Ford Ringwood Superfund Debate on Chemical 1,4, Dioxane Illustrates Flaws In Drinking Water Standards

August 20th, 2016 No comments

Is the Pandora’s Box of “unregulated contaminants” finally opening?

This is what they don't want you to see behind the fence - Ringwood Mines Superfund Site (Bill Wolfe, 1/3/12)

This is what they don’t want you to see behind the fence – Ringwood Mines Superfund Site (Bill Wolfe, 1/3/12)

Scott Fallon of the Bergen Record has another good story today on the Ford Ringwood site– see:

Fallon is really getting into the weeds and listening to his primary source Michael Edelstein, a Ramapo College professor, and for that we say Bravo! – those interested in going deeper into the weeds, see page 5 of this EPA Technical Fact sheet.

EPA is fully aware of the lack of reliability regarding sampling and analytical methods for 1,4, Dioxane and simply has never publicly discussed that issue or taken steps to mandate that Ford use the most sensitive analytical methods.

That’s strike two for EPA, after failing to disclose the problem for almost a year after detecting the chemical in groundwater.

But Fallon buried the lead on the underlying source of the problem and does not explain the significant implications of the problem. That’s really strike 3 for EPA (again, a critical problem EPA rarely discusses publicly).

The underlying problem is that 1,4, dioxane – like over 500 chemicals found in NJ drinking wateris not regulated by EPA and there is no federal drinking water standard (“maximum contaminant level” – MCL) for 1,4, dioxane or any of those other 500+ chemicals millions of people drink every day!

[NJ DEP has a State enforceable “interim specific groundwater quality standard” (0.4 ppb) and “practical quantitation” limit” (PQL) (0.1 ppb) for 1,4, dioxane, but under the federal Superfund program, EPA is not required to comply with the state standards, but merely consider it as a “applicable and relevant” requirement. EPA made another mistake by not adopting NJ DEP’s ISGWQS and more sensitive PQL that would have required that Ford use more sensitive analytical methods – although the recent sampling by the Boro produced results even more sensitive than DEP’s PQL.

The Christie DEP should NEVER have approved and signed off on the EPA remedy without insisting that EPA enforce NJ DEP’s strict standard!  The State of NJ concurred with the EPA approved Ford scheme (see Appendix V of the EPA ROD for the DEP State Concurrence letter).]

If 1,4, dioxane were regulated by federal EPA and there was an MCL established, there would be an EPA approved analytical method Ford would be required to use, Ford would be required to comply with the MCL in designing the site specific cleanup, there would be treatment required NATIONALLY to remove the chemical from drinking water, and there would be public disclosure of test results (if only via the Consumer Confidence and Source Water Protection program).

Here’s how the Bergen Record story explains that to readers – 9 paragraphs into a complex story:

A clear liquid used as a solvent and found in many products, including paint strippers, dyes and greases, 1,4-dioxane is considered an “emerging contaminant” by the EPA. The agency has yet to develop uniform health standards for 1,4-dioxane as it has for many hazardous substances, including others present at the Ringwood site. Still, several government agencies have said 1,4-dioxane is “reasonably anticipated to be a human carcinogen.”

Now that the Record has finally opened the can of worms on “unregulated contaminants” in drinking water, let’s hope they do followup stories that advise readers of the implications of that loophole.

Here’s a place to start – and here is a solution:

Trenton — New Jersey should filter its drinking water to remove hundreds of chemicals, most of which are unregulated, from its drinking water supply, according to a rulemaking petition filed today by Public Employees for Environmental Responsibility (PEER). The plan to screen many chemicals out of tap water was actually developed by the state Department of Environmental Protection (DEP) but has been in limbo for the last six years.

State testing has detected “approximately 600” chemical compounds “in 199 samples collected” including five brands of bottled water, according to a recent DEP white paper. The vast majority of these chemicals, including pharmaceuticals, hormones, and cleaning products, are not regulated by either the federal or state government. As a result, there is no regulatory effort to reduce or eliminate them from drinking water.

The April 2010 DEP white paper, entitled “Investigations Related to a ‘Treatment-Based’ Regulatory Approach to Address Unregulated Contaminants in Drinking Water,” advocates used granular activated carbon filtration and other techniques to remove most chemicals in drinking water, noting that carbon filtration alone removed more than half of identified chemicals.

