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Which Way Is The American Way?

December 29th, 2018 No comments

Corporate Right Wing Attacks On FDR’s New Deal Still Alive & Well

Not so subtle propaganda seeks to equate capitalism with "the American Way" (Source - National Association of Manufacturers billboard, Dubuque, Iowa, 1940. (John Vachon/Library of Congress)

Not so subtle propaganda seeks to equate capitalism with “the American Way” (Source – National Association of Manufacturers billboard, Dubuque, Iowa, 1940. (John Vachon/Library of Congress)

At a time when the Democrats and the US media seems incapable of informing the American people just what government does and what the impacts of Trump’s government shutdown are, and while calls for a “Green New Deal” – led by The Sunrise Movement – are rising throughout the land, clear understandings of the benefits of government and the history of the economic and political forces that led to – and vigorously opposed – the New Deal are required.

The same corporate right wing forces that viciously opposed FDR’s New Deal in the 1930’s were the same forces behind the 1971 Powell Memo that has led to our current entrenched Neoliberal right wing crisis of the Trump administration.

Much like today’s paranoid right wing attacks on progressive or left movements – and prior red scares – Powell wrote:

Dimensions of the Attack

No thoughtful person can question that the American economic system is under broad attack. This varies in scope, intensity, in the techniques employed, and in the level of visibility.

There always have been some who opposed the American system, and preferred socialism or some form of statism (communism or fascism). Also, there always have been critics of the system, whose criticism has been wholesome and constructive so long as the objective was to improve rather than to subvert or destroy.

But what now concerns us is quite new in the history of America. We are not dealing with sporadic or isolated attacks from a relatively few extremists or even from the minority socialist cadre. Rather, the assault on the enterprise system is broadly based and consistently pursued. It is gaining momentum and converts.

There is an organization called The Living New Deal that is a repository for much of that history – hit the link below and contribute to their efforts, as well as those of the current Sunrise Movement:

The mission of the Living New Deal is three-fold: research, presentation and education.  It begins with the historical work of uncovering the immense riches of New Deal public works. That research is then made available to all through digital mapping and a website that serves as a clearinghouse for information on the New Deal. And, finally, the information gained from our work is disseminated as widely as possible through newsletters, social media, written media, interviews, lectures and other public events. ….
The New Deal was America’s all-out response to unemployment, homelessness, and social inequality ‹when government¹s highest goal was helping ordinary people prosper.
Your donations to the Living New Deal are tax deductible. We are grateful for your support.
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Rutgers Covering Up Their Role In Drafting Flawed Climate Change Legislation

December 20th, 2018 No comments

Rutgers Denies OPRA for Records On Recommendations On Climate Legislation

I find Rutgers’ attempts to cover up their role in drafting a critically important piece of climate legislation contemptible as a matter of academic and scientific integrity and public policy.

[Update below]

Rutgers University just denied my Open Public Records Act (OPRA) request for public records regarding the role of the University in drafting seriously flawed climate legislation. Here’s the story:

On December 3, 2018, the Senate Environment Committee heard and released S3207, a bill purporting  to:

Establishes new timeframes for implementation of certain requirements in“Global Warming Response Act”; requires DEP to adopt strategy to reduceshort-lived climate pollutants.

During the hearing, Chairman Bob Smith, while voting to approve and release the bill, interjected “giving credit where credit is due”, to praise Jeanne Herb of Rutgers University for giving him the idea to introduce the bill.

I found that statement extremely interesting, for several important reasons (and not to trigger a climate denialist attack on science email scandal that we’ve seen before):

1) as I wrote, the bill is seriously flawed and misleading. Did those flaws originate in Rutgers’ recommendations or Senator Smith’s directions to OLS in drafting the legislation?

2) In September 2017, Rutgers released a comprehensive Report on climate change titled: An Examination of Policy Options for Achieving Greenhouse Gas Emissions Reductions. Ms. Herb was one of the authors of that Report.

The Report has sections titled “Analysis of Existing NJ legal Authorities “ and “NJ’s General Authority To Regulate Greenhouse Gas Pollution“. The Report uses the word “legislation” 76 times, and the word “regulation” 165 times.

Among other things, the Rutgers Report documented and made specific recommendations for new legislation and regulation to address major gaps and flaws in current NJ laws and DEP regulations regarding climate change.

The Rutgers findings included the fact that DEP deregulated GHG emissions in 2005, a vitally important fact directly relevant to Smith’s bill and that is not widely understood by the media, the public, environmental groups, or legislators. Rutgers wrote: (citations omitted, at pages 165-166):

NJDEP has affirmed that “air pollution” as it is defined under the APCA is broad enough to encompass GHGs. In 2005, NJDEP promulgated a regulation that revised existing regulatory definitions to clarify that CO2—as a GHG—met the definition of an air pollutant under the Act. The agency exempted CO2from existing regulatory requirements, but did require that stationary sources report emissions of CO2 and methane as an air pollutant. In the regulatory action, the agency also indicated that the other five GHGs commonly included in the basket of GHGs were air contaminants for the purposes of the Act.

