a template of the kind of questions to ask DEP:

I submit the following comments on the DEP’s proposed draft permit for NUSTAR, Paulsboro:

1. I request that DEP hold a public hearing in Paulsboro and explain this draft permit to the community and provide a meaningful opportunity for the public and community to review and comment on it.

The basis for this request is that there is significant public interest in air quality, hazardous air pollutants, and chemical risks in Paulsboro, given the density of petro-chemical mobile and stationary sources, a history of plant upsets, ongoing permitted emissions, fugitive emissions, catastrophic accidents and health impacts.

2. I request that the DEP extend the public comment period by 90 days to accommodate a public hearing and allow for informed, meaningful public comment.

3. According to the draft permit:

“Emission Unit U100/OS – Stack height above ground shall be raised from 20 ft to 35 ft based on the Facility-Wide Air Toxics Risk Assessment dated 3/22/2019, to reduce the benzene cancer and non-cancer short-term risk at the facility fenceline.”

Based on this statement, I ask the following questions and make the following comments:

a) what were the numeric risks to human health quantified by the Facility-Wide Air Toxics Risk Assessment ? Those risks should be disclosed to the community. The draft failed to do that.

b) The point of compliance appears to be the “fence line”. Did the  Facility-Wide Air Toxics Risk Assessment  analyze risks beyond the fence line? If so, why were those risks? If not, why not?

The Department must analyze health risks to the nearby sensitive residential receptors beyond the fenceline. It appears that the draft permit fails to do that.

c) It appears that the risks are driven by benzene. Did the  Facility-Wide Air Toxics Risk Assessment quantify cumulative risks based on multiple hazardous air pollutants? If so, what were the results? If not, why not?

The Department must analyze cumulative risks of multiple hazardous air pollutants.

d) Did the Facility-Wide Air Toxics Risk Assessment assess risks based on actual ambient air quality data? If so, what were ambient conditions and where were they measured?

The Department must assess risks based on actual ambient data that is QA/QC valid and statistically representative of ambient conditions.

e) How was the public informed and allowed to participate in the development and review of the  Facility-Wide Air Toxics Risk Assessment ?

The Department must involve communities in the science and permit decisions that effect their health.

f) Apparently, the only risk reduction measure considered and imposed by the Department was to raise the stack height by 15 feet. This is improper and not protective of public health. On what basis was the new stack height chosen?

Did the Department consider other alternatives, including pollution prevention? Process modifications? State of the art pollution control technology?

The Department is required to consider these more protective alternative risk reduction measures.

g) Did the  Facility-Wide Air Toxics Risk Assessment  consider risks of exposure by sensitive receptors, including infants and pregnant women?

The Department must consider risks and protect the most sensitive receptors.

4. The DEP relied on a Facility-Wide Air Toxics Risk Assessment. That assessment was conducted in accordance with a DEP Technical Manual.

The DEP Technical Manual was not adopted formally as a regulation pursuant to the NJ Administrative Procedures Act.

Given this failure and the highly substantive public health and economic implications of application of the Technical Manual, the DEP draft permit violates the NJ Supreme Court’s decision in Metro-Media. Metromedia, Inc. v. Director, Div. of Taxation 97 N.J. 313 (1984)

Accordingly, the Technical Manual may not be enforced until it is formally promulgated as a regulation.

The draft permit is therefore null and void as it violates a Supreme Court ruling and therefore should not be issued in final form.



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Murphy DEP Issues Another Permit To A Major Air Polluter – No Limits On Greenhouse Gas Emissions

August 23rd, 2019 No comments

McWane Phillipsburg Foundry Continues To Spew Toxic Mercury

DEP Lax Oversight Of Criminal Corporation

The Murphy DEP just renewed the air pollution permit for the notorious environmental criminal corporation McWane for their Atlantic States foundry in Phillipsburg, on the Delaware River.

The permit has fatal flaws, including: 1) failing to impose any limits on greenhouse gas emissions; 2) allowing the foundry to continue to emit significant amounts of highly toxic mercury 3) relying on certifications of company officials; and 4) relying on lax pollution monitoring.

The McWane corporation previously pled guilty to felony environmental crimes prosecuted by the US EPA. (see: EPA Summary of Criminal Prosecutions)

I wrote about crimes at their NJ facility back in 2009 (sorry, photos were deleted by the Star Ledger)

McWane’s environmental and labor crimes were the subject of an investigative documentary expose by PBS Frontline “A Dangerous Business”.