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Beach Access Debate Is Bullshit And A Diversion From Climate Change and Real Ocean and Coastal Issues

August 18th, 2016 No comments

Absurdity

NY/NJ Baykeeper Praises The Corzine DEP CAFRA Public Access Rules – The Same Rules The Group’s Lawsuit Convinced The Courts That The Christie DEP Lacked Legislative Authority To Adopt

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I decided that this year it wasn’t worth the carbon emissions to drive down to Toms River for the annual Joint Legislative Environmental Committees summer hearing on the shore.

The origin of the event is linked to Superstorm Sandy, but the roots are in Gov. Corzine’s Shore Summit: “Confronting Climate Change in New Jersey“, which was held on September 25, 2006.the Gov. Corzine’ 2009 Mid Atlantic Governor’s Agreement on Ocean Conservation.

After a promising start and some solid substantive legislative oversight of DEP – including controversial Sandy oversight – over the years the joint Legislative event has devolved into a joke – a political dog and pony show and excuse for a party (key legislators have shore and Barnegat Bay homes, a conflict they never disclose as they make coastal policy).

Nothing new in that political ploy:

The context for this year’s [2012] hearings is framed by another year of stinging jellyfish and growing threats of ecological collapse and harmful algae blooms in Barnegat Bay –

But even far more serious problems lay buried beneath the radar. …

For example, the recent Monmouth County water pipeline break was a perfect illustration of NJ’s multiple vulnerabilities to global warming – extreme weather, storm surge, sea level rise, coastal hazards, infrastructure, and climate change adaptation.

The joint Legislative Committees will not focus on any of that – instead, their hearing agenda is very narrowly crafted.

This year, I emailed in my testimony, which is certain to be ignored (just as my testimony at the hearing would have been, if history is a guide, by the Committee and the media).

But I do need to respond to how the media is reporting the hearing and narrowing focusing on – and missing – the public access debate and public trust doctrine issues.

As usual, in virtually all complex policy issues, they are getting the story badly wrong and completely missing the point that the beach access issue is a diversion from dealing with real serious ocean and coastal issues and huge failures by both the Democratic controlled legislature and the “Rebuild Madness” Christie Administration.

For example, see this recent article by one of NJ’s best investigative reporters, Jeff Pillets of the Bergen Record, which was one of the very few news stories to discuss the State’s long term economic cost obligations of the federal beach replenishment program, and the fact that those costs and the beaches are not sustainable and therefore support a policy of “strategic retreat”, see:

Legal fees mount as N.J. dune battle drags on

“The costs, the whole idea of perpetually replenishing a beach, is simply unsustainable,” said Norbert Psuty, a retired professor from Rutgers University who has spent his life studying shifting sands.

Psuty said excessive development along the shorefront and bays prevents natural forces that build and reshape dunes and their tendency to migrate toward the land.

“The beach, the dunes, are always moving and reshaping themselves,” he said. “In the short term you can do patch work, you can move people out of harm’s way. But in the long term you’re not going to be able to survive.”

Let me explain why the whole event today – and the news coverage – is total bullshit:

  • Public Access problem the result of Pyrrhic legal victory by environmental groups

In this Politico story, it is remarkable that Deb Mans, head of NY/NJ Baykeeper, praised the Corzine DEP public access rules. (aside from the undisclosed fact she worked for the Corzine Administration as the Governor’s environmental policy advisor – a gross bias that needs to be disclosed):

“One of the things that the 2012 rule did was set a really high bar before you triggered public access,” Mans said. “Before if you had an expansion of the footprint or you were rebuilding your bulkhead you would trigger a public access … If you couldn’t provide for it on-site you would have to do it off-site.”

Mans was right to oppose the Christie DEP public access rule. It was very bad and it repealed a far better Corzine DEP rule.

But Mans successfully sued to block the Christie DEP rule, so first of all, we need to understand the legal attack and unintended results of that lawsuit.

That lawsuit made a radical “ultra vires” legal argument  that DEP LACKED LEGISLATIVE AUTHORITY TO REGULATE TO ENFORCE THE PUBLIC TRUST DOCTRINE.

That legal argument also claimed that DEP lack legislative authority to provide or require financial compensation for off site public access if a facility could not provide on site access.

How can Mans now praise those rules if DEP lacked the power to enact them?