That Repot received favorable new coverage, see:

However, the flawed bill, S3207, failed to incorporate any of the recommendations of the Rutgers Report.

How could Chairman Smith praise Ms. Herb when his legislation ignored virtually all of the recommendations of the Rutgers Report Herb authored ?

3) Prior to joining Rutgers, from 2002 – 2010, Ms. Herb was head of DEP’s Science and Policy unit and was directly involved in three major climate related policy initiatives:

a) the 2005 DEP regulation that defined greenhouse gases as air pollutants under NJ law, a move that anticipated the US Supreme Court’s groundbreaking decision in the “Massachusetts” case. However, that same rule, which DEP highly touted at the time, actually deregulated the emissions of GHG’s.

b) the passage and DEP implementation of the Global Warming Response Act, including drafting the 2009 Report required by the GWRA.

c) the passage and DEP regulatory implementation of RGGI.

Accordingly, Ms. Herb has been involved in over a decade of DEP climate change science, policy, regulation and public relations. For an analysis of that history, with links to all the documents, see:

4) In prior legislative testimony in Trenton before Smith’s Committee, it had been the policy of climate scientists at Rutgers to limit their role in the Trenton legislative and regulatory arena strictly to science, and actively avoid discussing legislative, policy and regulatory issues.

I was critical of that practice and called it basically an abdication of scientific responsibility, see:

Chairman Smith’s praise of Ms. Herb in suggesting the legislation directly contradicted prior Rutgers policy.

5) for over a decade, myself and others had been testifying before Smith’s Committee, writing Reports and issuing press releases, about all this, so the Rutgers Report and Ms. Herb’s recommendations could not have been new to Smith.

So, to get a better understanding of what actually transpired between Chairman Smith and Ms. Herb and to understand Rutgers’ role in drafting the bill, on December 5, 2018, I filed an OPRA for the public records regarding communications between Ms. Herb and Chairman Smith.

My OPRA requested:

Records Requested: On Monday 12/3/18, NJ Senate Environment Cmte. Chairman Bob Smith stated, during an open Senate Cmte. hearing, that Jeanne Herb of Rutgers University (Associate Director of the Environmental Analysis and Communications Group at the Edward J. Bloustein School of Planning and Public Policy) contacted him and was involved in the drafting of Senate bill #3207, regarding implementation of the Global Warming Response Act. I request all communications between Ms. Herb and Senator Smith and OLS staff, including emails, phone records, meeting notes, and correspondence regarding S3207 and climate change in general (e.g. adaptation, mitigation, & Rutgers research).

Two days later, just before 5 pm on a Friday, Mr. Casey Woods, Rutgers OPRA Custodian responded, with this reply that claimed my request was “unclear” and “overly broad”, and went on to cite Government Records Council Guidelines and a Court case to support that claim:

This request is unclear and overly broad as written. A search for “any and all” correspondence or communications would be impossible to conduct. This letter seeks to clarify what documents you are seeking from the University. You may narrow your request by specifying a specific type of record or records and by including a time frame so that we may conduct a search for responsive records. If you are seeking emails specifically, we would require a sender/recipient, keyword or phrase, and a date range to conduct a search.

I immediately phoned Mr. Woods and we had a robust discussion.  I advised that my request met the specific GRC Guidelines he cited and was in fact not overly broad” and was precise, not “unclear”.

I did agree to revise the word “”any and all” records to “every” record, and explained why in a followup email:

The reason I used the term “all” was to assure I was provided 100% of the records requested, i.e. to capture the entire universe of public records. If I didn’t use that term, a partial response by Rutgers would have been responsive. For example, if I omitted the term “all” and there were 3 emails between Ms. Herb and Senator Smith and Rutgers provided 2 of them, that would be responsive.

Accordingly, I am submitting this reply clarification without surrendering my original request for “all” public records requested. However, in the interests of clarity, I will revise the term “all” to “every”. The remainder of my original request stands.

You make a fair point regarding the timeframe of the request. My original request was not time bounded. During our phone conversation, I clarified that timeframe to January 1, 2018 to the present. However, I would like to revise that timeframe back to August 1, 2017. The reason I do so is that in September 2017, Rutgers publicly issued a Report supervised and/or written by Ms. Herb on directly relevant climate issues. I chose August in the event that Ms. Herb provided legislators, OLS staff, or Senator Smith a pre-release briefing.

So, it appeared that Rutgers had backed off the “overly broad” and “unclear” claims, and agreed to provide responsive records.

So, I was blindsided and shocked today to receive a flat out denial from Rutgers, and NOT on the bases they originally asserted and Mr. Wood and I discussed at length (i.e “overly broad” and “unclear”).

Rutgers moved the goalposts, and denied the OPRA on the basis of an alleged legislative exemption.

Here’s the full text or Rutgers’ denial:

The University has reviewed your request and determined that any records responsive to this request would be exempt as legislative records. OPRA specifically exempts legislative records, including “any memorandum, correspondence, notes, report or other communication prepared by, or for, the specific use of a member of the Legislature in the course of the member’s official duties.” Therefore, your request for legislative records is denied. 

