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Emergency Fundraising Appeal

May 23rd, 2016 No comments

Please visit this PayPal site and contribute

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Dear Friends, Activists, and Readers –

A year ago, I shuttered the NJ PEER Office due to lack of funding from PEER national and NJ based Foundations and sought crowd source funding to keep this blog alive.

Many friends were generous with financial support and those contributions have literally kept me alive.

Since then, despite passing a half million reader milestone, the financial situation has further deteriorated, as paying work has not appeared and the big Foundations – like Dodge and Wm. Penn – are targets of my wrath, not grant proposals.

But, over this past year, I have tried to “live in truth” and have continued to blog almost daily and provide pro bono expert support to communities and activists on a range of important issues.

Some of the issues and/or places I’ve focused on over the last year include:

  • Climate change, energy, & pipelines
  • Pinelands
  • DEP regulatory rollbacks of C1, Flood Hazard, Coastal, WQMP, & Highlands septic density
  • Drinking water, water quality, drought, & water supply plan
  • Sparta Mountain and Highlands logging plans
  • Christie and DEP accountability

I’ve tried to help local activists wage battles in Pompton Lakes, Chesterfield, New Egypt, Sparta, Milford & Moorestown.

I’ve tried to provide leadership and strategic advise to environmental groups, and led the charge on issues like State Parks funding, defending C1 buffers and seeking a legislative veto of DEP rules, Sparta Mountain logging, and how to use the Clean Water Act to block pipelines.

I’ve testified at numerous legislative and regulatory hearings and attended, photographed, and written in support of many activist protest events.

So, once again, I ask those who have enjoyed or benefitted from my work to make a financial contribution.

Please visit this PayPal site and contribute as much as you can.

You can shoot me an email to discuss this off line at

Thanks for your support.

Buoy at Devils 2

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EPA Asked To Conduct Enforcement Review of BL England Plant and Christie DEP Permit Renewal

May 22nd, 2016 No comments

The DEP held a public hearing last Tuesday on the BL England power plant and the written public comment expires tomorrow, so I submitted the following comments and request to EPA.

While I am not an expert, at a minimum, it is not sound public policy to permit a major new source of greenhouse gas emissions prior to consideration of EPA’s Clean Power Plan and NJ’s Global Warming Response Act goals.

Dear US EPA Administrator Enck and NJ DEP Commissioner Martin:

This letter serves the following purposes:

1) request for EPA to conduct a compliance review of the BL England power plant in Upper Township, NJ (BLE)

2) request that EPA review the draft air pollution control operating permit issued by NJ DEP to BL England, see:

3) submit comments on the draft NJ DEP air pollution control permit issued to BL England for EPA and DEP consideration

4) request that EPA and/or NJ DEP extend the public comment period by at least 60 days to provide time for adequate and meaningful public review.

1. EPA compliance review

It is my understanding that the initial 2006 Administrative Consent Order (ACO) between the NJ DEP and then BLE owner (Atlantic City Electric) resolved a joint US EPA and NJ DEP federal Clean Air Act “New Source Review” violation and enforcement action.

The compliance dates in the ACO have been extended by the NJ DEP several times. The proposed design and emissions of the proposed re-powering of the facility have changed as well. There have been mechanical and operational changes at the plant.

I request that EPA consider these compliance deadline extensions and the current plant operations to determine if BLE is in full compliance with Clean Air Act and all other requirements and to take appropriate enforcement action, including plant shutdown, if there are violations of law or EPA regulations or permits.

2. Request for EPA review of NJ DEP draft permit to BLE

The BLE plant is a major emission source subject to EPA jurisdiction under the Clean Air Act.

I request that EPA review the draft renewal of the operating permit for the facility currently undergoing public comment period.

3. Comments of the NJ DEP draft operating permit

I suggest the following flaws in the draft permit.

a) permit could serve as an enforcement shield

The draft permit does not include a mandatory implementation schedule for the plant shutdown and re-powering or reflect the compliance obligations of the ACO.

I am concerned about what would happen in the event that the owner of BLE (RC Cape May) does not secure construction financing, or all necessary approvals to proceed, or experiences delays in construction and/or commencement of operations at the facility.

Could the current plant continue to operate under the prior permit and ACO? When will current operations cease?

