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Murphy DEP Seeking Relief For Violating Clean Air Ozone Standards – Blames Wildfires As “Exceptional Events”

June 20th, 2024 No comments

Wildfires Caused By The “Prescribed Burns” DEP Supports

DEP Emphasizes Climate Change And Environmental Justice In Press Releases, But Downplays For Regulatory Compliance Purposes

Source: NJ DEEP SIP. Image courtesy of rileycountyks.gov

Source: NJ DEP SIP. Image courtesy of rileycountyks.gov

The Murphy DEP just submitted to EPA for review and approval a proposed State Implementation Plan (SIP) Revision for the Attainment and Maintenance of the Ozone National Ambient Air Quality Standards.

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Ozone causes health problems because it damages lung tissue, reduces lung function, and sensitizes the lungs to other irritants. Ozone has long been known to increase the incidence of asthma attacks in susceptible individuals. Ozone exposure also makes the lungs more vulnerable to lung diseases such as pneumonia and bronchitis. Ozone not only affects people withs impaired respiratory systems, such as asthmatics, but healthy adults and children as well. Exposure to ozone for several hours at relatively low concentrations significantly reduces lung function and induces respiratory inflammation in normal, healthy people during exercise. This decrease in lung function is generally accompanied by symptoms such as chest pain, coughing, sneezing, and pulmonary congestion. Recent research in southern California strongly suggests that, in addition to exacerbating existing asthma, ozone also causes asthma in children.39 Longer-term exposure to ozone can also lead to scarring of the lung tissue and permanent reductions in lung capacity.40 Long-term exposure to ozone can eventually lead to premature death.41

The Murphy DEP touts their commitment to Environmental Justice, but the facts belie that commitment. Check this out: NO air quality monitoring in Newark!

The NJDEP currently measures ozone concentrations at 16 sites in New Jersey. Seventeen sites were running prior to September 2022. The Newark Firehouse site was closed in September 2022 and NJDEP is currently working on re-establishing a new monitor in Newark City. (@ page 2-1)

The proposed SIP seeks delay in EPA enforcement of NJ’s failure to attain the 70 ppb 8 hour ozone NAAQS by exploiting a loophole in the Clean Air Act. Amazingly, the Murphy DEP is blaming wildfires for NJ’s failure to meet the NAAQS. (17 days in 2023. Only 4 days due to wildfire smoke. Violations will increase as a result of global warming, again, something DEP highlights in press releases, but downplays for regulatory purposes):

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The SIP is another example of a jumble of DEP conflicting policies that work at cross purposes and harm public health and the environment. Let me drill down, but not too deep in the weeds.

The DEP aggressively supports “prescribed burns” as a key method of forest management and wildfire prevention. The prescribed burns are purportedly designed to reduce “fuel” in the forest that DEP falsely claims drives wildfires.

DEP exempts “prescribed burns” from clean air regulatory requirements, e.g. air pollution permits are not required and the air pollution created by these fires is not counted in DEP’s air pollution inventory.

DEP never talks about the serious air pollution and public health impacts created by prescribed burns.

The DEP never mentions the fact that prescribed burns can get out of control and cause wildfires.

The Legislature even passed and Gov. Murphy signed a law that eliminates liability for damages caused if a prescribed burn gets out of control.

Similarly, the DEP constantly talks about climate change and extreme weather, yet rarely if ever talks about the fact that climate change is the key factor in causing more frequent and intense wildfires.

DEP prescribed burns have comparatively little or no impact on preventing wildfires, because the causes are related to climate change and factors like high wind, low humidity, and drought, not fuel buildup in the forest. That’s right: DEP is polluting the air, harming human health and damaging forest ecosystems for little if any benefit).

With that context in mind, it is a stunning contradiction that the Murphy DEP is now blaming wildfires for the State’s failure to attain the federal Clean Air Act ground level ozone standards.

The DEP just submitted NJ’s State Implementation Plan (SIP) revision to meet the 70 ppm 8 hour ozone standard.

NJ is not in attainment with that ozone standard and as a could face EPA sanctions, like polluters having to reduce pollution and buy expensive pollution offsets, or losing federal highway construction money: (SIP, p. 1-2)

CAA Section 179 (or 42 U.S.C. §7509) requires sanctions when a State fails to submit a timely and approvable plan or fails to fully implement its commitments. First, the State could face serious economic development constraints. Specifically, the USEPA could order that any proposed new air pollution source in the State secure double the offset of the emissions it might produce before it can be permitted. Second, the State could be subjected to sanctions that could result in the loss of New Jersey’s Federal transportation funds.

