WolfeNotes.com

No Changes To DEP “Environmental Redlining”

Wolfe stands with EJ activists from Camden to demand Corzine Administration stop building schools for poor black kids on toxic waste sites (2008, Trenton State House press conference)

Despite being a longtime advocate of incorporating environmental justice in DEP regulatory programs, I have written several critical posts about the proposed environmental justice bill now of Gov. Murphy’s desk (to read the final version of that bill, see S 232 [2R]).

These posts largely have focused on politics, legislative history, and broad policy issues.

There have been two conflicting versions of the bill this legislative session and both bills have been amended significantly during the course of legislative consideration.

Therefore, given my prior focus and the amendments to the bills, today I’d like to drill down on the substance of the final bill now before the Gov. and talk about what the bill would do and fail to do.

This is part one, where I lay out the major science, regulatory, and policy flaws.

I)  Current Science and Regulatory Requirements Are Ignored

At the outset, let me state the most fundamental flaw in the legislation: the bill completely ignores the current underlying scientific, technical, and regulatory bases that DEP considers in granting the air pollution permits, water pollution permits, land use permits, chemical hazards, drinking water, and toxic site cleanup requirements that are allowing the disproportionate pollution burdens to harm environmental justice communities.

Any serious EJ legislation would have to mandate that DEP change the way it regulates and issues permits.

For example, the key DEP technical and regulatory standards and grounds for issuing air pollution permits include:

• “advances in the art of pollution control” – also known as “state of the art” or SOTA
• risk assessment, including “acceptable risk” and how DEP considers cumulative impacts and disproportionate burdens
• air quality modeling
• emissions monitoring (at the stack)
• ambient air quality monitoring (at the fence line and in the community)
• mitigation and offsets
• a host of legal thresholds & standards for what facilities, processes, chemicals, emissions (potential/actual/fugitive/lifecycle), ambient air quality, and the kind of impacts that are regulated

None of this is a mystery to DEP, Chairman Smith (bill sponsor), or to the environmental justice advocates who negotiated the legislation.

Similarly, a federal judge examined exactly how DEP issued permits and issued an opinion that made extremely harsh critical findings, see:

• 18 Years After Scathing Criticism By Federal Judge For Ignoring “Environmental InJustice”, NOTHING HAS CHANGED AT NJ DEP

In fact, DEP conducted specific research on urban air quality, EJ, and cumulative impacts in Paterson NJ that closely examined all these air permitting issues. I criticized that effort, see:

• DEP Holds Private Briefing with Mayor Today on Paterson Air Study
• DEP Guts Science on Cumulative Cancer Risks in Paterson NJ
• Something Is Rotten in the City of Paterson, NJ

Among the “rotten” things I found were that DEP suppressed findings of that Paterson study, regarding:

• elevated rates of respiratory disease, especially in children
• local industrial emission “hot spots”, located close to homes and schools
• the community was provided a false rationale as to why Paterson was selected for the study
• relationship to prior Camden Pilot study and Environmental Justice concerns
• DEP suppressed consideration of cumulative impact risks presented in the draft report
• DEP downplayed the risks to minimize public health concerns –  DEP spun the health risks to the community
• DEP failed to release industrial emissions inventory
• DEP sanitized Report findings of flaws in DEP air permit database and permit program
• DEP has conducted limited to no followup source track-down investigations and air permit and enforcement to mandate emissions reductions and reduce risks

What is a mystery is how all this could have been completely ignored in the legislation.

Instead of applying the federal judge’s findings and the knowledge gained by DEP’s Paterson cumulative impact/EJ research by amending and reforming these specific technical frameworks that are the causes of the DEP regulatory failures that allow EJ communities to be unduly burdened, the bill relies on a vague, standard-less, undefined and novel “environmental justice impact statement” review process.

The bill grafts an Ill defined and novel process on a seriously flawed substantive DEP permit foundation.

It won’t work.

II)  Lack of Standards To Guide Environmental Justice Impacts Statements Invites Abuse

The “environmental justice impact statement” will be written by the polluter (permit applicant). Th EJ review process will become just another technocratic manipulative process – similar to the current “environmental impact statement” and the “regulatory impact statement” requirements that have become boilerplate and ignored, or – at best – fodder for bargaining and corrupt deal making (e.g. see the Newark Ironbound Community Corporation deal with the Covanta Newark garbage incinerator, brokered by former Newark Mayor Cory Booker.

It amounts to a corporate shakedown that ICC was involved in. The deal provided cover for DEP to renew the permit (instead of shutting it down) and allow the garbage incinerator to continue to pollute in exchange for:

Community Benefits

Environmental Program Funding: [Newark Energy Center] NEC agreed to fund a total of $7 Million Dollars in environmental programs:

Imagine that: a garbage incinerator is allowed to continue to poison a community in exchange for, among others,

• $5 Million Dollars for renovation of Ironbound Stadium

III)  No Standards to Guide DEP Permit Decisions

But the flaws of the bill are not limited to the environmental justice impact statement.

Here is the broad and vague finding and “standard” that DEP is directed to apply and upon which DEP may deny or condition a permit:

a finding that approval of the permit  as proposed, would, together with other environmental or public health stressors affecting the overburdened community, cause or contribute to adverse cumulative environmental or public health stressors in the overburdened community that are higher than those borne by other communities within the State, county, or other geographic unit of analysis as determined by the department

There are no legislative or scientific standards (numeric or narrative) or analytical methods provided in the bill to define, measure, and assess critical novel issues, including:

• public health stressors
• overburdened community
• cumulative environmental or public health stressors
• cause or contribute to
• geographic unit of analysis
• unacceptable risk or impact thresholds or standards

These are all highly complex and controversial scientific and policy issues. And DEP would be flying blind under this legislation.

That invites regulatory gridlock and successful litigation by lawyered up polluters – all while raising false expectations and manipulating the community.

The bill simply will not work without including substantive (preferably numeric) standards – or even a reference to scientific literature or regulatory policies or related legislative  standards.

In Part II (coming soon), we lay out 10 specific flaws with the bill.

[End Note: I was a victim of exactly the same politics and legislative draftsmanship by Senate Environment Committee Chairman Bob Smith in passage of the Coastal and Ocean Protection Council legislation.

In our first meeting where we pitched the bill to Senator Smith, he agreed  to sponsor it, but under 2 conditions:

1) the Council would have no regulatory powers, especially regarding land use;

2) the bill would not amend any environmental law (e.g. CAFRA), provide any new regulatory authority to DEP, or mandate that DEP do anything. The Council was to be a purely advisory body.

The difference is that – unlike the EJ advocates today – we never exaggerated the impacts of the bill; never misled the public; or compromised our principles or integrity and bargained away anyone’s health or community. ~~~ end]