Archive for November, 2008

DEP's Beach Access Rules all washed up.

Written by Mike Pisauro on November 27th, 2008 in Courts, Ocean | No Comments »

Last week the New Jersey Appellate Division invalidated at least part of the Department of Environmental Protection’s beach access rule.  The rules, adopted in 2007, required coastal towns that provide unrestricted access to the beach.  Towns that seek shore protection funds are required to provide parking spaces and restroom facilities close to the beach.

The Borough of Avalon and others sued DEP alleging that the beach access rules were beyond the authority of the Department.  DEP argued the beach access rules were authorized by the public trust doctrine, Coastal Area Facility Review Act (CAFRA), and the Shore Protection Fund Act.  The Appellate Division found DEP’s basis for authority to be unpersuasive and invalidated the Public Access Rules.  This is somewhat startling given that the Courts give all due deference to the agencies and presume that the rules are valid and reasonable.

In invalidating the rule, the Court noted that township may close public facilities, including beaches, at times when use of the public facility may pose a threat to public safety.   Township’s further have the legal authority to implement reasonable “regulations as to the use and enjoyment of the beach.”  This right of the township is not inconsistent with the public trust doctrine according to the Court.  The Court then compared this broad right with DEP’s narrower authority to control the beaches.  The Judges found no basis in the law or the Public Trust Doctrine for the DEP to interfere with this township right.

The Court made short work of DEP’s argument that CAFRA provided the authority to implement the rules.  CAFRA provides DEP authority to regulate certain land use applications, including development of greater than 24 units;  developments on the dunes etc.  The Court found absolutely no authority under CAFRA for the rules.

Lastly, the Court noted that the Shore Protection Fund statute only authorized the DEP to develop a ranking system for shore protection projects and recommend projects to the legislature.  NJSA 13:19-16.2(a).  It is then up to the Legislature to enact the actually funding of non-emergency shore protection funding.  According to the Court, northing in the statute gave DEP authority to place obligations upon township in exchange for these funds.

At this time it is not clear whether the DEP will seek certification to the New Jersey Supreme Court.  The real solution is for the legislature to pass a bill authorizing DEP to implement the regulations.  Given that the State has already enacted a bill delaying the implementation of the beach access rules’ application to marinas, such a result is very unlikely.

DEP gets a new captain

Written by Mike Pisauro on November 19th, 2008 in Politics | No Comments »

Gov. Corzine has selected Mark Mauriello to head the DEP.  Mr. Mauriello will take over immediately pending his confirmation by the Senate.  The announcement is here.  This is a period of change not only as to who is heading DEP, but within its programs. DEP has pushing the privatization of site remediation, permit efficiency, disbanding the Division of Science,  and attempting, with BPU’s help, to tackle global warming.   DEP will need strong leadership that keeps the eye on the ball, protecting the environment.  I hope Acting Commissioner Mauriello steers this massive ship in the right direction.

Offshore wind, renewable energy and carve outs

Written by Mike Pisauro on November 18th, 2008 in Clean Up, Ocean, Politics, Renewable Energy | 1 Comment »

New Jersey, as does many other states, has a renewable energy portfolio standard (RPS).  This requires utilities to either generate a certain percentage of the energy used in the state from renewable sources or to pay others to generate that electricity from renewable sources.  This payment is in the form a renewable energy credits (RECs).  People and companies that have wind turbines or solar panels (among other sources) create RECs for each megawatt of electricity that is generated.  These RECs are then purchased by the utilities to fulfill their RPS obligations.

Currently NJ requires that 22.5% of electricity comes from renewable sources by May 31, 2021.  Because the BPU and the State of New Jersey want to encourage the development of solar energy, the RPS has a carve out for solar energy.  By May 31, 2021 2.12% of our electricity must come for solar systems.  The remainder of the 20.38% is required to come from Class I and Class II renewables.  Wind and solar are examples of Class I.  Hydro and resource recovery facilities are examples of Class II systems.

Two things are occurring that will change this landscape.  First, the energy master plan seeks to increase the RPS requirements.  The RPS will be increasing to 30% once BPU proposes new regulations to implement the EMP.  Again, there will be a carve out for solar energy.  Under the EMP the state is expecting 2,120 gwh of solar energy which is an increase of gigawatts.  The State is also seeking 3000 MW from offshore wind by 2020.

The second new event is that the BPU is considering a carve out for offshore wind.  This would make two class I carve outs.  BPU is looking to see whether it is feasible or advisable for there to be a carve out to encourage offshore wind farms so that the EMP’s goals of 1,000 MWs can be reached by 2012 and 3,000 by 2020.  BPU is setting up a stakeholder process to determine whether if to set up a carve our; how to set up a carve out, what the schedule for the RPS should be and other factors.  A copy of the BPU’s order is here.

The solar carve out is probably a major factor in NJ being the second in the nation in energy generated from solar systems.  California is number one.  The question is can a carve out for offshore wind accomplish the same thing.   Also, is a carve out even necessary?

DEP Commissioner to Chief of Staff to EPA Administrator?