Buried in the fine print of the DEP proposed SIP is an effort to exploit a loophole in the Clean Air Act, which allows States to argue that “exceptional events” beyond their control caused the State to fail to meet ozone standards, known as “National Ambient Air Quality Standards”

Remarkably, one of the wildfires that DEP blames for NJ air pollution violations was caused by a prescribed burn that got out of control: (DEP “Exceptional Event Demonstration” (@ page 4)

3. Wildfire Description
In spring 2023, numerous fires burned across the grassy Flint Hills region of eastern Kansas. Evidence from satellite imagery shows fire activity started to accelerate in late March and early April due to widespread drought conditions across the plains.6 Strong winds, unseasonably warm air temperatures, and extremely dry prairie grasses created a favorable environment for large and small wildfires to spread in Kansas between late March and early April 2023. Some fires were spread due to escaped fires that were ignited to manage land.7 According to the Riley County government website, multiple major fires in Riley County between April 6-10, were prescribed burns that got out of control.

That’s right: The DEP is blaming out of State wildfires, caused by the damaging and ineffective prescribed burns they promote in-state, while ignoring the primary cause of wildfires, which is climate change, DEP’s highest priority.

You can’t make this stuff up.

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DEP Directly Involved In Norcross Camden Waterfront Development Scheme

June 18th, 2024 No comments

Indictment Cites Lobbying On DEP Permits, Remediation, And Approvals

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Piñata Part 4

Well, there it is, right out in the open in paragraph f. on page 55 of the Attorney General’s Indictment of George Norcross (see above).

DEP is directly involved, as I knew they must be.

The next steps are filing additional OPRA requests to expose who the Norcross developers were talking to at the DEP and what they were talking about while

seeking the requisite permits and approvals for the environmental remediation, redevelopment and renovation of Radio Lofts

Like I said, this is getting interesting.

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Norcross Indictment Exposes Abuse Of DEP Toxic Site Cleanup Standards

June 18th, 2024 No comments

Developer Sought Local Rezoning To Reduce Cleanup Costs

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Piñata Part 3

We’ve long criticized flaws in NJ DEP’s toxic site cleanup program for, among many other things, allowing developers and local governments to weaken cleanup requirements by zoning land from residential to commercial or industrial uses.

Cleanup standards are far weaker for industrial sites and as a result, cleanup costs are reduced and a lot of toxic contamination is left on site to continue to poison the environment and community.

Often times, the media ignores this abuse ,or when it is reported, downplays the significance, or makes the issue ambiguous or a he said/she said kind of routine dispute.

One of the most notorious examples of this kind of rezoning – cleanup standards abuse occurred at the Ford toxic site in Ringwood.

So, while I was not surprised to read it, the Attorney General’s indictment of George Norcross et al makes that abuse very clear (see above text). Official documents vindicate our criticism.

Perhaps this aspect of the indictment could prompt more media coverage of this abuse, deter local governments from engaging in it, and pressure the Legislature to close these loopholes in NJ cleanup laws.

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Norcross Indictment Shows That NJ DEP Engaged In The Same Corrupt Regulatory Practices As NJ EDA

June 18th, 2024 No comments

Norcross Lobbyists Provided Access To Draft Regulations Prior To The Public Process

Lobbyist Given Secret Regulatory Favor

Similar Corrupt Practices Are Widespread In NJ State Government

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Piñata Part 2

As a longtime DEP regulatory practitioner and external DEP watchdog, as I read it, the Norcross indictment document is proving to be a giant piñata of corruption.

The text above is an excerpt from page 19 of NJ Attorney General Platkin’s indictment of George Norcross et al. Focus on the phrase “prior to any public comment period on the applicable regulations”, because that is where the corruption is exposed.

The excerpt shows that a Norcross lobbyist was provided access to EDA and given an opportunity to make secret changes to EDA draft regulations before the regulatory public process.

Because the Norcross requested change to the regulatory provision in question was drafted BEFORE any public process, there is no accountability, because the EDA draft regulatory documents and the lobbyists’ email request are not public documents and not part of the administrative record on the rule in question.

Under legally required “public notice and comment” regulatory procedures, the Norcross lawyer lobbyist would have to submit public comments on proposed draft EDA regulation and EDA would have to publish both the lobbyists’ comment and the EDA response (in this case, granting the special request by the Norcross lobbyist). 

Given that this regulatory favor by EDA is a fact that is included in the indictment, one can assume that it represents, at best, improper activity, wrongdoing, or possible criminal activity.

This is an example of a subtle and arcane way that private special interest corrupt the regulatory process.

