WolfeNotes.com

The Source Of Toxic Lead Slag On Keyport Beaches Is No Mystery

(Source: Bill Wolfe, Raritan Bay Slag Superfund site)

Toxic lead slag has been found again on the beach in Keyport.

Apparently, how the lead slag got there is a “mystery” that the Murphy DEP is investigating.

This statement just blew my mind (NJ Spotlight news, emphasis mine):

The Raritan Bay Slag Superfund site sits just four miles away from the shore — and has tested positive for lead in the past — but Remaud said he believes the objects in Keyport were dumped there and the former National Lead company, which operated the Raritan Bay Slag site, is not responsible.

National Lead is not responsible? Say what?

Unless he knows exactly who dumped it and is a legal expert on liability (which he’s NOT), why would an environmentalist (Remaud) go out of his way to absolve National Lead as the source?

May I speculate that the source is in fact the National Lead Superfund site?

And it seems like very similar major mistakes are being repeated by the DEP, e.g.

• there are no signs posted to warn the public about the risks of lead exposure;

• there are no fences limiting access to the contamination; and

• there is no monitoring and enforcement of environmental laws against the source of the problem.

For details of how that site has been badly mismanaged, check out this April 8, 2010 post (especially the photos):

• Life’s a Beach, and then …

The Alleged “Special Conditions” DEP Imposed Are A Bluff And Not Enforceable

DEP Commissioner LaTourette Continues To Gaslight The People Of Newark

This is the most political and dishonest action by DEP I’ve ever witnessed in almost 40 years of regulatory work. Follow closely.

The Murphy DEP just issued an approval of an “environmental justice review” of the proposed new gas power plant for the Passaic Valley Sewage Commission facility in Newark. The approval included what DEP calls “special conditions” (read the document here)

The DEP’s approval was issued pursuant to an Administrative Order issued by DEP Commissioner LaTourette. Legally, an Administrative Order issued by a DEP Commissioner can not establish binding and enforceable regulatory requirements on permit applicants. An AO can only bind DEP employees. It has no more legal effect than a press release.

Accordingly, the “special conditions” imposed by DEP in the EJ review approval document are not binding and can not be enforced by DEP.

The DEP’s approval was NOT approval of an air pollution control permit, in this case what’s known as a Title V Operating Permit Renewal And Modification.

If you closely read the fine print in the DEP approval document – which misleadingly conflates the Operating Permit and the EJ review – you can figure this out.

Even NJ Spotlight reported this, but they did so in a misleading way. They reported the permit issue only AFTER reporting on the “special conditions” and with no mention of the fact that those conditions were not enforceable:

LaTourette said DEP expects to release a draft permit in August that will be subject to a public comment period, and then subject to review by the U.S. Environmental Protection Agency. A final permit is expected to be issued early next year.

The DEP’s approval was NOT issued pursuant to the highly touted Environmental Justice law. As I’ve written several times, that law does NOT apply to the proposed PVSC power plant permit application, see these posts, where I drill down on that:

• Murphy DEP Commissioner LaTourette Is Misleading The Public About The Environmental Justice Law And PVSC Fossil Power Plant

• Proposed Newark Fossil Power Plant Exposes Major Flaws In DEP Climate, Air Quality, And Environmental Justice Regulations

Repeat: The “special conditions” imposed by DEP in their environmental justice review approval document are not enforceable and they are not official permit conditions.

So, the PVSC permit and this DEP environmental justice review expose huge loopholes and the sham of the environmental justice law and Commissioner LaTourette’s lame efforts to close loopholes in that law via his Administrative Order and a similarly unenforceable DEP Guidance Document, see:

• Murphy DEP Environmental Justice Stressor Guidance Document Is An Exercise In Gaslighting And Manipulation

• The People Of Newark Are Being Duped By DEP Review Of Proposed Fossil Power Plant

My guess is that DEP Commissioner LaTourette is not only gaslighting the public to avoid revealing those regulatory shams.

My guess is that he’s bluffing the PVSC Commissioners and attempting to generate public pressure on them to abandon the project.

In other words, LaTourette is putting a regulatory gun to the head of PVSC, but that gun is loaded with blanks.

My guess is that Commissioner LaTourette thinks that if the PVSC Commissioners are required to comply with the DEP’s “special conditions” and spend millions of dollars for a power plant they can not use, then they will realize that the economics don’t work and abandon the project.

But this stunt won’t work.

The PVSC has competent lawyers who know that DEP can’t back up and enforce those “special conditions” in a real Title V Operating Permit.

If the PVSC still wants to build the power plant, my guess is that they will wait until receiving the real DEP Title V Operating Permit that LaTourette said would be issued in August. That would call LaTourette’s bluff.

But, on the other hand, if the PVSC Commissioners are looking for a graceful face saving way out, they can blame the DEP’s expensive “special conditions” – and that would allow the Murphy DEP to declare victory too.

DEP also might include the special conditions in the draft Title V Operating Permit and then blame US EPA for striking them out.

So, this could all be some kind of complicated Kabuki dance.