Brad Campbell, Commissioner of the McGreevey /Codey DEP cut a deal with McWane that allowed the company to continue to pollute: (Frontline)

In May 2005, McWane and the New Jersey Department of Environmental Protection (NJDEP) announced an agreement under which to avoid fines for emission violations in 2003, the company would invest $9.3 million in upgrades to reduce mercury and other hazardous emissions from its Atlantic States foundry in Phillipsburg, N.J. NJDEP Commissioner Bradley Campbell told The Morning Call (Allentown, Penn.) that the deal was beneficial to the state because the foundry, which agreed to reduce mercury emissions by 90 percent by January 2006, was already in compliance with current regulations. According to McWane, Atlantic States would become the first North American foundry to use state-of-the-art technology to “substantially limit” mercury emissions.

Mercury is a powerful neurotoxin that bioaccumulates in fish – worse than lead – and is particularly a threat to the health and development of babies, including pregnant women and nursing mothers. NJ has a statewide serious mercury contamination problem that has resulted in DEP statewide fish consumption advisories.

Yet despite NJ’s serious mercury problem, the Murphy DEP permit allows McWane to continue to emit 21 pounds/year of toxic mercury, which deposits locally to NJ state waters, including the Delaware River, and bioaccumulates in fish that subsequently poison people and wildlife.

In addition to unacceptable toxic mercury emissions, according to DEP:

The Greenhouse Gas (GHG) emissions from this facility are 570,000 TPY CO2e.

That’s another half a million tons of unregulated GHG emissions, in addition to recent other DEP permits that allow over 6 million tons of unregulated greenhouse gas emissions (see this and this).

Despite McWane’s egregious criminal history, DEP relied on certifications of  McWane officials and provided the company a “permit shield”:

The Responsible Official at the facility has certified that the facility currently meets all applicable requirements of the Federal Clean Air Act and the New Jersey Air Pollution Control Act. Based on this certification, the Department’s evaluation of the information included in the facility’s application, and a review of the facility’s compliance status, the Department has concluded that this air pollution control operating permit should be approved. […]

This operating permit also includes a permit shield, pursuant to the provisions of N.J.A.C. 7:27-22.17. A permit shield provides that compliance with the relevant conditions of the operating permit shall be deemed compliance with the specific applicable requirements that are in effect on the date of issuance of the draft operating permit, and which form the basis for the conditions in the operating permit.

Despite the company’s criminal history and failure to comply with environmental laws, DEP imposed no special conditions to strictly monitor compliance and instead the permit provides lax and unenforceable pollution monitoring requirements, which do not actually measure the actual pollution emitted by the facility:

  1. Where the applicable requirement does not require direct periodic monitoring of emissions, the Department requires periodic monitoring of surrogate parameters sufficient to yield reliable data from the relevant time period that are representative of the facility’s compliance with the permit.

The foundry emits significant amounts of toxic hazardous air pollutants:

The facility is classified as a major facility based on its potential to emit 102 tons per year (tpy) of volatile organic compounds, 115 tpy of carbon monoxide and 108 tpy of nitrogen oxide.

This permit allows individual hazardous air pollutant to be emitted at a rate to not exceed: 0.57 pounds per year (lb/yr) of arsenic, 7.11 lb/yr of cadmium, 8.09 lb/yr of chromium, 111.38 lb/yr of lead, 89.37 lb/yr of manganese, 21 lb/yr of mercury and 8.84 lb/yr of nickel.

Despite significant toxic “hazardous air pollutant” emissions in close proximity to dense residential development and schools, DEP once again found no unacceptable health risks:

A Facility-Wide Risk Assessment was conducted as part of the review of this permit application and health risk was determined to be acceptable to the Department consistent with NJDEP Technical Manual 1003.

So, let’s recap the meaning of this permit:

1) The DEP is a toothless tiger.

2) There are massive loopholes in DEP regulations.

3) The NJ DEP Technical Manual used to assess health risk is seriously flawed.

4) McWane’s historic mercury emissions have injured natural resources by poisoning fish and wildlife with toxic mercury. They should be held responsible and required to compensate the public for extensive Natural Resource Damages (NRD). US Fish and Wildlife Service and NJ DEP have adequate science and clear legal authority to file NRD lawsuits to require compensation.

5) There is virtually no public awareness or participation in major DEP permit and regulatory decisions that impact public health and the environment.

The Murphy DEP has no appetite to reform or strengthen any of these fatal flaws. They are as bad as the Christie DEP.

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