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Christie DEP Finds That Pipelines Crossing Streams Have “No Impact” On Them

September 26th, 2016 No comments

DEP Dirty U-Turn 

NJ Natural Gas Withdraws Stream Permit, qualifies for deregulated DEP approval

In a remarkably corrupt, cynical and significant regulatory move, the Christie DEP just determined that a pipeline crossing a stream will “not disturb the stream in any way“, thereby virtually deregulating pipeline stream crossings.

Just as pipeline activists finally began to focus on the achilles heel of pipeline regulatory vulnerability – the DEP Clean Water Act water quality certificate requirements –  the Christie DEP and lawyers for NJ Natural Gas’ Southern Reliability Link (SRL) pipeline have made an end run around that vulnerability.

The regulatory U-Turn stunt recalls the equally brazen move to skirt Pinelands Commission approval and public hearing requirements.

DEP just very quietly determined that “horizontal directional drilling” (HDD) – i.e jacking a pipeline under a stream – does not create any impact on the stream, i.e. does “not disturb the stream in any way

The proposed NJNG SRL pipeline will cross 43 streams.

Under the Clean Water Act and NJ State Water Quality Standards, NJNG was highly vulnerable to legal challenges of DEP approvals of those crossings, based on adverse impacts to water quality (i.e. existing physical, chemical, and biological characteristics).

DEP made this determination on the NJ NG SRL pipeline through the Pinelands.

But this DEP determination will set precedent for all pipelines. And it will impact not only Flood Hazard Area permits, but other DEP regulatory approvals under the Clean Water Act and NJ State water quality standards.

First, here’s what happened (correspondence provided upon request, h/t Teressa Lettman of PPA) – then we’ll tell you what it means.

1)  On August 29, 2016, NJNGas withdrew their Flood Hazard “Individual Permit” (IP) Application for the pipeline route. That permit application had been under review by DEP for over 1 year and public hearings were scheduled.

2)  On September 12, 2016 NJNGas submitted a new application for a Flood Hazard Applicability Determination for a “Permit By Rule” (PBR).

3)  On September 16, 2016 the NJ DEP issued a PBR eligibility determination– DEP found that no formal IP authorization for the proposed project was required and that the pipeline qualified instead for PBR’s under Flood Hazard rules.

A “permit by rule” is essentially deregulation – there is no permit application that is reviewed by DEP. Instead, NJNG privately certifies compliance with vague regulatory requirements. There is no public hearing and no opportunity for the public to comment on a PBR, and no obligation that the DEP respond to public comment. It is not even clear if and how a PBR can be legally challenged administratively and in the courts.

Basically, briefly, the argument is this:

1) Under DEP Flood Hazard Act regulations (NJAC 7:13-7.36), in order to quality for a permit by rule (PBR), the pipeline jacking and/or crossing the stream must “not disturb the stream in any way“.

In making the PBR “applicability determination”, DEP thereby agreed that the pipeline crossing would “not disturb the stream in any way“, via the determination that the project was eligible for the PBR.

This is a highly substantive determination (legally and scientifically/factually) because it determines regulatory requirements and outcomes, including for related DEP permits and approvals.

2) By making this finding, DEP just eliminated any possible water quality standards or Clean Water Act Section 401 Water Quality Certificate challenges we could make.

If a stream crossing does not “disturb the stream in any way” there is no way DEP can deny a water quality certificate or find a violation of State DEP Water Quality Standards.

Totally corrupt.

This DEP determination that a PBR applies must be challenged legally as “final agency action” made without any public process (lack of due process) and that lacks any scientific basis (arbitrary and capricious).

Also keep in mind that DEP Assistant Commissioner Ginger Kopkash testified to the Senate Environment Committee during consideration of legislative veto resolution SCR 66 on the DEP’s Flood Hazard rules that DEP would never issue a “permit by rule” or “general permit” to a pipeline – she said an individual permit would be required.

The DEP’s new FHA rules that survived that veto made it easier to approve pipelines across streams.

The Christie DEP weakened regulatory standards and made it easier by: 1) eliminating a prohibition on disturbance of Category One stream buffers; 2) increasing the allowing disturbance of soils and vegetation in the “riparian zone”; 3) eliminating a cap on riparian disturbance and allowing mitigation; and 4) relaxing a restriction on eligibility for the “permit by rule” to exempt impacts from certain pipeline related construction activities that disturb vegetation and soils and negatively impact water quality.