In addition, the fuel source for the BLE plant is the proposed South Jersey Gas pipeline. The alleged approval of that pipeline by the Pinelands Commission and the NJ Board of Public Utilities is currently subject to litigation. The BLE plant would lack a fuel source should these lawsuits succeed.

How would the draft permit address these scenarios?

b) failure to adequately consider climate change and greenhouse gas emissions

Greenhouse gases are regulated as “air contaminants” under the NJ Air Pollution Control Act and DEP regulations.

The draft permit did not conduct a cumulative impact analysis of the lifecycle emissions of greenhouse gases, including emissions from pipelines, compressor stations, and fracking wells.

The draft permit did not adequately address the implications of compliance with EPA’s proposed Clean Power Plan regulations. Those EPA rules have been stayed pending judicial review. It is not appropriate to issue a final permit to a major facility pending adoption of the EPA CPP regulations.

NJ DEP officials have publicly stated that they are not preparing a State Implementation Plan (SIP) amendment to comply with the EPA Clean Power Plan regulations. It is not appropriate to issue a final permit to a major facility in the absence of an adopted and EPA approved SIP to implement the Clean Power Plan and control greenhouse gas emissions.

The proposed BLE re-powering would extend the operating life of the BLE plant for perhaps an additional 30 – 40 years.

The NJ Global Warming Response Act requires deep reductions in statewide greenhouse gas emissions by 2020, and 2050.

The draft permit failed to consider if and how the additional GHG missions from BLE would comply with the emissions reductions mandated by the GWRA.

c) permit does not reflect “advances in the art of pollution control”

The NJ Air Pollution Control Act requires that permits reflect “advances in the art of pollution control” (also called SOTA).

Pollution control technology is generally understood and defined by EPA as:

“the term “control technology” is defined broadly to be consistent with section 112(d)(2) of the Clean Air Act to include measures, processes, methods, systems or techniques which reduce the volume of, or eliminate emissions of, HAP through process changes, substitution of materials or other modifications; enclose systems or processes to eliminate emissions; collect, capture or treat HAP when released from a process, stack, storage or fugitive emissions point; are design, equipment, work practice, or operational standards; or a combination of the above.

The draft permit does not demonstrate or reflect SOTA for all pollutants.

For example,  regulated greenhouse gas emissions could be reduced or eliminated by energy efficiency, reductions in energy demand, demand management, and/or renewable energy. None of these “pollution control” methods were considered.

d) permit did not adequately address Hazardous Air Pollutants (HAP’s) and conduct ecological and human health risk assessments

The BLE plant is a major source of HAP’s.  Under NJ Air Pollution Control regulations, major HAP source must conduct air quality modeling and a human health risk assessment. The draft permit failed to adequately consider human health impacts and conduct the required risk assessment.

The draft permit would allow emissions of 129,000 pounds of lead per year. The draft permit did not consider the impacts of these emissions on children’s blood lead levels.

In addition, the draft permit would allow emissions of many pollutants that have adverse impacts on fish and wildlife. The Cape May peninsula and Great Egg Bay are extreme ecologically significant. The draft permit failed to consider the ecological impacts of pollutants from BLE.

e) permit inconsistent with air quality analysis submitted to Pinelands Commission

The NJ DEP submitted and presented an air quality analysis of the BLE plant during the review of the plant’s fuel source, the South Jersey Gas pipeline, by the Pinelands Commission. This analysis was required to demonstrate compliance with the federally approved  Pinelands Comprehensive Management Plan (CMP).

Since then, the proposed design and operation of the BLE plant have changed considerably. Accordingly, so have the alleged benefits of the plant asserted to comply with the CMP. This renders the proposed permit inconsistent with the CMP.

The EPA and NJ DEP should not be approving permits that are inconsistent with the CMP and not fully approved by vote, after public hearing, the Pinlands Commission.

4. Request for extension of the public comment period

The NJ DEP held a public hearing on the draft permit on May 17, 2016 in Upper Township, NJ. The hearing room was packed by well over 100 people, standing room only. Approximately 30 – 40 people presented oral testimony which was limited to just 3 minutes by the DEP hearing officer.

There is significant public interest in this controversial air permit, which would have significant impacts and statewide implications for the people of NJ.