How is it possible that a publicly funded public University can deny public records regarding the scientific recommendations of their staff to a public legislator on legislation?

What about transparency, accountability, and scientific integrity? The public trust in and perception of the University as a science based, non-partisan, intellectual broker?

Surely, the legislative exemption in the OPRA statute was intended and written to apply to the lobbying efforts of private individuals, lobbyists, and attorneys representing private sector clients, not public university science.

I find Rutgers’ attempts to cover up their role in a critically important piece of legislation contemptible as a matter of academic and scientific integrity and public policy.

[Update: I left out two points:

1) Ms. Herb was a political appointee in the McGreevey and Corzine Administrations. Her initial career at DEP was boosted during the Florio administration as a result of her former spouse, Jeff Scott, who was then a CWA 1034 staffer and covert Democratic political operative.

Surely, Rutgers is aware of this Democratic partisan background, which would suggest that they bend over backwards to avoid an appearance of partisan activity.

2. In another example of  “arsonists are the best firefighters” and revolving door abuses, I note that the Rutgers Report received “expert peer review” from, among others,  Samuel Wolfe, of Viridity Energy Solutions, Inc. and Steve Gabel, of Gabel Assc.’s., the only two private sector “peer reviewers”.

Both Wolfe and Gabel are former high level DEP officials and have close relationships with Ms. Herb and Trenton Democrats. In addition to the partisan and “friend of the Report’s author Jeanne Herb” concerns, both have potential bias and conflict of interest issues.

Mr. Wolfe (no relation) began at DEP in the late 1980’s in the Office of Regulatory Affairs. He is a smart and hard working lawyer. I worked with him on various regulatory issues. He left DEP to join PSEG and then later was a political appointee at the McGreevey DEP in 2002, serving as Asst. Commissioner for Environmental Regulation.

In that capacity, Wolfe not only worked on regulatory and policy issues related to his former employer PSEG, he was directly involved – more so than Ms. Herb – in the 2005 gross deception on the DEP regulation that deregulated GHG emissions.

So, Wolfe now conducts “expert peer review” in the Rutgers Report, a critique of the poor regulatory policy he crafted at DEP back in 2002. How can one credibly peer review their own work?Readers of the Report would have no way of knowing any of this important background information.

Mr Gabel is a former BPU and DEP official. I worked for him during the McGreevey administration, when Gabel was a political appointee, transferred from BPU to the DEP Director Of the Division of Solid Waste (part of Gov. Florio’s consolidation of DEP with certain energy regulation at BPU, to form DEPE. ).

Gabel is an expert and, as a former regulator, clearly understands the disastrous policies of privatization and deregulation, as he was involved in the “McEnroe” deregulation of BPU economic regulation of garbage incineration “service agreements”. That McEnroe law set up a private deregulated procurement process that grossly ripped off the public.

Despite this knowledge and experience, he left DEP to benefit from the Whitman deregulation of the energy industry.

Again, Rutgers surely knows this political and professional background and should have been wary of perceptions of bias and conflicts of interest, as well as revolving door and partisan abuses.

I like and respect both Wolfe and Gabel, but the self serving nature and insiders game is quite distasteful and unethical.  ~~~ end update]

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Senate Asked To Review Murphy DEP Embrace of Christie Stream Buffer Rollback

December 17th, 2018 No comments

Senate Previously Vetoed Christie DEP Rule That Eliminated Stream Buffer Protections

  • “We as a legislature have consistently supported the sanctity of buffers for our C1 streams. These are the purest waters we have in the State of NJ.”  ~~~ Bob Smith, Senate Environmental Committee Chairman (6/16/16 – vote to pass SCR 66).
  • “Kudos to Bill Wolfe. We heard all kinds of testimony over these three meetings. But the one that stuck in my mind is [Bill’s testimony] that there’s no guarantee that they’ll be no deterioration in the State’s water quality standards if there’s development in the first 150 feet of buffer of C1 streams. That’s the critical missing legislative intent item for me.   ~~~ Bob Smith, Senate Environmental Committee Chairman (6/16/16 – vote to pass SCR 66).

The Murphy DEP, on  December 3, 2018, proposed a major new stormwater management rule that would, among other things, codify and expand the controversial Christie DEP rule that eliminated strict protections of 300 foot wide buffers along “exceptional value” streams, known as “Category One (C1) waters”.

That Christie rule was vetoed by both Houses of the Legislature in 2015, and again vetoed by the Assembly in 2016 but died in the Senate, killed by Senate President Sweeney (see also, the less focused NJ Spotlight story):

Sen. Bob Smith (D-Middlesex), who help negotiate the order, argued the changes made the new rule “equal’’ to the protections that were in place under the old regulation.

Environmentalists and others disagreed, dubbing the administrative order a “dirty deal” that does not settle the issue. They said yesterday they would continue to press the Senate to vote to revoke the rule, urge the EPA to block it, and take it to the courts, if necessary.