My guess is that any DEP issued Title V Operating Permit will NOT include those “special conditions” – and if it does, the permit will be litigated and the “special conditions” struck down.

Word.

Journal Sees No Threat To “The Administrative State”

To Their Credit, They Published My Rebuttal

NJ Law Journal Is Out Of Touch With The NJ Bar And NJ’s Progressive Legal Tradition

The NJ Law Journal editorialized on Monday (7/15/24) on the recent controversial US Supreme Court’s decision that struck down the “Chevron” doctrine regarding judicial review and deference to administrative agencies involving complex interpretations of science and legislative language.

The NJ LawJournal editorial concluded: (emphasis mine)

… as years of New Jersey experience appears to teach, it does not result in an overly intrusive role for the judiciary in the executive function of implementing legislative programs. Without more, we are as yet unprepared to join those who believe that the overruling of Chevron in and of itself will result in the disassembly of modern administrative regulatory programs.

• New Jersey’s Experience Shows That ‘Chevron’ Deference Not Essential to the Administrative State

The NJLJ editorial downplayed the significance of the decision, ignored the intellectual history and policy implications, and basically misled readers.

Although I am not a lawyer, I’ve long been a regulatory practitioner and advocate who deals in the day to day regulatory weeds of the Court’s decision. I fully understand how these esoteric legal doctrines impact day to day life of the American people, across a broad range of issues.

I’ve written about these issues many times over the years. I’ve long warned and predicted that the Court would strike down “Chevron” as part to their ideological attack on the “administrative state” and right wing efforts to kill the last vestiges of the New Deal.

So I responded with this Letter to the Editor, which they surprisingly printed today:

Dear NJLJ – As a former DEP regulator and environmental advocate, I read with interest your editorial: “New Jersey’s Experience Shows That ‘Chevron’ Deference Not Essential to the Administrative State”.

I’d like to make one observation and ask one question:

You claim that Loper means: “the amount of deference to agency expertise depends on whether the issue at hand actually involves such expertise.”

Where does the opinion actually say that? I came to exactly the opposite conclusion, i.e. that the Court had absolutely no duty to consider the Agency’s interpretation, even in mixed science-law cases, which is the most typical situation.

Second, the editorial concludes by asking for “more”: “Without more, we are as yet unprepared to join those who believe that the overruling of Chevron in and of itself will result in the disassembly of modern administrative regulatory programs.”

May I suggest that “more” evidence includes: 1) several recent decisions that overruled major EPA regulations, including under the “major questions” doctrine”: 2) the Court’s attempts to revive the pre-New Deal “non-delegation doctrine: 3) longtime criticisms by Justices Kavanaugh and Gorsuch of “the administrative state”; and 4) longstanding Federalist Society and other legal advocacy attacks on the “administrative state”, which is important given their role in Court appointments and membership of Justices.

Finally, although not a technical matter of law, the editorial fails to note that key NJ environmental programs are federally delegated (Clean Air and Clean Water Acts). Accordingly, the likely rollbacks of federal laws will impact NJ DEP programs and the environment in NJ.

Respectfully,

Bill Wolfe

And I didn’t even mention Trump Project 2025.

Perhaps the NJ Law Journal is out of touch with the NJ Bar and NJ’s progressive legal tradition.

A Case Of Twisted Priorities

[Update below]

The Murphy DEP just issued a press release announcing the award of $4.75 million to fund various ocean monitoring projects to support their off shore wind program:

NEW JERSEY RESEARCH & MONITORING INITIATIVE MAKES $4.75 MILLION AVAILABLE FOR PROJECTS TO ENSURE ECOLOGICALLY RESPONSIBLE DEVELOPMENT OF OFFSHORE WIND

TRENTON – The New Jersey Department of Environmental Protection and New Jersey Board of Public Utilities, in conjunction with the New Jersey Sea Grant Consortium, today announced that the state’s Research & Monitoring Initiative (RMI) is issuing a request for proposals that will make $4.75 million available for research projects focused on furthering ecologically responsible offshore wind development.

The funded projects will characterize ecological conditions prior to construction and/or address impacts to a resource during construction. Proposals submitted should clearly and concisely describe what measurements, analyses, or tool(s) are necessary during the preconstruction and construction phases of offshore wind development to achieve this central objective of the RMI. The RMI’s request for proposals is available through the New Jersey Sea Grant Consortium, which is contracted to handle the administration of the project solicitation and awarding of funds.

It is not clear whether this $4.75 million is in addition to the $3.7 million announced last March.

First of all, this research should be fully funded by the corporate wind developers. The DEP release implies that some funding is from the wind industry, but it is unclear how much. It represents another public subsidy to corporate wind developers. (see update below for clarification)

Second, the DEP comes right out and admits that the objective of this research is not scientific inquiry, but rather for:

research projects focused on furthering ecologically responsible offshore wind development.

DEP comes right out and admits the “research” is to further[ing] ecologically responsible offshore wind development.”

That’s not “research” that’s “development”.

But more importantly, it illustrates twisted budget and policy priorities.