How can she praise Corzine DEP rules for requiring provision or finance of off site access if she eliminated DEP’s legal ability to require provision of compensation for off site access? HELLO!

NJ/NJ Baykeeper’s lawsuit filed by Ms. Mans created the current problem – she made radical anti-DEP legal arguments that even the strongest opponents of DEP’s public access rules – i.e. the shore towns, Marinas, Chamber of Commerce, NJBIA, and NJ Builders Assc. – would never even try to make!

This is a classic example of A Pyrrhic victory

If you want to understand the arguments with links to court decision et al, see:

On top of all that, following the Court’s decision striking down the DEP rules for lack of legislative authority, Senator Smith had huge leverage and he absolutely blew it by passing emergency legislation that merely effectively codified the bad Christie DEP rules in statute.

For that story, see:

Finally, all the real issues that are all being ignored today – especially climate change – are laid out here:

this is the NJ shore at sunrise

this is the NJ shore at sunrise

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Advice for PennEast and All NJ Pipeline Opponents On Upcoming DEP Permit Hearings

August 18th, 2016 No comments

Transco and NJ Natural Gas SRL Pipeline Will Set Legal Precedent On Pipeline Reviews

The NJ Department of Environmental Protection (DEP) is holding two very important public hearings on wetlands and CAFRA permits and Clean Water Act Section 401 Water Quality Certificates (WQC) for the Transco compressor station on Monday August 22 and the NJ Natural Gas Southern Reliability Link (SLR) pipeline on Wednesday September 7.

Without going into the details here, let me just say that various pipeline opponents will be submitting various comments that make certain scientific and legal attacks on those pipelines.

Many of these arguments will be made to NJ DEP for the first time, including arguments regarding Clean Water Act Section 401 WQC, NJ DEP wetlands permits and compliance with DEP surface water quality standards, and CAFRA permit and consistency with NJ’s federally delegated CZMA – there might even be novel Clean Air Act issues raised.

The applicants Transco and NJ Natural Gas Co. will have to rebut those arguments with scientific and legal arguments of their own.

The DEP will be required to respond to both sets of comments when they make a final decision on the permit (e.g. there are 3 options: approve, deny, or approve with modifications and conditions).

In doing so, the DEP will establish the State of New Jersey’s scientific and legal rationale regarding very critical scientific, regulatory policy and legal issues that will be challenged before the Office of Administrative Law and the Courts (perhaps State and Federal).

Given the novel and precedential nature of these DEP decisions, it is imperative that pipeline opponents make their strongest arguments possible.

If poor quality or legally and/or factually unsubstantiated arguments are made, those weak arguments will be easily dismissed by the gas industry lawyers and DEP permit writers. The DEP will adopt a bullet proof or difficult to challenge permit and WQC rationale.

If that happens, ALL FUTURE PIPELINE CHALLENGES WILL BE IMPACTED NEGATIVELY – as well as the SRL and compressor station.

There’s a lot on the line – you may have held your powder dry to date, but NOW you have skin in the game!

So, let’s hope that those groups who have refrained from making the various Clean Water Act Section 401 WQC and wetlands arguments publicly thus far show up and bring their A game.

I am referring specifically to PennEast opponents and Rethink Energy NJ, who have focused on FERC thus far, as well as groups like Delaware Riverkeeper who has raised and litigated the 401 WQC issue in other states.

Be there and bring your lawyers and consultant experts. Put your analysis in the record. If you fail to do so, it will come back to bite you.

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Hillary Clinton’s White House Transition Chief Cut Dirty Deal on Delaware Watergap Powerline

August 17th, 2016 No comments

All Fracked Up

Salazar Is Pro TPP, Fracking & Cut Dirty Delaware Water Gap Deal

Seems like all the dirty roads lead to New Jersey.

Donald Trump selected Gov. Christie as the head of his Presidential Transition Team.

Now, Hillary Clinton has named former Obama Secretary of Interior Ken Salazar as her head of transition.

The move is a further betrayal, following the selection of “climate disaster” Tim Kaine as Vice President.

The Intercept just posted a critical article, see:

As a senator, Salazar was widely considered a reliable friend to the oil, gas, ranching and mining industries. As interior secretary, he opened the Arctic Ocean for oil drilling, and oversaw the botched response to the BP oil spill in the Gulf of Mexico. Since returning to the private sector, he has been an ardent supporter of the TPP, while pushing back against curbs on fracking.

