WolfeNotes.com

Lack of DEP Regulation And Enforcement Is Fueling Health Risks and Funding Deficits

Federal Government Has Abandoned Infrastructure Grant Program And State Oversight

NJ Spotlight TV did a cheerleading piece on Friday on water infrastructure funding – where ironically the Murphy DEP trotted out the Christie DEP “asset management” financial spinmeister (and friend of Bob Martin!) and – surprise, surprise! – corporate planning group NJ Future called for the diversion of COVID money (at a time when more than 33,000 NJ residents are dead from COVID).

Context, history and basic questions went unasked and unreported by Spotlight, including:

• who caused the toxic pollution of Moorestown’s drinking water that forced expenditure of millions of public dollars for an advanced treatment plant? (radiological contaminants are likely natural)
• has DEP enforced State laws and made those polluters cleanup and pay for that pollution?
• are there other towns that face these serious public health risks and financial costs?
• How many towns have installed advanced treatment like Moorestown?
• Why should the public pay to cleanup corporate pollution?
• Didn’t US EPA previously fund water infrastructure with GRANTS? What happened to that federal “construction grants” program? (For some history – unfortunately which begins in FY 1987, AFTER the program was killed – see this Congressional Research Service Report. See this CRS analysis, which includes discussion of grants, local affordability, and unregulated chemicals (“emerging contaminants”) of the current Infrastructure Investment and Jobs Act. For the ideological and systemic causes of overall federal decline, read Chris Hedges – a story we touch upon below, with Lockheed Martin)

Those NJ Spotlight TV reporting flaws spurred my brief Twitter outburst.

I then drafted a scathing and detailed policy response, but was unable to finish and post it because I’m off the grid in Rogue River – Siskiyou National Forest (Go Rogue!)

Traveling this morning and stopped to check in and Jon Hurdle’s followup story today diverted me.

So, here are some answers to the questions I posed above, with my quick note to reporter Jon Hurdle and his editor urging followup coverage:

• Moorestown Drinking Water Contamination Highlights Statewide Risks

• Lockheed Martin Gets $100 Million Subsidy, Despite Huge Toxic Pollution 

• NJ Gov. Murphy’s Portrayal Of DEP Commissioner LaTourette As A Public Interest Lawyer Is A Fraud 

Jon – Favorably, you did less cheerleading than Brenda’s Friday TV story, you mention the grant issue, and you alluded to the unregulated contaminant issues.

But you did so for only one chemical and one town, when you know that the problem is statewide in scope and that there are 15 outstanding prior Drinking Water Quality Institute MCL recommendations that DEP has simply ignored (including for the chemical perchlorate, the jet fuel contaminant that is a national story). (Your prior coverage of PFAS has illustrated the statewide issues and lack of treatment, but again, the scope is hundreds of chemicals and their lack of treatment highlights a huge regulatory policy failure.) In fact, there was legislation introduced that would have cured some of these problems by legislatively mandating that DEP adopt MCLs (for the contaminant you favorable quote the Mayor on), but that bill was gutted by its own sponsor (see below for bill numbers, legislative testimony, et al).

In addition to those 15 (where there is science, data, and risk assessment already done), there are also hundreds of unregulated chemicals DEP has found in NJ drinking water – that’s why DEP recommended a “treatment based approach” way back in 2010, but never implemented it. That approach was just again supported by a NJ Spotlight Op-Ed last week by Eileen Murphy, formerly head of DEP’s Division of Science and Research who is fully aware of and worked on these issues at DEP:

“PFAS represent the challenge we face in regulating “emerging contaminants” in general. We cannot rely solely on our current chemical-by-chemical regulatory scheme, especially when so many PFAS have little or no toxicity information. Sixteen years to develop three MCLs out of a list of over 12,000 is inadequate. We must develop multipronged solutions that include restricting the use of toxic chemicals and developing safer alternatives; developing innovative remediation technologies to clean up contaminated sites; and treating drinking water for a wide suite of potential contaminants using a treatment-based or class-based regulatory approach.”