We warned legislators and readers about this during the SCR 66 debate.

This is the PBR DEP just found that SRL qualifies for under the weakened FHA standards.

So, on top of the horribly corrupt policy and DEP approval process, we have more DEP lies.

There is an audio tape of the Senate hearing that some intrepid reporter might want to listen to and ask Ms Kopkash and her collaborators at the DEP press office about in light of the SRL PBR determination.

[End Note: Here is what DEP said about the very limited nature of Permit By Rule in the Flood Hazard rule proposal – obviously a lie in light of the SRL PBR decision:

Activities authorized under the existing permits-by-rule are also generally limited to activities that do not constitute a “major development,” which is defined under the SWM rules at N.J.A.C. 7:8-1.2 to be a project that disturbs an acre of land and/or results in the creation of one-quarter an acre of impervious surface. Therefore, under many permits-by-rule, a person can undertake an activity that results in the loss of up to one-quarter an acre of riparian zone vegetation where “previous development or disturbance has occurred.” However, a person intending to undertake a project for which all requirements of a given permit-by-rule are not met must instead apply for and receive an authorization under a general permit or an individual permit under this chapter. In the majority of cases, an individual permit must be obtained, which subjects the activity to the requirements of existing Table C. Since the limits of Table C are in many cases much more stringent than that which could be allowed under a permit-by-rule for similar activities, this has led to an inconsistent approach toward riparian zone protection and has caused confusion among the regulated community. In order to harmonize the types of activities allowed under the different permits within this chapter, proposed N.J.A.C. 7:13-11.2(f)1 provides that the net loss of up to one-quarter acre of riparian zone vegetation within an actively disturbed area is not subject to proposed Table 11.2. 

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The Chromium Pipe Treatment

September 22nd, 2016 No comments

Christie DEP Rejected Scientists’ Recommendations On Drinking Water Standard for Carcinogenic Heavy Metal Chromium

Press Office Attacks Critic

“Hate that fucker,” Drewniak wrote to David Wildstein, the chief Bridgegate conspirator. “I want to beat him with a lead pipe…That would put everyone on notice.” Tom Moran column, “Christie’s Pals Want To Kill Me

Does the NJ press corps know the difference between rhetoric and reality? Do they care more about their own personal pecadillos than public health?

The ugly lead pipe metaphor -which got saturation media play – was obviously just nasty rhetoric.

But failure to regulate known carcinogens in public water supplies actually does kill people – and it got virtually squat in media circles.

Although you wouldn’t know it from reading the NJ newspapers, NJ has a long and sordid history with respect to public health risks and lax DEP regulation of the toxic heavy metal chromium, see:

The most recent chromium scandal is now playing out as a result of a national Report by the Environmental Working Group (EWG).

Based on EPA data, EWG that found that over 200 million Americans are exposed to unsafe levels of the carcinogen in drinking water, see the Newsweek story:

Bill Wolfe, with Public Employees for Environmental Responsibility, a group that protects government whistleblowers, says the EPA is “absolutely not” doing its job to protect the public from chromium, and that it’s a case that “illustrates undue influence—agency capture—by major corporate polluters.”

The EWG national Report prominently featured New Jersey, and in doing so exposed gross negligence by the Christie DEP.

The Christie DEP ignored DEP’s own scientists’ recommendations to set a chromium drinking water standard of 0.07 parts per billion, recommendations issued way back in September 2010.

The initial EWG Report noted:

In New Jersey, the press reported the water quality institute’s recommendation before it could be formally submitted to the Department of Environmental Protection for development of a regulation. This angered Department of Environmental Protection Commissioner Bob Martin, who was appointed by Gov. Chris Christie. He not only blocked submission of the recommendation, but effectively stopped the institute from meeting for four years,15 delaying drinking water regulations for more than a dozen chemicals.

The final version was softened, in response to DEP press office threats:

“In New Jersey, the press reported the water quality institute’s recommendation before it could be formally submitted to the Department of Environmental Protection for development of a regulation. According to former DEP planner Bill Wolfe, now an environmental advocate, this angered Department of Environmental Protection Commissioner Bob Martin, appointed by Gov. Chris Christie. Wolfe said Martin not only blocked submission of the recommendation, but effectively stopped the institute from meeting for four years,[15] delaying drinking water regulations for more than a dozen chemicals.