I’ve witnessed it multiple times during my career at DEP and I even once blew the whistle on exactly the same corruption by Gov. McGreevey’s DEP Commissioner Brad Campbell. (PEER Press Release, 7/5/05)

Trenton — The head of the New Jersey Department of Environmental Protection
gave a prominent developer an advance look at streams that would be designated for protection months before the list was published for public comment, according to emails released today by Public Employees for Environmental Responsibility (PEER). The state agency subsequently dropped the stream protection plans that would have interfered with the developer’s projects.

In an October 28, 2002 email to DEP Commissioner Bradley Campbell, Joe Riggs,
President of K. Hovnanian, a major New Jersey developer, opposed additional
protections for several high quality streams and rivers, including the Peckman
River, Lopatcong Creek, Pequannock River, Mill Brook and South Branch of the
Raritan River. The company objected to placing these stream buffer lands off
limits to building because that would preclude sewage treatment plant expansions
needed to serve its projects. […]

“These documents reveal troubling behind-the-scenes political influence that ultimately undermined protections for high quality New Jersey trout streams and rivers,” commented New Jersey PEER Director Bill Wolfe, a former DEP official.

Hit the link above to read all the documents, including the smoking gun emails.

Here is my reply email to Commissioner Campbell on Mr. Riggs’ requests.

I filed an ethics complaint as well.

The complaint ultimately was dismissed by the State Ethics Commission: (PEER Press Release 11/5/05)

Trenton — The Executive Commission on Ethical Standards has dismissed without explanation a complaint that New Jersey Department of Environmental Protection Commissioner Bradley Campbell improperly gave confidential deliberative regulatory information to developer Joe Riggs, President of K. Hovnanian. As a consequence, there will be no sanction against Campbell for providing developers extremely valuable inside information about agency plans well before they were made public.

The request for ethics review was filed on July 5, 2005 by Public Employees for Environmental Responsibility (PEER) concerning politically connected developers getting the inside track on stream classification decisions worth millions of dollars.

The legislature should amend laws to explicitly prohibit these systematic corrupt practices and expand transparency.

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What Was The NJ DEP Role In The Camden Waterfront Redevelopment Projects Involved In The Norcross Indictment?

June 18th, 2024 No comments

DEP Regulatory Role In Land Use Permits And Site Remediation Approvals

Did Norcross Associates Get Sweetheart Deals Or Special Treatment?

Source: NJ AG Norcross indictment - map of properties involved

Source: NJ AG Norcross indictment – map of properties involved

Piñata Part 1

I’m just now reading NJ Attorney General Platkin’s June 13, 2024 Indictment of south Jersey political boss George Norcross et al (including the former Mayor of Camden).

I noted that some of the Camden Waterfront development projects mentioned in the Indictment involve a regulatory role by the NJ Department of Environmental Protection (DEP) in issuing various Land Use permits, Site Remediation, and other water related approvals.

Based on my first hand experience at DEP, where I’ve witnessed political pressures on DEP for favorable treatment in issuing various regulatory approvals, I thought it important to understand DEP’s role in this scandal.

So, I just submitted the following Open Public Records Act (OPRA) request to DEP.

I may do this for other projects or parcels in the indictment. Maybe intrepid investigative reporters out there can use this as a model and submit their own OPRA requests. It should be interesting:

“According to the NJ Attorney General’s 6/13/24 indictment of George Norcross et al: (hereafter notes are mine):

“In 2002, Dranoff properties (hereafter DPI) began the process of renovating and remediating the Victor Lofts on the Camden Waterfront (hereafter “subject development”). The renovation was completed in 2003.”

Based on those facts, I request the following public documents for the period 2001 – 2004:

1) Communications between DPI and NJ DEP, the NJ DEP Commissioner, the NJ DEP Assistant Commissioners for Land Use and Site Remediation, and DEP staff in Land Use and Site Remediation, including letters, emails, meeting records (agendas, meeting notes, participants, sign in sheets, etc), phone call logs, land use and site remediation permit pre-application meetings, and document transmittal letters (e.g. cover letters for permit applications, remediation documents, or other project coordination documents).

2) Land Use permit applications submitted by DPI on the subject development and DEP permit administrative completeness, technical deficiency and technical completeness letters, and DEP permit approval letters for the subject development.

3) Site remediation documents submitted by DPI on the subject development and DEP technical review and approval letters for the subject development.

4) DEP site inspection documents for the subject development site.

5) DEP enforcement documents issued to DPI for the subject site and to prior owners of the subject site.

We’ll keep you posted on what we find out.

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