There also are many issues related to local toxic groundwater polluter Lockheed Martin, from there HQ and operations – they have not cleaned up their site, and according to their own “CEA” Report filed with DEP, the groundwater plume was migrating off site and impacting a nearby day care center and nearly homes. Lockheed actually tried to mask this issue by not answering a question on DEP’s “bi-ennial certification” report. DEP is not enforcing its own CEA regulations, which do not allow “CEA” plumes to migrate off site and impact sensitive receptors like homes and daycares.

Finally, current DEP Commissioner LaTourette previously represented corporate polluters that successfully sued DEP to block DEP’s attempts to collect financial compensation for toxic pollution of drinking water!That legal loss established some of the precedent that forced the controversial Christie Exxon NRD settlement disaster ($8.9 billion in damages reduced to $225 million, lies than 3 cents on the dollar!)Yet, remarkably, the media has allowed Gov. Murphy to falsely portray LaTourette as a “Erin Bockovich” public interest advocate!

All of the above claims are documented in the posts [above] just in case you are interested in some serious journalism:

[END NOTE: The corruption of the current corporate oriented opportunists is exposed by the fact that we were out in front of the infrastructure issues 16 years ago – before it was hijacked by Foundations and corporate interests . We linked DEP regulation and enforcement with the financial issues, see our testimony to the Clean Water Council in 2005:

• HUGE NEW JERSEY WATER INFRASTRUCTURE NEEDS NOT BEING MET

Mangled Up In Blue

I had a job in the great north woods
Working as a cook for a spell
But I never did like it all that much
And one day the axe just fell. ~~~ Tangled Up In Blue (1975), Bob Dylan

I recently spent a week in a lovely grove in Tahoe National Forest.

Within probably just a few hundred acre “subdivision” I walked, there were blue lines everywhere, showing trees soon to be logged. I was too disgusted to even research the rationale.

Gibbstown “Cavern” On Former Dupont Site “Repurposed” To Store LNG Export Gas 

“Climate change impact assessment” limited to adaptation, not greenhouse gas emissions

No enforceable standards apply to greenhouse gas emissions

This is what “regulatory capture” looks like

Climate change impacts do not include the climate impacts of greenhouse gas emissions from or associated with the facility.

The “climate change impact statement” and DEP permit review provisions of the proposal lack any standards to deny a permit on the basis of climate impacts.

Today, the Murphy DEP proposed new regulations that would govern DEP permitting of new and existing facilities for the underground storage of natural gas and other petroleum products.

I suspect that DEP will spin these rules as updating or modernizing outdated permits or regulations based on an ancient 1951 law. DEP will use the LNG restriction to obfuscate and divert.

But make no mistake, just the opposite is the case: in fact, the proposed rules effectively promote expansion of fossil infrastructure, protect existing permits, and continue a dangerous practice that should be banned.

Underground storage caverns are part of the fossil infrastructure network. Although DEP fails to even mention this or analyze the need for this infrastructure capacity, California regulators analyze the need for storage capacity and explain the role of underground storage:

[The folks at Delaware Riverkeeper played the inside DEP game and got duped. DRN actually supported the development of regulations, instead of just opposing the need for this practice and seeking decommissioning of existing caverns and a ban on expansion or promotion of new fossil infrastructure. Remarkably, they did this despite noting that the Gibbstown LNG project was seeking expansion of the current cavern capacity of 186,000 barrels to 3 million barrels! ]

According to the DEP proposal:

The proposed new rules will apply to systems that are used for the underground storage of any natural or artificial gas, or any petroleum product or derivative of any petroleum product, with the exception of liquefied natural gas (LNG), as discussed below, and will govern the construction, operation, modification, and decommissioning of the systems. …