The final Report notes NJ’s battle:

Battles in New Jersey, North Carolina

Scientists in California’s Office of Environmental Health Hazard Assessment are not alone in determining that extraordinarily low levels of chromium-6 in drinking water can cause cancer.

In 2010, New Jersey’s Drinking Water Quality Institute, a state agency comprised of scientists, utility officials and citizen experts, calculated a health-based maximum contaminant level – what California calls a public health goal – of 0.06 parts per billion, just slightly higher than California’s.[12] This year, scientists in North Carolina’s Department of Environmental Quality, also drawing on the 2008 National Toxicology Program study that drove the California goal, calculated a do-not-drink level matching the New Jersey number.[13][14]

But neither New Jersey nor North Carolina has set a legal limit for chromium-6 in tap water. In both states, scientists’ health-based recommendations were at odds with the decisions of politically appointed regulators.

As I expected, that set the Christie hacks off and the DEP press office immediately sprung into attack mode to suppress that story in NJ media. To do that, they again smeared me personally.

This email was sent to EWG and reporters by DEP spokesman Bob Considine:

Unfortunately, you’re sourcing a disgruntled former DEP employee who was dismissed from here and is not telling the truth.

According to EWG, the Christie DEP press office essentially threatened them if they didn’t revise the Report – ironically on the same day of press reports of Gov. Christie’s spokesperson using the “lead pipe” threat.

EWG caved into that threat and revised the text of their Report, something I objected to and got this “apology” reply from EWG:

Bill,
I’m sorry you are disappointed, as I have profound respect for you and the work you have done and am very much hoping we can continue a relationship.

The simple truth is that we did not have the time or space to explain your proofs in detail, although we completely believe them. DEP was threatening what amounted to a nuclear counterattack on our credibility and the most efficient way to deal with it was to tell them they could have a couple of sentences in response. If the report had been one dealing with New Jersey in detail, we would have dug deeper and presented the evidence showing you are right.

Despite the fact that I sent NJ Spotlight reporter Jon Hurdle the evidence to back up my claim, he too was intimidated by the Christie DEP smear and did not print the full story about the recent DEP rejection of scientific recommendation back in 2010.

So here it is, from the Drinking Water Quality Institute’s meeting minutes for September 10, 2010:

3. Subcommittee Summaries—Subcommittee Chairpersons Health Effects—L. McGeorge: She noted first that the Subcommittee had adjusted its workplan, delaying action on radium and tertiary butyl alcohol to the first quarter of 2011; they would consider adding nitrates to their workload at a future meeting. Second, after A. Stern’s presentation at the previous Health Effects Subcommittee (HE) meeting on the slope factor developed by the NJDEP Chromium Workgroup for oral exposure to hexavalent chromium, the HE had accepted this slope factor as the basis for a Health-based MCL recommendation for hexavalent chromium at its September meeting. L. McGeorge distributed copies of a memorandum to the Testing and Treatment Subcommittees, recommending a health-based maximum contaminant level (HBMCL) of 0.07 μg/L for hexavalent chromium based on this slope factor.

 If readers have any doubts about this story, they can visit the video archives of NJN TV. Environmental reporter Ed Rogers broadcast a story on the evening news in which I was interviewed and supported the chromium recommendations of the health effects subcommittee.

Or readers could look into why the Chairwoman of the health effects subcommittee at the DWQI was removed after making that recommendation at that meeting.

She too got the Chrome Pipe Treatment.

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Christie DEP Continues To Commercialize and Ruin State Parks

September 14th, 2016 No comments

A Tiki Bar Is Going Too Far

Island Beach State Park gem is commercialized with tawdry Tiki bar

Another shoe drops as a result of the “Keep It Green” theft of State Park Funds

red fox at Island Beach SP

red fox at Island Beach SP

We’ve written about this topic numerous times – see “Christie DEP Managing NJ State Parks, Public Lands & Forests As Cash Cows – a disaster for NJ State Parks and public lands.

The disaster is a result of the Christie DEP’s warped “Sustainable Parks Strategy”, which was compounded by the theft by the “Keep It Green” coalition of State Parks funds for open space.