In addition to the TPP and fracking issues, we feel compelled to remind readers and NJ Clinton supporters of Salazar’s corrupt history in NJ.

Salazar cut the $60 million dirty deal that allowed the Suquehanna Roseland power line to cross the Delaware River through the Watergap National Recreation Area – we blew the whistle on that, see:

POWER PLAY AT DELAWARE WATER GAP AND APPALACHIAN TRAIL

“Fast Track” Review Masks Pre-Selection of Most Damaging Transmission Route


Washington, DC — Top administration officials have pre-approved a humongous power transmission corridor across some of the most scenic portions of Delaware Water Gap National Recreation Area and the Appalachian National Scenic Trail, according to Public Employees for Environmental Responsibility (PEER) which strongly condemned the move.  Yesterday, the Obama administration announced a plan to “fast track” the Roseland Susquehanna Overland Transmission Project, along with six others – a move that PEER charges is a move to bypass proper environmental review designed to protect one of the most scenic areas of the entire national park system.

Announced as a “pilot project” and a boon to jobs, Interior Secretary Ken Salazar and other top officials vowed to slash “red tape” to move the transmission corridors rapidly forward on a fast track basis.

“We do not object to fast-tracking projects as long as political appointees follow the laws protecting parks and the environment–but that hasn’t happened here,” stated PEER executive Director Jeff Ruch.  “Using jobs as a pretext is misplaced.  More jobs can be created by protecting parks than by trashing them.”

PEER contends that Secretary Salazar, National Park Service Director Jon Jarvis and other Interior officials have met repeatedly with project proponents, PPL Electric Utilities of Allentown, Pennsylvania (PPL) and Public Service Electric and Gas Company of Newark, New Jersey (PSE&G), and have already approved a route for a new power line that will cut across the Delaware Water Gap National Recreation Area and the Appalachian National Scenic Trail.  The power line will be strung on 200 foot-tall towers that will permanently impair the scenic values of one of the most beautiful areas in the crowded Northeastern Corridor of the United States.

For at least three years, the NPS has been developing an environmental impact statement (EIS) to consider the PPL/PSE&G proposal, following the National Environmental Policy Act (NEPA).  The draft EIS is supposed to be announced to the public for comment before the end of 2011. The transmission line will bring power from PPL generating facilities at Berwick, Pennsylvania across the Delaware River and the Delaware Water Gap National Recreation Area (NRA) to northern New Jersey.

As part of the deal, the draft EIS will NOT consider at least two alternatives that would lessen impacts to the park’s scenery (#6 and #7) but will include at least one alternative (#2B) demanded by the companies that is untenable from a safety perspective.   The Secretary and the Director have unofficially committed to the companies that the NPS will select Alternative 2, the alternative preferred by the companies but which is the most damaging to the resources and scenery of the parks.  In return, the companies have reportedly agreed to pay $60 million for land acquisition and administration inside and near the NRA.  

“This is not ‘fast track,’ it is a short circuit in which political appointees are putting their thumbs on the scale to skew the review process,” Ruch added.   “It is one thing to select an alternative after the conclusion of the NEPA process, but is something else to decide on the alternative before public comment has even begun.”

[for full press release, with links to the supporting documents, see this]
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Anti-Pipeline Activists Target Christie DEP’s Clean Water Act Powers

August 16th, 2016 No comments

Protest At DEP HQ Demands DEP Deny Water Quality Certificate

State Clean Water Act Power To Kill Pipelines Not Federally Preempted

Focus on Governor’s DEP Powers Has Political and Legal Significance

DEP HQ, Trenton - Ironically located at "401" State Street! (8/15/16)

DEP HQ, Trenton – Ironically located at “401” State Street! (8/15/16)

[Update: David O’Reilly of the Philly Inquirer has a good story I just saw that ran the same day as the protest (8/16/16):

[Update – David Levinsky’s Burlington County Times story gets it exactly right and with a great photo!:

The Federal Energy Regulatory Commission and New Jersey Board of Public Utilities have already approved construction of the compressor station and pipeline, but those approvals are contingent upon the projects obtaining the related environmental permits.

Bill Wolfe, an environmental activist from Bordentown Township, said New York and Connecticut have turned back FERC-approved pipeline projects due to their expected impacts on wetlands and streams.