… Under the proposed rules, petroleum products and their derivatives include methane,ethane, propane, butane, gasoline, kerosene, fuel oil, synthetic oil, crude oil, and liquified petroleum gas (LPG) …

In New Jersey, there are six excavated rock caverns that store liquefied petroleum gases, specifically propane and butane. These caverns were permitted by the Department, known then as the Department of Conservation and Economic Development, as authorized by the Act. Five of the caverns are in Linden and were constructed in 1957, at the Bayway Refinery, then owned by the Esso Standard Oil Company. The caverns received operation permits in 1959 for the storage of propane (two caverns) and butane (three caverns). These caverns still store the same products for which each was permitted. A sixth cavern was constructed between 1966 and 1968 in Gibbstown at what was then DuPont’s Repauno works. It originally stored anhydrous ammonia. This cavern received its construction and operation permit in 1965. The Department issued a permit modification in 2016, to allow the cavern to be repurposed to store butane. While there is ongoing Department oversight with the existing permits at these facilities, these proposed rules establish regulations, considering current engineering practices and environmental conditions, to ensure that existing systems and any new cavern systems that are constructed will be operated and maintained in a manner protective of public health, safety, and the environment.

Don’t be fooled by the exclusion of storage of LNG. The DEP proposal would allow underground storage of fracked natural gas, which can easily be converted to LNG for export.

Given NJ’s proximity to major reserves of fracked gas in the Marcellus shale, huge and growing gas demand, well developed pipeline network, and coastal location ideal for LNG export, this rule proposal obviously provides the regulatory framework for a huge expansion of gas infrastructure.

This is exactly the kind of “predictability” and “regulatory certainty” financial investors and the fossil industry desire (see: Principle #6 on “regulatory capture”). Underground storage capacity also supports the “reliability” (real time balance of supply/demand) and need to meet “peak demand” sham justifications for natural gas. Look at the national picture and note the location of underground storage to fracked gas production:

[Note: And don’t think Gov. Murphy’s Energy Master Plan or off-shore wind program will reduce growing natural gas demand – just the opposite. As I’ve written many times, off shore wind is dependent on natural gas. California regulators’ capacity analysis reveals this in their finding: (on page 493, 527, and 530)

After reviewing the DEP proposal, I now realize that the corruption involved with the DEP permitting of the proposed Gibbstown LNG export facility is even worse than I had imagined. I must admit ignorance of the DEP’s prior 2016 permit for an “underground storage cavern” for the gas butane. – or the existence of the “caverns in Linden”.

Recall that, after the stealth DEP permitting of Gibbstown LNG export was publicly exposed and generated a firestorm of protest, that Gov. Murphy publicly claimed that he opposed the facility and would do everything in his power to stop it. NJ Spotlight recently reported that the project was “on hold”.

But now, instead of killing the project by revoking previously issued DEP permits, Murphy’s DEP is proposing new rules that would allow new facilities and expansion and renewal of DEP permits for underground caverns, including for storage of butane at the proposed LNG export Gibbstown plant site, as well as 5 other existing “caverns”.

Everyone knows that the Biden Administration is seeking major expansion in the export of LNG to Europe to replace Russian gas.

Still, it is shocking to learn that at a time of climate emergency – which has prompted proposals to ban new construction and phase out existing fossil infrastructure and when states like California are learning about the risks of underground storage of natural gas, i.e. the Aliso Canyon disaster – that self described climate “leader” NJ Gov. Murphy’s administration is proposing new rules to expand storage of fossil fuels, including natural gas, in underground “caverns”.

The Murphy DEP proposal is directly linked to the proposed LNG export terminal in Gibbstown NJ at the former Dupont toxic site.

The Gibbstown LNG linkage is why the proposal was authorized and approved by DEP Deputy Commissioner Moriarity and not DEP Commissioner LaTourette, who legally represented that project and was forced to recuse himself from any involvement.