The draft permit is complex, legally and technically. I am not an expert on the Clean Air Act. In order to understand and meaningfully participate in review and comment on the draft permit, the public needs the technical assistance of expert consultants. In order to secure that kind of support, the public needs additional time.

Therefore, I request that EPA and/or NJ DEP extend the public comment period for 90 days.

I appreciate your timely and favorable consideration.

Bill Wolfe

Bordentown, NJ


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Christie DEP Adopts Flood Hazard Rule Pending Legislative Veto

May 21st, 2016 No comments

DEP Admits They Routinely Violated and Did Not Enforce C1 Buffer Rule

DEP now claims C1 buffer “was never a “no-build” regulation”

The ball is back in the legislature’s court

The Christie DEP has adopted the controversial Flood Hazard rules pending legislative veto (see the DEP’s adoption and response to comment document).

The adoption of that controversial rule proposal was accompanied by a new proposal that allegedly responds to criticisms and alleged unintended consequences of the original proposal (see the new “concurrent proposal” here).

The whole process recalls Malcolm X’s famous observation:

If you stick a knife in my back 9 inches and pull it out 6 inches, there’s no progress

As we warned, the simultaneous adoption and concurrent proposal makes it very difficult to understand what is going on and very easy for DEP to spin the press and Legislators and environmental groups:

This sets up a very dangerous game of bait and switch and spin – DEP could adopt the bad parts and promise to re-propose the fixes but never adopt them.

The public and the Committee will be drowned in the weeds of a lengthy adoption – response to public comments document on the original proposal along with an entirely new and complex re-proposal document. This is a formula for political manipulation. It will take weeks to decipher the documents. Meanwhile, by the time the dust settles, the original proposal will be adopted into law and the Veto Resolution will have withered on the vine (faded into the budget debate) and the Legislature adjourned for the summer.

In fact, in an effort to spin this whole situation, just last week there was exactly the kind of political posturing I called Kabuki, see NJ Spotlight’s set up story:

But one thing is very clear – the ball is in the Legislature’s court.

If they do not follow through with their threat to veto the rule then they have failed and they concur with the same environmental policy as the Christie administration.

Both adoption and new proposal documents are lengthy and complex and will take a least the weekend to digest and write about, but in this first post, I do want to note one extraordinary admission by the DEP.

Much of the controversy over these rules focused on the repeal of the 300 foot wide Category One buffers (known as a “SWRPA”) and replacement by a less protected “riparian zone” and how the proposal would allow more disturbance and development of C1 stream buffers, particularly inside the 150 feet  and closer to the stream.

As DEP notes, citing the rule text at N.J.A.C. 7:13-5.5(h)1ii, the current rules strictly prohibit disturbance and development inside 150 feet:

In no case shall the remaining SWRPA be reduced to less than 150 feet

“In no case” – NO means no. None. Sorry, can’t do that. If a landowner objected, they could exhaust administrative remedies and then file a “takings” challenge and see if the courts agree. Good luck with that (look at takings waiver in Highlands rules, NJAC 7:38-6.8).

But, shockingly, DEP – for the first time – now says that NO means YES.

DEP now claims that they flat out violated that regulation for 12 years and routinely reduced the buffer to less than 150 feet and approved development inside the 150 feet!

Thus, while N.J.A.C. 7:13-5.5(h)1ii provides no allowance for any disturbance within the inner 150 feet of the 300-foot SWRPA, and permits limited disturbance in the outer 150 feet, the Department has authorized encroachments into these portions of the SWRPA under the hardship exception provisions of the FHACA Rules and other relevant permitting programs cited in the response to comment above under which the SWM rules have been implemented. Since the Department amended the FHACA Rules and expanded the riparian zone along Category One waters to 300 feet in 2007, all encroachments within the SWRPA, which required a flood hazard area individual permit and were not otherwise provided for under prior N.J.A.C. 7:8-5.5(h), have been processed under the hardship exception provisions of the FHACA Rules at prior N.J.A.C. 7:13-9.8.

The SWRPA was never a “no-build” regulation. Instead, disturbance, while discouraged, was allowed in limited circumstances. (see page 118)

To justify this flagrant violation of their own regulations the DEP, after the fact, remarkably cites a response to comment in the 2004 rule adoption document!