Early on in the process, the EPA expressed concerns the rule was inconsistent with federal water quality standards. Bill Wolfe, a former DEP staffer, already has written to Judith Enck, the EPA’s Region II administrator, asking the agency to review the administrative order for compliance with the federal Clean Water Act.

The Statement to SCR66 (6/16/16) lays out the procedural history of the Legislature’s efforts to veto this Christie DEP rule as “inconsistent with legislative intent“:

As required by the Constitution, the Legislature previously informed the Department of Environmental Protection, through Senate Concurrent Resolution No. 180 of 2015, of the Legislature’s findingthat this rule proposal is not consistent with legislative intent. In addition, the Senate Environment and Energy Committee held a public hearing on the resolution on March 7, 2016 as required by Article V, Section IV, paragraph 6 of the Constitution of the State of New Jersey.

Senate Environment Committee Chairman Bob Smith

Senate Environment Committee Chairman Bob Smith

Given the major flaws in the proposed new rules and the legislative veto of the same Christie DEP rules, I just wrote the below letter to Chairman Bob Smith:

Dear Chairman Smith & Senators Greenstein and Bateman:

I write to you in your joint Constitutional and statutory capacities for:

1) legislative oversight of executive branch rule making – specifically pursuant to Article V, Section IV, paragraph 6 of the Constitution which provides authority to veto rules “inconsistent with legislative intent” and the NJ Administrative Procedure Act, which requires, among other things, legislative notification of agency rule making; and

2) as legislative sponsors and supporters of climate change and stormwater management reforms.

As you may know, on December 3, 2018, DEP proposed a major overhaul of current stormwater management rules, with proposed revisions to, among other major rules, the DEP’s Highlands, CAFRA, and stream encroachment/Flood Hazard Act  rules. Here is a link to the proposal:

https://www.nj.gov/dep/rules/proposals/20181203a.pdf

This rule making provided at least 3 huge opportunities, including:

1) to repeal prior Christie DEP rollbacks, including the Christie DEP’s repeal and revision of the stormwater management rules regarding encroachments into protected C1 stream buffers;

2) to address the current and projected impacts of climate change, including sea level rise, storm surge, extreme weather events, more frequent and intense rainfall events, drought, heat waves and associated urban heat island effects, and the need to sequester carbon in soils and forest biomass; and

3) to close long known loopholes and strengthen standards and DEP’s review authority over major controversial projects, including pipeline crossings of NJ streams.

Unfortunately, the DEP proposal failed to do any of that, and instead, actually codified and expanded the Christie DEP’s elimination of the prior ban and strict limitations on encroachments in C1 stream buffers.

As you will recall, Chairman Smith & Senator Greenstein were prime sponsors of SCR66, a concurrent resolution to legislatively veto the Christie DEP’s proposed stormwater management rules, including most importantly, the repeal of the prohibition on disturbance of the buffers of “exceptional value” Category One streams (for text of SCR66, see:

https://www.njleg.state.nj.us/2016/Bills/SCR/66_I1.PDF

During Senate Committee hearings and release of SCR66, on June 16, 2016, Chairman Smith stated (verbatim quotes):

  • “We as a legislature have consistently supported the sanctity of buffers for our C1 streams. These are the purest waters we have in the State of NJ.” 
  • “Kudos to Bill Wolfe. We heard all kinds of testimony over these three meetings. But the one that stuck in my mind is [Bill’s testimony] that there’s no guarantee that they’ll be no deterioration in the State’s water quality standards if there’s development in the first 150 feet of buffer of C1 streams. That’s the critical missing legislative intent item for me.

Given the prior legislative opposition to and partial veto of the Christie DEP elimination of protections for C1 stream buffers and the legislature’s focus on climate change (Global Warming Response Act, S3207, et al) and stormwater management (S1073, et al), I strongly urge you to conduct the following legislative oversight of the current DEP proposal:

1) hold an oversight hearing. Call DEP Commissioner McCabe to testify and allow experts and the public the opportunity to testify and understand the implications of the 169 page complex proposal

2) request that OLS consider whether the proposal is “inconsistent with legislative intent”, consistent with SCR66 and recent climate and stormwater management legislative policy developments.

3) contact DEP Commissioner McCabe and request a 90 day extension of the public comment period.

I urge your immediate attention to this matter, as time is of the essence.

The DEP proposal was not put on a regulatory calendar, thus there was no ability for the public to anticipate its proposal in the 12/3/18 NJ Register.

While DEP proposed a 60 day public comment period, the holidays and New Year celebrations  consume a significant portion of the public’s review time.

I appreciate your timely and favorable reply.

Bill Wolfe

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After 12 Months In Office, Murphy DEP Proposes First Regulation, And It Is Awful

December 14th, 2018 No comments

Several Red Flags In Stormwater Rule Proposal Reflect Continuity With Christie DEP Policy

Proposal Would Codify Christie DEP Rollback of C1 Steam Buffer Protections

Proposal ignores climate change

On December 3, 2018, the Murphy DEP finally proposed its first regulation, after 12 months in power.