The proposal requires a “climate change impact assessment”. That assessment is the basis for DEP permit review:

But there are serious flaws that render this a totally meaningless exercise and expose the whole enterprise as sham:

1. DEP admits that the climate impact assessment is not enforceable and that there are no requirements to implement “any measure”:

2. the impact assessment is designed specifically and only for “climate change resiliency” (adaptation), not greenhouse gas emissions or meeting the emissions reduction goals of the Global Warming Response Act:

Among other flaws, on “climate adaptation”, the DEP tips their hand on the upcoming claim PACT land use regulations, by requiring consideration of the outdated and totally inadequate 100 year storm event:

The climate driven sea level rise standard is stronger, but it would not apply to Gibbstown location:

The complete environmental impacts that must be assessed are found on page 98-101.

The climate impact assessment requirements are found on page 104-106. (N.J.A.C. 7:1F-2.4). The “climate change impacts” are specified there. They are not what you might think.

Climate change impacts do not include the climate impacts of greenhouse gas emissions from or associated with the facility.

The “climate change impact statement” and DEP permit review provisions of the proposal lack any standards to deny a permit on the basis of climate impacts.

Here is the DEP’s lame attempt to obfuscate that reality:

Convict Lake

Mammoth Lakes

Mono Lake

Twin Lakes

Lake Tahoe

Billionaire Real Estate Firm To Purchase Land For More Than $120 Million

Judge Using Revenue For Victims Compensation To Create Future Victims

“The capitalists will sell us the rope with which we will hang them” ~~~ Marx/Lenin

Part One of Two

Part One today will briefly update the status and explore the possible causes of the deadly Miami condominium collapse last year.

Part Two will then explore the implications for NJ.

I)  Beachfront Land For Sale

The beachfront land at the site of last year’s deadly condo collapse in Miami, where 98 people died, will be sold at auction on May 24. 

The land sale was approved by a local Florida Judge

Despite some opposition to the sale, the court will use the money to compensate the owners of the 136 apartments destroyed and the families affected by the Champlain Towers South Tragedy.

Billionaire Hussain Sajwani, of the Dubai-based DAMAC Properties, bid $120 million to purchase the oceanside property at 8777 Collins Ave.

The revenue from the land sale is part of a $997 million settlement to compensate victims’ families.

Of course, the NYT makes no mention of the perversity of a settlement that compensates innocent victims by creating future victims.

The settlement will do this in at least 2 ways directly: 1) by selling the land – unconditionally – to a developer who will build another condo that will collapse or be inundated by rising seas, creating future victims; and 2) by releasing condo owners from any liability for negligence, which sends a perverse message to other condo owners that they can neglect maintenance and coastal risks with impunity, again creating more future victims. There are additional major flaws of a settlement before the accident investigation is complete, causes are known and reforms are enacted. Surely, responsible corporations and public officials have gotten off the hook and will not be held accountable, again leading to even more future victims.

II) Will Redevelopment Occur Before Accident Investigation Completed and Causes Are Known?

Lost in all the money are the facts that, as the NY Times parenthetically notes (I think they call this “burying the lede”):

The National Institute of Standards and Technology is still investigating what caused the 13-story, 135-unit building to partially crumble in the middle of the night, a review that could take years. […]

As part of their earlier settlement, the condo owners were released from any liability for negligence in the building’s maintenance. Under Florida law, they could have been sued for up to the value of their units.

Hey, it could be worse: the Florida legislature could – just like NY and NJ did in providing immunity from COVID liability to nursing homes – simply pass a law waiving liability for all beachfront property.

But I want to focus briefly on the property sale to a billionaire real estate developer, who surely isn’t spending at least $120 million for 1.88 acres of beachfront property to create bird habitat.

Obviously, he will seek to build another high rise condo there.

It is insane to rebuild on that site, especially before the investigation of the cause of collapse is complete and the cause is known.

Subsurface conditions, land subsidence, salt water intrusion, and climate driven rising sea levels and deadly storms make future disaster and/or collapse inevitable.