The policy was imposed by unilateral DEP edict, with no public hearings or ability to comment and no legislative policy authorization.

Not only is a Tiki Bar completely incompatible with Island Beach State Park’s mission and natural resources, but there are plenty of places to get hammered on the Jersey Shore (I hope someone holds DEP Commissioner Martin personally liable when the inevitable DWI or drunk drowning deaths result).

I would have thought DEP would have learned something from the Liberty State Park debacle.

So No comment on the latest – other than it takes a very big pair of balls to name the place for the red fox – and has Jeff Tittel gone soft?

Read the NJ.Com story and weep

dunes2

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Whitman’s 9/11 Lies Were Not The First Time She Lied About Significant Public Health Risks Of Exposure To Toxic Chemicals

September 11th, 2016 No comments

After 15 Years and Thousands Dead & Dying, Whitman issues a self serving non-apology

Whitman’s prior lies about toxic mercury as NJ Governor should have disqualified and blocked confirmation as EPA Administrator

Senators Corzine, Torricelli & Committee Chair Boxer Supported Whitman, Helped Whitewash Record in NJ

Source: US EPA Inspector General Report

Source: US EPA Inspector General Report

Former NJ Governor Christie Whitman is in the news today on the 15th anniversary of 9/11 for what is shamelessly being portrayed as an “apology” and admission of errors in her repeated false statements that the air was safe to breath (see The Guardian who broke the story and The Bergen Record followup).

But Whitman pulls a Bill Clinton in parsing the words of both her so called “apology” and admission of error –

Note how Whitman unequivocally says she’s sorry that people got sick, but qualifies her own responsibility. She goes even further in The Record followup story and injects doubt about whether people even got sick and if it were EPA’s fault, qualifying and diminishing her own responsibility.

Paraphrasing Bill Clinton, I guess it all depends of the definition of “if”:

The Guardian:

“I’m very sorry that people are sick,” she said. “I’m very sorry that people are dying and if the EPA and I in any way contributed to that, I’m sorry.

The Record:

If people died because we made a mistake, then of course I feel awful,” she said in an interview Saturday.

“If ” people died? Ask the family of Joe Picurro of Toms River, NJ, who died.

In both news stories, Whitman clings to the lie about the science and Whitman’s claims that her statements were based on EPA scientists’ recommendations:

The Guardian:

“Everything that I did or said was based on the scientists, what their readings were telling them. I’m not going to secondguess the scientists because I’m not a scientist.”

That is another Whitman lie even the EPA Inspector General Report destroyed:

EPA’s early public statements following the collapse of the WTC towers reassured the public regarding the safety of the air outside the Ground Zero area. However, when EPA made a September 18 announcement that the air was “safe” to breathe, it did not have sufficient data and analyses to make such a blanket statement.

cheney6

But I want to tell a tragic  story about Whitman as Governor that foreshadowed her EPA 9/11 lies.

Had this scandal been taken seriously by the media and the US Senate at the time, there is no way Whitman would have been confirmed as EPA Administrator.

I know it well, having sacrificed my career at DEP over it and been forced out of DEP by Whitman and her political hacks as a whistleblower.

The Story that should have disqualified Whitman as EPA Administrator

Sworn testimony of a former NJ Department of Environmental Protection (DEP) Assistant Commissioner reveals that then NJ Governor Christie Whitman lied to the people of NJ about serious health risks – particularly to pregnant women, nursing mothers and their babies – of high concentrations of toxic methyl mercury in NJ freshwater fish.

The testimony names and implicates Whitman personally, by referring to hand written notes she wrote to DEP Commissioner Shinn in the margin of prior negative news stories about the risks of mercury, stories that specifically criticized the Governor for her false statements on the mercury issue.

The testimony reveals that the lies were part of a scheme cooked up by DEP and Whitman to discredit, inject false uncertainty into, and downplay the findings of a scientific study that found high levels of mercury in NJ freshwater fish.

The testimony names and shows that the scheme directly involved DEP Commissioner Shinn and his legal Counsel Mike Hogan – Hogan later was the Superior Court Judge who ruled in the highly controversial recent Christie DEP settlement of the Exxon $8 billion Natural Resource Damage case.