That is a record low number of regulatory proposals by any prior DEP.

The proposal is a major rule that makes significant policy and regulatory changes and will have significant negative impacts on development, water quality, flooding and DEP review of major projects, like proposed pipelines crossing NJ streams and urban “combined sewer overflow” systems.

The proposal was developed during the Christie DEP and reflects Christie DEP policy and priorities, not those stated by Gov. Murphy and DEP Commissioner McCabe, who have pledged to reverse the rollback course set by the Christie DEP.

The proposal has been a well kept secret thus far – it was not announced publicly by a DEP press release and there has been no news coverage of it thus far.

There are several major red flags that jump off the pages based on my preliminary review.

1. The proposal would codify the Christie DEP rollback of C1 steam buffer protections

Despite huge controversy, strong public opposition, and a legislative veto of the Christie C1 rollbacks, the Murphy proposal openly admits it not only would codify the Christie DEP C1 stream buffer rollbacks which allow “encroachments” into steam buffers that were prohibited by prior rules, it also fails to repeal and replace them with the original or more stringent regulatory protections:

The Department additionally proposes to update the existing reference to new encroachments in the special water resource protection area (SWRPA). The SWRPA was a 300-foot wide area adjacent to each side of water bodies designated as Category One waters pursuant to the Surface Water Quality Standards, N.J.A.C. 7:9B, and their associated perennial or intermittent streams that drained into or upstream of the Category One waters, which was intended to prevent adverse impacts resulting from stormwater runoff to Category One waters. As the Flood Hazard Area Control Act (FHACA) Rules also established a 300-foot riparian zone along Category One waters and a slightly different set of tributaries, in 2016, the Department deleted provisions related to the SWRPA from the Stormwater Management rules and incorporated new standards into the similar 300-foot riparian zone in the FHACA Rules in order to create a 300-foot buffer with uniform standards applicable to a uniform set of surface waters (see 47 N.J.R. 1041(a); 48 N.J.R. 1067(a)). To reflect this change, reference to the SWRPA is proposed to be replaced with reference to the 300-foot riparian zone contained in the FHACA Rules at N.J.A.C. 7:13-4.1(c)1. While protections previously provided to SWRPAs under the StormwaterManagement rules were incorporated into the FHACA Rules’ 300-foot riparian zone, local stormwater control ordinances may still include the SWRPA provisions or similar near-stream protected areas along Category One waters. Accordingly, in addition to reference to the FHACA Rules’ 300-foot riparian zone, it is also necessary to include new encroachments into 300-foot near-stream protected areas as an impact to be considered when determining if the grandfathering is still valid. Since the term SWRPA is no longer used in the Stormwater Management rules, it would be confusing to continue to use that term in N.J.A.C. 7:8-1.6(e). Accordingly, reference to 300-foot near-stream protected areas is proposed to be added at recodified N.J.A.C. 7:8-1.6(e)6 to reflect the similar protections that continue to be included in some municipal ordinances, regardless of what they may be referred to as in the particular ordinance. (p.48-49)

This is shameful – even the Legislature voted to veto the C1 buffer rollbacks as inconsistent with legislative intent.

There are several additional Christie DEP rollbacks that should have been repealed but were codified or ignored in the proposal. More to come about that as I conduct a more in depth review.

2 The proposal virtually ignores climate change

There are no new policies and regulatory standards to address current and projected impacts of climate change, including sea level rise, storm surge, increased rainfall frequency and intensity, drought, and heat waves and urban heat island effects – Or the need for carbon sequestration in soils and forests.

In fact, climate is mentioned exactly once, parenthetically, in the complex 169 page proposal, as an aside in a single sentence that makes a conclusion, with no supporting data. The DEP just threw it in there at the last minute:

Furthermore, the benefits of green infrastructure discussed in this notice of proposal help to improve community’s resiliency to the effects of climate change.

This is reckless and irresponsible.

3. The proposal is the result of the Christie DEP “by invitation only” Stakeholder process

The Christie DEP embarked on a “by invitation only” Stakeholder process that was not only dominated by business, industry, and development interests, but it also shut out critics and aggressive environmental advocates.

Gov. Christie issued Executive Order #2 to provide “regulatory relief” and make DEP rules, among other things, subject to “pre-proposal” review by business interests to avoid strict regulations and provide “advance notice” to allow special interests to intervene behind the scenes and block and weaken DEP rules. EO#2 explicitly seeks “to prevent unworkable, overly-proscriptive or ill-advised rules from being adopted.”

The Murphy DEP now embraces the policies of EO#2 and implements the work product of that process.

Stakeholder Engagement

The Department developed the proposed new rules, repeals, and amendments with extensive input from a broad range of stakeholders. Stakeholders included representatives from environmental groups, developers, academia, municipalities, counties, regional agencies, and consultants, as well as representatives from the New Jersey Department of Agriculture, the New Jersey Department of Transportation, and the New Jersey Department of Community Affairs.