The Department anticipated that unavoidable encroachments would need to be allowed when the SWM rules were adopted on February 2, 2004, and indicated that the hardship provisions, found in other permitting rules, created a process for allowing such encroachments (see response to comments 440-441, 36 N.J.R. 716).

Surely, DEP lawyers know that a response to comment has no legal standing and can not over-ride and justify violation of very clear regulatory prohibition.

No means NO.

And if that kind of abuse and Orwellian bullshit is allowed by the Legislature and the NJ Courts and legal community, then DEP’s regulations are meaningless.

Adding insult to injury, the DEP then very cynically and very politically points the finger of blame to Gov. Corzine’s DEP Commissioner Lisa Jackson.

More to follow.

[End note: Thus far, this is my favorite Alice in Wonderland or Orwell in the DEP’s response to comments (I am #193 who made comment 159)

159.COMMENT: In this proposal, the SWRPA is technically eliminated. The regulations under SWM rules are different due to scope, technical requirements, demonstrations, disturbance restrictions, and buffer width. The requirements are more stringent under the SWRPA than under the FHACA Rules. Eliminating the Category One buffers and relying on the FHACA Rules’ flood hazard area program will significantly reduce the level of protection for both water quality and flood prevention. (193)

RESPONSE TO COMMENTS 150 THROUGH 160: The riparian zone requirements under the FHACA Rules are protective of the special features of Category One waters, including water quality, water supply, threatened and endangered species, and fisheries resources. The fact that limited disturbances within the 300-foot riparian zone are authorized under the FHACA Rules does not mean that the riparian zone protections under FHACA Rules are less protective of water quality than the SWRPA.

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Sponsors of Highlands Act Urged to Veto Christie DEP Proposed Rollback of Groundwater Protection As “Inconsistent with Legislative Intent”

May 20th, 2016 No comments

An Open Letter

Wanaque Reservoir, Manhattan skyline

Wanaque Reservoir, Manhattan skyline

Dear Senator Smith and Assemblyman McKeon:

I am writing to you as prime sponsors of the Highlands Water Protection and Planning Act (Act).

On May 2, 2016, the Department of Environmental Protection (DEP) proposed amendments to the current septic system density standards in the Highlands Water Protection and Planning Act Rules (Highlands Rules) at N.J.A.C. 7:38-3.4(b). see this.

The proposed amendments would roll back and weaken protections of groundwater quality in the Preservation Area of the Highlands by increasing the allowable density of septic systems and thereby allow significant increases in development in the Preservation Area.

The DEP proposal itself estimates this increased allowable development:

The parcel analysis indicates that the proposed amendments to the septic system density standards could result in up to 1,145 additional septic systems, or about 12 percent more individual septic systems than under the existing rule. (@ page 19)

The proposal would violate the express legislative policy and standards of the Highlands Act and is inconsistent with legislative intent, as summarized below.

Contrary to the policy, standards, and legislative intent of the Act, the DEP proposal would

  • allow additional degradation of water quality, not prevent degradation
  • weaken regulatory protections, not strengthen them
  • promote development in the Preservation Area, not restrict it
  • ignore “deep aquifer recharge”, not consider and set septic standards based on it

Therefore, we urge you to exercise you Constitutional oversight and power to review and veto this DEP proposal as inconsistent with legislative intent.

I) Relevant Legislative Intent of the Act:

The following legislative findings express and form the relevant basis for understanding the current septic density standards and how the proposal would weaken them and conflict with legislative intent.

1. Prevent degradation of water quality from sprawl development

The Legislature expressed a clear and strong intent to preserve, among other things, the water quality of the Highlands region, for multiple reasons and the multiple benefits provided by clean water:

The Legislature further finds and declares that the New Jersey Highlands is an essential source of drinking water, providing clean and plentiful drinking water for one-half of the State’s population, including communities beyond the New Jersey Highlands, from only 13 percent of the State’s land area; that the New Jersey Highlands contains other exceptional natural resources such as clean air, contiguous forest lands, wetlands, pristine watersheds, and habitat for fauna and flora, includes many sites of historic significance, and provides abundant recreational opportunities for the citizens of the State.

The Legislature found that the primary threat to the resources of the region was land development, that must be strictly limited by stringent regulation:

The Legislature further finds and declares that, since 1984, 65,000 acres, or over 100 square miles, of the New Jersey Highlands have been lost to development; that sprawl and the pace of development in the region has dramatically increased, with the rate of loss of forested lands and wetlands more than doubling since 1995; that the New Jersey Highlands, because of its proximity to rapidly expanding suburban areas, is at serious risk of being fragmented and consumed by unplanned development; and 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.