By lying about the reliability of this study,  DEP could continue to issue permits for planned garbage incinerators and a coal plant in south jersey – major sources of mercury – and avoid economic impacts to the recreational and commercial fishing and food industries, as well as DEP’s own fishing license revenues.

Whitman’s lies about mercury presaged her 9/11 lies and should have disqualified her from her subsequent EPA post in the Bush Administration.

But at that hearing, Whitman was introduced and supported by NJ’s Democratic Senators Torricelli and Corzine, enabling her record as NJ Governor to be whitewashed and not seriously probed by the Senate Committee.

The Whitman DEP appointees – Commissioner Shinn, Legal Counsel Hogan and Chief of Staff Mark Smith – then conspired to retaliate against the whistleblower who exposed this scheme. All are named and specifically implicated in the testimony.

But before we tell the complex story and provide excerpts and links to the sworn testimony, lets first lay the relevant scientific background – the boldface emphases are mine. Keep the boldface text in mind when you read the sworn testimony.

Mercury is highly toxic

Mercury bioaccumulates and biomagnifies up the food chain and is a more potent neurotoxin than lead, particularly for prenatal exposure (see this ATSDR toxicological profile for health effects).

Dietary intake is the most important source of nonoccupational exposure to mercury, with fish and other seafood products being the dominant source of mercury in the diet. Most of the mercury consumed in fish or other seafood is the highly absorbable methylmercury form. […]

Members of the general public with potentially high exposures include individuals who live in proximity to … municipal or medical incinerators, or coal-fired power plants. Other populations at risk of exposure include recreational and subsistence fishers who routinely consume meals of fish that may be contaminated; subsistence … and pregnant women and nursing mothers (including their developing fetuses and breast-fed infants) who are exposed to mercury from dietary, medical, or occupational sources,

Methylmercury constitutes over 99% of the total mercury detected in fish muscle tissue, with no detection of inorganic or dimethylmercury (Grieb et al. 1990; Bloom 1992). (Source: see ATSDR Potential For Human Exposure)

Scientists are especially concerned about impacts on children and developing fetus: (see Section 1.6 of ATSDR Public Health Statement)

Methylmercury is the form of mercury most commonly associated with a risk for developmental effects. Exposure can come from foods contaminated with mercury on the surface (for example, from seed grain treated with methylmercury to kill fungus) or from foods that contain toxic levels of methylmercury (as in some fish, wild game, and marine mammals). Mothers who are exposed to methylmercury and breast-feed their infant may also expose the child through the milk. The effects on the infant may be subtle or more pronounced, depending on the amount to which the fetus or young child was exposed. In cases in which the exposure was relatively small, some effects might not be apparent, such as small decreases in IQ or effects on the brain that may only be determined by the use of very sensitive neuropsychological testing. In instances in which the exposure is great, the effects may be more serious. In some such cases of mercury exposure involving serious exposure to the developing fetus, the effects are delayed. In such cases, the infant may be born apparently normal, but later show effects that may range from the infant being slower to reach developmental milestones, such as the age of first walking and talking, to more severe effects including brain damage with mental retardation, incoordination, and inability to move. Other severe effects observed in children whose mothers were exposed to very toxic levels of mercury during pregnancy include eventual blindness, involuntary muscle contractions and seizures, muscle weakness, and inability to speak. It is important to remember, however, that the severity of these effects depends upon the level of mercury exposure and the length of exposure. The very severe effects just mentioned were reported in large-scale poisoning instances in which pregnant and nursing women were exposed to extremely high levels of methylmercury in contaminated grain used to make bread (in Iraq) or seafood (in Japan) sold to the general population.

Researchers are currently studying the potential for less serious developmental effects, including effects on a child’s behavior and ability to learn, think, and solve problems that may result from eating lower levels of methylmercury in foods.A main source of exposure to methylmercury for the pregnant woman and the young child is from eating fish.

Highlights of the sworn testimony

Come back for part 2 of this post tomorrow, where we tell the NJ mercury coverup story, excerpt the sworn testimony, and provide links to all the documents so you can read the whole story.

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Beauty

September 10th, 2016 No comments

nights

 

Beauty I’ve always missed 
With these eyes before
Just what the truth is
I can’t say any more
‘Cause I love you 
Yes I love you
Oh how I love you ~~~ Nights in White Satin (Moody Blues, 1967)

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