The Department held stakeholder meetings in 2014, to discuss changes proposed in this rulemaking, including the proposed change to replace nonstructural stormwater management strategies with specific strategies from the New Jersey Stormwater Best Management Practice (BMP) Manual. The Department held three stakeholder meetings in November 2016, to discuss many of the proposed changes, including green infrastructure as a replacement for nonstructural strategies and changes that impact communities with combined sewer systems. Changes pertaining to motor vehicle surface and averaging compliance across multiple drainage areas were stakeholdered in 2011 and 2012.

The Department held a stakeholder meeting in June 2017, to understand stakeholders’perspectives on whether there are site specific constraints that would prevent the use of green infrastructure BMPs. Stakeholders generally acknowledged that there may be cases of site constraints that cannot be overcome, but that the only condition for allowing utilization of non-green infrastructure BMPs should be for technical infeasibility. Stakeholders suggested requiring applicants to perform an alternatives analysis demonstrating that each green infrastructure BMP is technically infeasible for each drainage area, if the applicant seeks to use non-green infrastructure BMPs. Most stakeholders further expressed that cost should neither be considered in the alternatives analysis, nor factored into the decision whether to permit the use of non-green infrastructure BMPs. Stakeholders suggested a grandfathering provision allowing stormwater management designs already submitted to review agencies before the effective date of the rule to be reviewed under the rules in effect when the designs were submitted. Input received during the stakeholder process has been considered by the Department in formulating the amendments, new rules, and repeals proposed below.

The proposal makes some vague allusion to future stakeholder discussions – but that is ass backwards and puts the rollback cart before the more stringent new rules horse. It is not only bad public policy, but political malpractice to adopt a prior administration’s rollbacks while promising future improvements.

During this past stakeholder process, stakeholders expressed an interest in discussing issues beyond those addressed in this rulemaking. The Department is committed to continuing to hear andtake into consideration stakeholders’ perspectives on stormwater management issues. Therefore, the Department will hold additional stakeholder discussions to evaluate further potential future changes to N.J.A.C. 7:8 that are not part of this rulemaking and to the New Jersey Stormwater BMP Manual. Additionally, the Department plans to seek input on new efforts related to training and guidance. (p.5-7)

4. The proposal repeals prior regulatory mandates and replaces them by a slogan

“Green infrastructure” is more of a slogan than a policy and science based enforceable regulation, much like “smart growth”, “sustainable development”, “resilience”, and “environmental justice”.

The Department held three stakeholder meetings in November 2016, to discuss many of the proposed changes, including green infrastructure as a replacement for nonstructural strategies and changes that impact communities with combined sewer systems.

The Department is proposing amendments to the Stormwater Management rules, N.J.A.C. 7:8, to replace the current requirement that major developments incorporate nonstructural stormwater management strategies to the “maximum extent practicable” to meet groundwater recharge standards, stormwater runoff quantity standards, and stormwater runoff quality standards, with a requirement that green infrastructure be utilized to meet these same standards.

The current “maximum extent practicable” mandate was poorly implemented by a point system over-ruled by the Courts, but it should have been strengthened, not abandoned and repealed. Here’s DEP’s “excuse” for that:

As the Department began to implement the nonstructural strategies in the Stormwater Management rules, the Department observed that accurate assessment of whether nonstructural strategies proposed to be incorporated into a particular project satisfied therules’ requirement that such strategies be utilized to the “maximum extent practicable” was difficult, with the ultimate determination involving a measure of subjectivity.

Green infrastructure is an unenforceable slogan – as a policy, it may be OK, but not when it is used to replace enforceable technical requirements.

Here’s is DEP’s justification claim:

The use of green infrastructure BMPs, such as pervious paving, infiltration basins, and bioretention systems, will more effectively achieve the Department’s goals under the existing rules of reducing stormwater runoff volume, reducing erosion, encouraging infiltration and groundwater recharge, and of maintaining, or reproducing as closely as possible, the natural hydrologic cycle and minimizing the discharge of stormwater-related pollutants, such as TSS and nutrients.

There is no NJ specific data or science in the proposal to support that claim or that green infrastructure will be as protective as the current requirements it replaces.

More to follow.

5. The proposal reflects the Christie – Martin DEP regulatory “alignment” policy

A major initiative of the Christie Bob Martin DEP was to “align” various regulations to make it cheaper, easier and more certain for business to get DEP permits.

Alignment may sound good, but it lacks any scientific basis and conflicts with laws.

For example, the Legislature has mandated that DEP regulations in the environmentally sensitive Highlands and the Pinelands must be stricter  than those in the rest of the state. Alignment makes no sense and violates the law.

Here’s The Murphy McCabe DEP justification:

To align the Stormwater Management rules with the new WQMP rules, the Department proposes to update various references to the WQMP rules…. (p.85)

The Department is additionally proposing minor amendments to provisions in the Coastal Zone Management Rules, the Freshwater Wetlands Protection Act Rules, the Flood Hazard Area Control Act Rules, the New Jersey Pollutant Discharge Elimination System rules, and the Highlands Water Protection and Planning Act Rules in order to update cross-references and incorporate other changes consistent with the proposed amendments to the Stormwater Management rules.