Written by Mike Pisauro on November 14th, 2008 in Politics | No Comments »

Commissioner Jackson could potentially be the shortest serving chief of staff in NJ history.  Effective Dec. 1st, she will no longer be DEP commissioner but will be Governor John Corzine’s chief of staff.    She was also named by President-elect Obama’s team to be part of his transition teams for Energy and Natural Resources, i.e. searching of a new EPA administrator.  She is also being considered to the position of EPA Administrator along with Robert F. Kennedy, Jr., Carol Browner, Kathleen McGinity and others.  Also, there is still no word on who the new commissioner of DEP will be.

DEP releases proposed site remediation bill

Written by Mike Pisauro on November 7th, 2008 in Clean Up | 2 Comments »

There is a general consensus, both in the environmental community as well as the regulated community, that New Jersey’s process to clean up contaminated properties is broken.  New Jersey was once a model and pioneer on cleanups.  Now contaminated sites linger.  For the last several years that has been a string of cases dealing with contaminated sites, Kidde Kollege, W.R. Grace, Ford’s Edison plant, Ringwood and probably others.  A Federal government report came out critical of how DEP has handled cleanups.  The State has recognized that something has to be done.

After a lengthy and long process that began over a year ago we have reached another milestone.  Back in June the legislature released a bill to revamp our site clean up process, S1897/A2962.  Now, DEP has released their own bill on how they would like to see this revamping occur.  From what DEP said last week their bill has been crafted after many consultations with the Chairmen of the Senate and Assembly environment committees.  This major revamping will get a public airing on November 13th, when the legislature holds a joint Senate Environment and Assembly Environment and Solid Waste hearing to discuss DEP’s bill.  It will then be scheduled for another hearing(s) where the bill will be voted on by the committees.

DEP’s bill (here) is 130 pages long and I have not had a chance to read it as of yet, but based upon a meeting last week, this is what I understand to be in the bill.  Many things may have changed from that meeting till the release of the bill on Wed as DEP was still working on the draft.  I will have another post once I have had a chance to review and digest the bill.  Also, here is a link to DEP’s stakeholder site where there is more information regarding the stakeholder process and prior testimony on the state of site remediation.

First, DEP will start a licensed site professional program (LSP).  These LSP will be the ones responsible for determining how to clean up (with some exceptions), the review of the cleanup and then the final review and determination that the site has been cleanup in accordance with New Jersey law.  The LSP is responsible for certifying to the DEP that all documents submitted to the DEP is accurate and in accordance with the law.

The LSPs will be selected and paid directly by the responsible party.  A proposal from the environmental community that the LSPs be selected by the DEP for each particular site and that the DEP pay the LSPs from an escrow fund funded by the responsible parties has been rejected.  This LSP program has been modeled after the Massachusetts program.

LSPs will be subject to random audits and a “strict” code of ethics.  These audits could be of multiple cites that are being handled or had been handled by the LSP.  DEP’s position is that the threat of audits, the code of ethics is enough to make sure there is no undue influence on the LSPs.

There will remain a class of contaminated sites that DEP has more oversight responsibility for.  These may be active sites whose owners or responsible parties have difficult and slow to clean up their properties.  These “Tier 1” sites may also be those that pose the greatest risk to natural resources because of the nature of the contamination or its location to natural resources.

Second, the DEP will no longer issue No Further Action letters.  These NFAs would be issued once a site was clean-up and were relied on by the regulated community and financial institutions to buy and sell formerly contaminated sites.  Now the LSP will certify the site is clean and DEP will not require further clean up as long as what was done was protective of the environment and human health; that it was actually done or that contamination was not missed in the original site investigation.  I can’t see how this one would be acceptable to the regulated community, but we will see.

Third, DEP is asking that the statutes of limitations (SOL) affecting contaminated sites be consistent with each other.  For example the statute of limitations for natural resource damages is longer than that for cost recovery.  DEP is proposing that all SOL’s been the same.

Fourth, DEP is going to (maybe) receive more authority to pick or require certain remedies at educational facilities, child daycares, and residential developments.  This may in fact be an illusionary increase in authority.

Fifth, during the stakeholder process DEP found a large percentage (I think the number is like 30+% but I don’t remember) of applications that come into the Department were deficient.  DEP will institute strict timelines and procedures on how to return a deficient application and for the LSP to provide the revised or corrected application.

Once I have had a chance to look at the bill I will post further comments and correct those things that may have changed from the meeting last week to Wed’s release.

Changes at DEP

Written by Mike Pisauro on November 3rd, 2008 in Uncategorized | No Comments »

Over the last several weeks major changes have been announced at New Jersey Department of Environmental Protection.  First, Commissioner Lisa Jackson will be leaving DEP to become Governor Corzine’s chief of staff on Dec. 1st.  Commissioner Jackson’s replacement has not been announced as of yet.  Several names have been floating as possible replacements.  How is this transfer going to affect DEP?

The second change is that DEP has announced they are going to disband the Division of Science, Research and Technology.  In its stead will be an Office of Science and an advisory board. I believe that it is vitally important that there be a robust science component within DEP that is actively engaged in scientific research and review of others research.  Without this component than DEP is at the mercy of outside organizations for their information.  Information that forms the basis of regulations, permits, etc.  This has the potential of allowing bad science to become generally accepted and used for the basis of protecting our environment.  Industry funded research should not be the basis DEP uses to write regulations, technical guidance or issue permits.