III)  Will Subsurface Conditions and Climate Change Be Part Of the Investigation?

The media initially reported on climate and subsurface conditions as potential causes of the collapse.

But that angle on the story was immediately suppressed, given the multi-billion dollar devastation it would cause if the implications for south Florida coastal development were fully understood.

A Washington Post story outlined these issues:

• Engineer warned of ‘major structural damage’ years before Florida condo building collapsed

Investigators will probe whether salt, humidity and other environmental conditions also could have weakened the Champlain South structure or if other problems such as a sinkhole-like collapse in the ground underneath the building led to the disaster. …

Some local officials and others interviewed said that the 40-year review process should be made more rigorous and that the inspections should be more frequent. They noted that the checklist does not include an examination of the ground under buildings such as Champlain Towers.

“It’s not just what’s happening above ground — it’s what happening below ground that counts,” Surfside Building Department chief James McGuinness, told reporters. According to McGuinness, the review is strictly focused on the structural load-bearing elements of the building and its electrical systems. [Note: not subsurface conditions]

Surfside Town Commissioner Eliana Salzhauer told reporters Friday that commissioners believed the process should be adjusted to include underground checks.

“They look for cracks in the concrete, but they really have no clue what’s going on beneath the ground,” said attorney David Haber, who specializes in construction and condominium law. “Who knows what it looks like below grade? That’s something that I think we are going to have to look at changing in South Florida, with the rising water table.” …

But Salzhauer said Surfside, like communities throughout South Florida, has been battling erosion. Many buildings have been constructed on reclaimed marshland.

“Remember, the water just doesn’t go where we see it,” Salzhauer said. “The water is underneath. Miami Beach has water underneath. There is water below us, and the water is above us. And we have to live in that precarious balance of having to build on what is essentially a big puddle of water.” …

DiMaggio Berger said that a “subsurface, structural issue” likely caused the collapse. “This building was on pilings buffeted by the Atlantic Ocean and the Intracoastal Waterway,” she said. “We’ve got water coming at this thing from both sides.”

Now here’s where it gets really interesting.

In addition to these serious concerns about subsurface conditions, the research of a local professor had documented land subsidence at the site. This professor initially publicly suggested that land subsidence could have been a factor, but within 24 hours of making these comments, he walked them back: (WaPo)

Right.

Make the collapse unique to this one building and thereby ignore millions of other vulnerable buildings.

So, the scope of the investigation by the National Institute of Standards and Technology (NIST) investigation is critical.

Will it include subsurface conditions and climate change impacts?

A NIST press release on the study vaguely hints at the not only the local but national implications of the investigation:

There are millions of high-rise condominium units in Florida alone, many of them near the ocean or aging. While a NIST investigation is intended to identify the cause of the Champlain Towers South collapse, it could also uncover potential issues for other similar buildings nearby and throughout the nation. 

When NIST says the investigation may impact “buildings throughout the nation”, that includes New Jersey.

In order to understand the scope of NIST investigation, I just sent these questions to the NIST press officer, Jennifer Huergo, with a copy to NJ Spotlight reporter Jon Hurdle in hopes of prompting some investigation on his part of the NJ implications I will discuss in Part 2:

Hi Jennifer – I just left a message on your phone.

My questions are:

1. Does the scope of the NIST investigation of the Miami condo collapse include subsurface conditions?

Early press reports mentioned land subsidence, subsurface geology, reclaimed wetlands, salt water intrusion, possible sinkhole formation, and erosion, oxidation, and water damage from increasing sea level rise/storm surge.

Are these factors being considered?

Please confirm.

2. In terms of timing: will the NIST investigation Report be issued publicly before land use redevelopment approvals are issued for any redevelopment of the property?

I note that the land will be auctioned on May 24, with an opening bid price of $120 million (from a real estate firm). I assume they are not spending that kind of money to create habitat!

Thank you,

Part Two, on how this all relates to NJ is coming soon!