Despite the fact that back in 2002, the McGreevey – Campbell DEP sought a failed “Big Map” regulatory strategy to distinguish regulatory requirements based on location and environmental sensitivity, the concept remains sound and is actually mandated by law.

Location based regulation is also the foundation of the policy and  planning area framework of the totally ignored NJ State Plan.

Instead of advancing that concept and complying with law, Murphy – McCabe parrot Christie policy.

6. The proposal has many loopholes and a broad “grandfathering provision”

The proposal would exempt many projects from so called new “green infrastructure” requirements:

The Department is proposing several amendments to N.J.A.C. 7:8-1.6 to provide a modified form of “grandfathering” that would be applicable to the changes being proposed at this time. In recognition that the proposed amendments, including the proposed amendment to require utilization of green infrastructure with very limited exception, could require significant redesign of projects that had similarly progressed in reliance on the existing rule requirements, the Department proposes to revise the dates that had been incorporated to provide limited“grandfathering” at N.J.A.C. 7:8-1.6(b) to reflect that major development qualifying for the exception will be subject to the requirements of the rules in effect one day before the operative date of this rulemaking (with the actual date one day prior to the date one year after publication of the notice of adoption in the New Jersey Register to be incorporated into the rule).

7. The proposal allows “mitigation”, “averaging”, “variances” and watershed-wide (HUC-14) compliance demonstration to escape enforceable requirements

There are many provisions in the proposal that let developers off the hook from various technical requirements at a site specific level, including the highly touted “green infrastructure” BMP’s.

A full discussion is beyond the scope of this post and will be addressed in future posts

8. The proposal repeals current water quality, stormwater volume, and groundwater recharge requirements

In addition, the proposal would allow “mitigation” to provide an exemption for nutrient and stormwater runoff water quality standards.

A full discussion is beyond the scope of this post and will be addressed in future posts

9. The proposal lays the foundation for approval of controversial pipelines and fossil infrastructure 

The public and anti-pipeline activists have finally begun to understand the regulatory framework for stopping pipelines and new gas power plants, including DEP water quality certificates. The issues were discussed in detail during the debate on prior Christie DEP rollbacks of DEP rules.

The proposal not only failed to address these crucial issues, it would repeal standards (e.g. Total Suspended Solids, TSS, nutrients) and codify major loopholes in current rules the make it difficult if not impossible for DEP to deny permits for pipelines.

A full discussion is beyond the scope of this post and will be addressed in future posts.

10. The proposal fails to close many known loopholes and correct flaws in existing rules

A full discussion is beyond the scope of this post and will be addressed in future posts.

This is just an overview. More to follow.

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Murphy DEP Repeats Lies About Failure To Adopt Protective Drinking Water Standards

December 10th, 2018 No comments

NJ Law Does NOT Authorize DEP To Consider Costs In Setting Standards

Risks of alternative chemicals highlight the failure of federal law – Ask Senator Booker

[Update below]

We’ve written many times about the multiple failures of the NJ DEP to adopt protective drinking water standards, and in particular, their failure to implement the best available science set forth in recommendations by the NJ Drinking Water Quality Institute (DWQI).

Most recently, we reiterated these concerns as context for a panel discussion sponsored by NJ Spotlight, see:

Today, NJ Spotlight reported on that panel discussion we were concerned about.

In an otherwise good article, again we see significant omissions in the coverage, see:

I)   DEP IS LYING

First, head of DEP Science Gary Buchanan, in response to criticism by Tracy Carlucchio of DEP “inexplicable foot-dragging” and failures to implement recommended drinking water standards of the DWQI, said this:

Gary Buchanan, the DEP’s director of science and research, held out little prospect that the MCL process can move any faster.

“State government does not move quickly,” he said. “It takes time to get things right. We want to use the right science, the best available science. We want to consider all the options. We want to talk to all of our stakeholders. We also have to look at costs.”

Buchanan is dead wrong – the NJ Safe Drinking Water Act does NOT authorize DEP to consider “costs” in setting drinking water standards. In fact, it prohibits consideration of costs by specifying explicit criteria upon which DEP shall set standards.