“This is the first public protest challenging the governor to use his power under the Clean Water Act to reject these projects,” Wolfe said.

Source: William Thomas Cain for the Burlington County Times. John Kocubinski ® North Hanover Towsnhip Committeeman and

Source: William Thomas Cain for the Burlington County Times. John Kocubinski ® North Hanover Towsnhip Committeeman and Fred Fall of People Over Pipelimes (L)

Let’ hope that all the anti-pipeline, fracking, bomb train, and climate activists working so hard across the state can get get together and focus a coordinated campaign on the DEP’s Clean Water Act power. It is a far more winnable fight than FERC-ing off! ~~~ end update]

For the first time in NJ, anti-pipeline activists targeted a little known State power and today protested at the DEP’s Trenton Headquarters, demanding that DEP do its job and deny a “water quality certificate” for the compressor station and NJ Natural Gas Co.’s proposed Southern Reliability Link (SRL) pipeline through the Pinelands.

Very few people understand that the Governor has power under the Clean Water Act to deny water quality approvals and kill pipeline projects. Instead, almost all activists’ efforts and media coverage are focused on the Federal Energy Regulatory Commission (FERC), a far away beltway bureaucracy captured by the energy industry lobbyists and lawyers.

As a result, Governor Christie and his DEP have gotten a pass – DEP Commissioner Martin even mislead the legislature on the DEP’s powers by suggesting that they were preempted by FERC. Matin testified to the Assembly Budget Committee on May 24, 2016:

They (FERC) are the overall controlling entity on it at the end of the day. They could over-ride anything we could even do from the State of New Jersey. […]

We can not fight that .. If we did reject a pipeline it would end up in court very quickly.

But today’s event changes all that, and – just like the Governor was pressured to use his power to kill off shore Liquified Natural Gas (LNG) projects – both the politics and the legal issues are reframed and can no longer be dodged by the Gov. or DEP Commissioner.

The protest opens up an important new political and legal front in the pipeline wars, in advance of what is sure to e a controversial public hearing on draft wetlands and water permits next Monday, August 22.

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The Burlington County Times story notes that there will be two public hearings – here are details:

The first hearing will be held Monday at 6 p.m. at the Ramada Inn on Route 206 in Bordentown Township and will concern a wetlands permit sought by Williams Transco, the Oklahoma utility company that is planning to build the compressor station off Route 528 near the New Jersey Turnpike.

The second hearing is Sept. 7 at 6 p.m. at the Ramada and relates to a water permit needed by New Jersey Natural Gas for its proposed Southern Reliability Link pipeline through Chesterfield, North Hanover, Joint Base McGuire-Dix-Lakehurst, and several towns in Monmouth and Ocean counties.

Responding to activist pressure, New York State Governor Cuomo recently used his Clean Water Act Section 401 “Water Quality Certificate” power to kill the controversial proposed Constitution pipeline.

Cuomo’s denial was preceded by Connecticut, who used the State’s Clean Water Act power to kill the proposed Islander East pipeline across the Long Island Sound.

The Connecticut denial – made by then Connecticut DEP Commissioner and current EPA Administrator Gina McCarthy – was upheld by federal District Court.  After the pipeline company appealed that District Court decision, the State’s denial was upheld by the US Circuit Court of Appeals.

So there is solid legal precedent to uphold NY’s  more recent denial that NJ DEP can rely on as well.

Climate and anti-pipeline activists have been slow to realize the power -legally and politically – of State Clean Water Act powers to halt controversial pipeline projects.

Although the crowd was small today, activists are well advised to watch this challenge closely and join in focusing their efforts on the DEP WQC powers.

(some of the technical details can be found here and here).

Even if the activists lose this phase of the battle and the Christie DEP approves the WQC and wetlands permits, they are sure to be challenged administratively and then judicially, which will inject significant delays.

Perhaps even more importantly, there is a race for Governor now underway, and it’s only a matter of time before one of the Gubernatorial candidates realizes that a commitment to use his power as Governor to block controversial pipeline battles across the state is a winning political strategy.

NJ has a very long history of examples of exactly this dynamic – where environmental controversies are picked up by a political campaign and resolved via policy change in the next administration.

The protest was sponsor by local activist group People Over Pipelines and with the support of Sierra Club, NJ Chapter.

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