2. Finding that existing DEP regulatory scheme was not adequate to protect water quality

The Legislature based the Act upon a finding that then existing DEP regulations – including the existing regulation of septic systems and groundwater – 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.”

3. Need to establish A New Strict DEP regulatory regime

Based upon the important water and natural resources of the region and the fact that current land use and DEP regulations cannot protect those resources, the legislature found:

that the State should take action to delineate within the New Jersey Highlands a preservation area of exceptional natural resource value that includes watershed protection and other environmentally sensitive lands where stringent protection policies should be implemented; that a regional approach to land use planning in the preservation area should be established to replace the existing uncoordinated system; that such a new regional approach to land use planning should be complemented by increased standards more protective of the environment established by the Department of Environmental Protection for development in the preservation area of the New Jersey Highlands

The Act set forth a:

“comprehensive approach to the protection of the water and other natural resources of the New Jersey Highlands, that this comprehensive approach should consist of the identification of a preservation area of the New Jersey Highlands that would be subjected to stringent water and natural resource protection standards, policies, planning, and regulation” …  that this comprehensive approach should also include the adoption by the Department of Environmental Protection of stringent standards governing major development in the Highlands preservation area.

The current DEP septic density rules are a core feature of the DEP’s comprehensive regulatory scheme authorized by the Act that was designed to implement these findings and provisions of the Act.

To understand the Legislature’s findings and intent regarding deficiencies in DEP’s regulatory framework with respect to the septic density standards, 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 regulatory framework that existed prior to the Act which the legislature found “cannot” protect the Preservation Area’s resources from development and sought to strengthen included the following significant limitations:

a) 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;

b) 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:

c) 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

Please keep in mind the key legislative, policy, and technical differences between the prior septic rules, the current septic rules that replaced them, and the proposed new septic rules that would weaken the current rules..

II) Legislative Standards for DEP Septic Density

The Highlands Act requires the Department to establish a septic density standard. 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):

a septic system density standard established at a level 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” See N.J.S.A. 13:20-32e.

The Legislative policy and standard for DEP’s regulatory septic density standard is to “prevent the degradation of water quality“.

Importantly, the regulatory septic density standard set by the Department must be done explicitly  “in consideration of deep aquifer recharge available for dilution”.

The current DEP septic density standards were derived based upon this preventive policy and standard.

DEP derived the current septic density standards based on “pristine” background groundwater quality conditions that did not reflect anthropogenic sources of groundwater pollution.

See DEP’s Basis & Background of the Septic Density Standard which correctly noted the legislative policy context (see: Nitrate Target Concentration, p.17)

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. […]

In light of the direction in the HWPPA to select a septic density that would not degrade water quality, the Department considered two land use scenarios, recognizing that the underlying ground water would have different ambient qualities depending on the presence/absence of anthropogenic inputs. The Department performed numerous exercises with available data and referred to numerous sources to assess ambient nitrate concentration specific to two land cover designations: forested and mixed land use. […]

To assess nitrate levels under conditions that best represent pristine in contemporary terms, the monitored wells were then selected based on the 500-meter buffer containing equal to or greater than 90% forest + wetlands + water, e.g., less than 10% urban, agricultural, or barren land use.

Accordingly, to reflect the clear Legislative intent and strict legislative preventative standard, the current DEP septic density regulatory standards are conservative and were based upon the following nitrate target concentrations

Two ambient nitrate concentration standards were selected, 0.21 mg/L for forest land use and 0.76 mg/L for mixed land use. (page 1)

III) Proposal Conflicts with Legislative Policy and Septic Density Standard

The DEP’s proposed new septic density standards conflict with both legislative intent and the legislative standards established by the Act.

The DEP proposal does not “prevent the degradation of water quality” as mandated by the Act. In fact, it explicitly allows degradation of water quality because the “target concentration” for pollution in groundwater is NOT based on “pristine” background conditions.

In the proposed new rules, 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 a side by side comparison of the current septic density standards and the proposed new standards.