Here is the relevant text of the statute:

58:12A-13. Maximum contaminant levels of certain organic compounds; list of contaminants; rules and regulations

[a.]

b. The commissioner, after considering the recommendations of the Drinking Water Quality Institute, shall, within two years of the effective date of this amendatory and supplementary act and pursuant to the “AdministrativeProcedure Act,” P.L.1968,c.410(C.52:14B-1etseq.),adopt rules and regulations
which develop, within the limits of medical, scientific, and technological feasibility, a list of those pesticides and related compounds, metals, and base/neutral extractable organic compounds and acid extractable organic compounds which he believes may be found in drinking water and the presence of which above maximum contaminant levels in drinking water, upon ingestion or assimilation, may, on the basis of the best information available to the commissioner, cause death, disease, behavioral abnormalities, cancer, genetic mutations, physiological malfunction (including malfunctions in reproduction), or physical deformity; and establish, within the limits of medical scientific and technological feasibility, maximum contaminant levels for each chemical or chemical compound on the list which, with respect to carcinogens, permit cancer in no more than one in one million persons ingesting that chemical for a lifetime, and, with respect to other chemicals or chemical compounds on the list and those carcinogens resulting from compounds with public health benefits, eliminate within the limits of practicability and feasibility all adverse physiological effects which may result from ingestion; provided, however, that in no case shall the standard adopted by the commissioner for any chemical or chemical compound on the list be less stringent than that established for the same chemical or chemical compound by the United States Environmental Protection Agency, pursuant to the “Safe Drinking Water Act,” Pub.L. 93-523 (42 U.S.C. s. 300f et seq.), or any other federal agency.

Buchanan and DEP Commissioner McCabe must be called out on these egregious mis-statements of the NJ Safe Drinking Water Act.

II)  GO ASK BOOKER

Second, while exposing the failure to screen the toxicity of substitute chemicals, NJ Spotlight failed to note the key reason for that failure:

New Jersey’s nation-leading efforts to protect the public from a class of toxic chemicals in drinking water are being threatened by the emergence of substitutes that may be just as hazardous to human health, experts argue.

That failure is due to a federal law known as the Toxic Substances Control Act (TSCA).

The Toxic Substances Control Act (TSCA) is a United States law, passed by the United States Congress in 1976 and administered by the United States Environmental Protection Agency, that regulates the introduction of new or already existing chemicals.

TSCA was just overhauled in 2016 by legislation negotiated by NJ Senator Cory Booker – Here’s Booker’s self congratulatory press release:

“Congressional approval of this bipartisan chemical safety law is a major victory for our state and for the legacy of Sen. Frank Lautenberg who championed this fight.  I am proud of the long-overdue improvements I fought to include in this bill, including provisions that strengthen EPA’s ability to regulate toxic chemicals, provide EPA with dedicated funding, give more scrutiny to new chemicals before they come on the market, allow states to continue to co-enforce with EPA, and minimize animal testing when scientifically reliable alternatives exist. Despite long odds and difficult challenges, common sense and finding common ground won the day. I want to thank all of my colleagues on both sides of the aisle that came together to make this bill possible. I look forward to celebrating when President Obama signs this important chemical safety reform legislation into law, helping to keep American families and children safe from toxic chemicals.”

In May, Sen. Booker spoke on the Senate floor urging swift passage of the bipartisan, bicameral agreement on the Frank R. Lautenberg Chemical Safety for the 21st Century Act, which makes badly needed reforms to the Toxic Substances Control Act of 1976.  His remarks can be viewed here.

To read the act, see:  

Someone needs to go ask Booker about all that.

We predicted this Booker sell out:

Bill Wolfe, director of the New Jersey office of Public Employees for Environmental Responsibility, said not having Lautenberg in the Senate is a “huge loss.” He would “step on toes to get things done,” whereas Wolfe said Booker is “the antitheses of that.” He called the former mayor a “calibrated corporate Democrat who worries about alienating Wall Street and corporate America.”

And called him out at the time of his sellout to – taking issue with Jeff Tittel’s praise of the TSCA deal. (looking for link, may have ben a tweet or private email).

Update – 12/12/18 – clarification. Tittel just sent me an email of a NJ.Com story where he is quoted as opposing the Booker deal on the basis of state pre-emption. I also opposed the deal on those grounds but the lack of toxicity screening and restrictions on new chemicals is not the result of preemption. Other major flaws. More to follow on this.

[Update – 1/17/19 – NJ Spotlight ran a critical update story today, see: WHERE ARE NJ’S NEW CHEMICAL RULES? ENVIROS ACCUSE DEP OF MORE FOOT-DRAGGING ON PFAS

But curiously, Jon Hurdle altered the money quote of DEP scientist Gary Buchanan (see original above) by omitting the statement about consideration of costs, i.e.  “We also have to look at costs.”

Instead, Hurdle wrote this, eliminating and qualifying Buchanan’s cost consideration quote entirely:

State government does not move quickly,” Buchanan said in answer to questions on why regulating the two chemicals was taking so long. “It takes time to get things right. We want to use the right science, the best available science, we want to consider all the options, we need to talk to our stakeholders.”

He said officials are also required to examine the costs of regulation for water suppliers who must test for the chemicals and treat them if necessary.

Let me repeat: the NJ Safe Drinking Water Act does not authorize DEP to consider costs in setting drinking water standards, known as “MCL’s”.

In fact, the NJ SDWA specifies exactly the factors DEP must consider and thereby not only does not authorize cost considerations in setting MCL’s, but effectively prohibits consideration of costs.

When will Mr. Hurdle and NJ Spotlight cover that critical issue?

How much is you life worth? See:

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