The DEP closed down the Newark air pollution monitoring station almost 2 years ago, see:

• There Is No Air Pollution Monitoring Station In Newark – The Murphy DEP Shut It Down

There is no money for that. But there is to subsidize corporate wind.

Ironically, wind power is supposed to replace fossil energy sources who cause the air pollution in Newark!

Yet there is no money for monitoring pollution levels that harm the people of Newark.

[Update – 7/23/24 – On 7/17, I asked the DEP some questions (in bold below) on the source of funds for the wind research. I just received DEP’s reply, as follows:

———- Original Message ———-

From: “DEP OffshoreWind [DEP]” <OffshoreWind@dep.nj.gov>

To: Bill WOLFE <b>

Date: 07/23/2024 3:11 PM EDT

Subject: RE: [EXTERNAL] Re: wind research

Good afternoon Mr. Wolfe,

Please see the response below to your questions.

Is today’s $4.75 million in addition to the $3.7 million announced in March?

Yes, that is correct. The $3.7 million announced in March was describing projects currently funded by the NJ Research and Monitoring Initiative for offshore wind. The request for proposals that was opened on July 17 is seeking additional research projects with up to $4.75 million available in grant funding for new projects.

Are all the projects announced today fully funded by the wind industry? Are any public funds allocated? Please identify the sources of funding for each project.

RMI funds consist of $10,000 per MW provided by offshore wind developers through Solicitations 2 and 3. The RMI program and its Steering Committee use this funding for regional research and monitoring related to offshore wind by selecting projects that are consistent with the short-term highest priority research & monitoring needs. The entirety of the $4.75 million in grant funding that is available under the July 17 RFP comes from this RMI fund.

Sincerely,

NJDEP Offshore Wind Team

Environmental And Climate Groups Oppose DEP Extension Request 

Very Little Public Participation In DEP’s Public Hearing This Morning

Source: NJ DEP Ozone SIP

The Murphy DEP is seeking a 9 year delay, until 2033, for compliance with the 70 part per billion National Ambient Air Quality Standard (NAAQS) for ground level ozone:

Reclassification Request for Northern NJ-NY-CT Nonattainment Area

As discussed in New Jersey’s letter to USEPA dated May 23, 2024, based on monitoring data and modeling data, New Jersey requests a voluntary reclassification for the Northern NJ-NY-CT Nonattainment Area from Moderate to Severe, with a new attainment date of August 3, 2033. (SIP @ p. xix)

NJ is not in compliance with the current standard, failing to meet the standard on 17 days in 2023. Ozone is a major threat to public health, see DEP Ozone SIP:

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

Climate change and increasing number of extreme heat days will only make current problems worse, as high temperatures exacerbate ozone formation and lead to higher levels.

The DEP held a public hearing on the proposed State Implementation Plan (SIP) proposal this morning.

The DEP submitted the proposed SIP and 2033 extension request to the EPA for approval.

DEP is also asking for an extension and compliance relied under an “Extreme Events Demonstration” as a result of wildfires in Canada and the Midwest that impacted NJ’s air quality last June.

Two environmental groups testified to oppose the delay request: Ken Dolsky of Don’t Gas The Meadowlands and Amy Goldsmith of Clean Water Action.

Both made similar comments about the need to ratchet down on current pollution sources and impose mandatory measurable and enforceable pollution control strategies. Both emphasized the impacts of climate change on extreme weather and the number and intensity of bad air ozone days.

I testified as a citizen.

I criticized the procedural error the Department made in posting an incorrect date of the public hearing on the DEP website. I requested that the DEP go back to square 1 and republish a new 30 day comment period and hold real public hearings across the state. I also criticized the lack of public outreach and community involvement, particularly in disproportionately burdened environmental justice communities.

I also criticized the closure of the Newark air quality monitoring station and failure to open a replacement. I noted conflicts between the DEP’s claims of 17 monitoring stations versus reporting data from only 8 of them. And I called for an expansion of the network to measure actual ground level urban conditions where people breathe. see:

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

• There Is No Air Pollution Monitoring Station In Newark – The Murphy DEP Shut It Down

I opposed the wildfire exceptional event demonstration. see:

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

I noted significant inconsistencies and conflicts in data, particularly with respect to projected climate related emissions reductions versus various projected growth factors, particularly for use of natural gas. DEP SIP projects emissions reductions and compliance, yet many other variables are increasing.

Finally, I questioned the assumptions, data and models for the Transportation Conformity Analysis. There have been major increases in highway and port capacity, vehicle miles driven, and emissions, yet the SIP relies on projected reductions in mobile source emissions, despite all this growth!

I was pleased by Ken’s and Amy’s testimony, but disappointed that there was no other environmental groups or citizens participating, given the importance of this DEP plan for public health.

I’ll file a request for a hearing transcript and post a link when I get it.

In the meantime, the public comment period is still open until July 17 and people should reach out to EPA and demand that they deny DEP’s extension request and enforce the Clean Air Act. This would force DEP to crack down on polluters and reduce emissions.