Here is the NJ DEP Regulatory 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 about1.25 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 “nitrate target concentration” of  0.21 mg/L – and 0.76 mg/L based on “pristine” or natural background concentrations to the USGS median regional anthropogenic impacted values decreases lot sizes tremendously.

Th current lot sizes under the current septic density standards are 88 acres in forested areas and 25 acres on farmlands.

The proposed new lot sizes under the proposed new rule are 23 acres in forested areas and just 11 and 12 in farmlands.

By DEP’s estimate, the proposed new standards would increase development significantly:

The parcel analysis indicates that the proposed amendments to the septic system density standards could result in up to 1,145 additional septic systems, or about 12 percent more individual septic systems than under the existing rule. (proposal at page 19).

By definition and by the best available science, we know that increasing septic density and allowing at least 1,145 additional septic systems that discharge to Highlands Preservation Area groundwater – at least a 12% increase – will cause a decrease in water quality.

In addition to the direct discharge of pollutants from septic systems to groundwater, the development that uses these new septic systems will convert natural lands to impervious surface, which decreases recharge and increase runoff and non-point source pollution, which degrades and impairs surface water quality.

The DEP’s own projected results of the additional new development and ground and surface water degradation violate the letter and intent of the Act.

Additionally, the DEP’s proposed new septic density standards were not derived “in consideration of deep aquifer recharge available for dilution” as expressly mandated by the Act.

The DEP based the new standards on a USGS study. The USGS study relied almost exclusively (96% of data) on data from the NJ Private Well Testing Act. According to USGS own study, the source of the PWTA data was shallow residential wells and the data did not include well depth or aquifer, which are essential data attributes required to determine if “deep aquifer recharge” is considered. See the PEER complaint below for further discussion of this fatal flaw.

IV)  Inconsistencies with Legislative Intent

The DEP estimates that the proposed new rule would allow at least an additional 1,145 septic systems and significant new development in the Preservation Area.

That is contrary to the express intent of the legislature to prevent degradation of water quality, more strictly regulate development, and protect natural resources, as outlined above.

V) Flaws in USGS study that forms exclusive basis for proposal

The DEP proposal is based exclusively on a 2015 Report by the USGS.

The August 2015 study by scientists at the U.S. Geological Survey (USGS) is entitled “Median Nitrate Concentrations in Groundwater in the New Jersey Highlands Region Estimated Using Regression Models and Land-Surface Characteristics.” In an April 21, 2016 news release, the New Jersey Department of Environmental Protection (DEP) touted the study as “comprehensive new scientific information” which supported what the agency termed “common sense revisions to Highlands septic density standards.”

Rather than being based on either new or comprehensive scientific information, the USGS study is actually based on old state data of extremely poor quality and reliability. The PEER complaint points out that 96% of the study’s data is drawn from the state’s Private Well Testing program which even the DEP concedes is highly questionable for a number of reasons, including that the data is –

  • Unverified with no quality controls to confirm validity;
  • Skewed and not necessarily representative of the Highlands deep aquifer; and
  • Drawn from wells outside the Highlands Preservation Area.

In order to correct and remedy those flaws, Public Employees for Environmental Responsibility (PEER) filed a federal Data Quality Act complaint with the USGS, requesting that the flawed study be withdraw.

The PEER complaint goes into detail and provides an additional demonstration of how the proposed DEP rule is inconsistent with Legislative intent.

You may read the PEER petition here.

We urge you to defend the legacy of the Highlands Act, veto this DEP proposal as inconsistent with Legislative intent, and look forward to your pompt and favorable consideration.

Bill Wolfe,

Bordentown, NJ

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USGS Study Christie DEP Relied On To Rollback Highlands Protections Is Challenged Under Federal Data Quality Act

May 19th, 2016 No comments

NJ DEP Private Well Testing Act Data Lack QA/QC

Location bias and lack of basic geological features violate USGS science standards 

The federal Data Quality Act was passed by Congress in 2000 as part of an attack on regulatory agencies. According to a Congressional Research Service Report, some say the Act was designed to be used as:

a tool by which regulated parties could slow or even stop new health, safety, and environmental standards

The academic group Defending Science shares that view of the intent of the Act:

The law was in large part the brainchild of the Center for Regulatory Effectiveness (CRE), an industry-sponsored ‘regulatory watch-dog’ group. …

For proponents of the IQA such as the US Chamber of Commerce and CRE, IQA was a mechanism for “regulating the regulators.” Critics of the law – including public interest groups such as the Center for Progressive RegulationOMB Watch and Public Citizen – were concerned that a high volume of petitions would sap resources.

The law has been called “the nemesis of regulation”.

So it’s a sweet irony that I just deployed this tool to attack a regulatory rollback by the Christie DEP.

The fact that I drafted the legislative provision of the Highlands Act (i.e. the phrase “deep aquifer recharge“) and staffed Governor McGreevey’s Highlands Task Force and worked on the issue while with DEP only makes that irony sweeter.

The revolving door sometimes turns in the public interest! And the Arc of the Universe sometimes bends towards justice.

NJ Spotlight does a good job in reporting the story today, see:

Just a few points to expand upon that story and provide the underlying documents.

The challenge was filed by PEER, see:

In particular, the wonks out there might want to read the complaint which seeks:

Accordingly, PEER respectfully requests the USGS take the following steps to comply with the Information Quality Act:

1. Retract the “Median Nitrate Concentrations in Groundwater in the New Jersey Highlands Region Estimated Using Regression Models and Land-Surface Characteristics” study.

2. Issue a public statement explaining the reasons for this retraction.

3. Send a letter to the NJ DEP Commissioner requesting that that agency refrain from relying on this retracted report for any regulatory or public health purpose.

The USGS study in question admits that it is spatially biased, a point we highlight in the complaint.

USGS also admits that the data does not provide essential geological information, such as well location, depth, or aquifer – critical attributes that are included in USGS’s own well data.

In addition, as the USGS study admits, shallow residential wells are influenced by nearby septic systems and other anthroprogenic sources of nitrate, and therefore can never characterize “deep aquifer” conditions or background groundwater quality, as required by the Highlands Act.

But, what may be the killer argument, is the fact that the underlying data for the USGS study did not undergo quality assurance/quality control (QA/QC) review. That failure alone conflicts with USGS’s own standards for scientific reports.

The source of this data (96% of it) is the NJ Private Well Testing Act.

The NJ DEP itself noted critical limitations in this data, including the fact that it did not undergo QA/QC review.

The DEP’s Private Well Testing Act Report warns about lack of QA/QC and other limitations and flaws in the PWTA data (see page 5, “Limitations of the Data”)

Several factors may affect the measurement and quality of the data collected as part of the PWTA and utilized in this report. These factors include sample collection and transport, laboratory analysis, accuracy of related well location information, and data entry and reporting. Any of these factors, if handled improperly, could result in an unwarranted test failure or approval. Since no state agency has the ability to verify that all real estate transactions (sales and leases) subject to testing under the PWTA have been reported to NJDEP, the absence of results, along with errors or mistakes in the reported data, could have a significant impact on the evaluation and interpretation of the data presented. The following identifies some key issues concerning PWTA data: […]

Analysis and Data Reporting – The PWTA Program testing data are submitted electronically and are automatically entered into the database without any quality control or quality assurance reviews. It is assumed that the certified laboratory properly met all required protocols and the data are accurate. The PWTA Program relies on the reporting laboratory to catch and correct any data entry errors.

The USGS Report also used a bizarrely high “Method Detection Limit” (MDL) to classify 23% of the PWTA data as “Non-Detect” (ND), as high as 10 mg/L nitrate. That is an MDL that is orders of magnitude higher than what DEP certified laboratory and various EPA regulations require.

While not a science or data flaw, the statistical metric chosen, i.e. median value, by definition considers degradation of background water quality because a median value is “the number separating the higher half of a data sample, a population, or a probability distribution, from the lower half.” (Wiki)

The median statistic contradicts the legislative standard in the Highlands Act to prevent degradation of groundwater

Finally, the USGS knew – or should have known – about the DEP’s methodology and basis for the current Highlands septic density standard (which relied on USGS well data, not flawed NJ PWTA data) and how that methodology reflected the Highlands Act non-degratation policy and derived “deep aquifer” protections based on background nitrate levels.

The USGS knew – or should have known – that this DEP standard was subject to a lawsuit filed by the NJ Farm Bureau and was a core protection of the Highlands.

As such, their work on this study undermined the public trust and confidence in USGS, as a science based organization independent from politics.

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