Posts Tagged ‘dep’

Cleaning Up Clean-ups in NJ

Written by Mike Pisauro on January 29th, 2009 in Clean Up, legislation | No Comments »


Late Monday afternoon the legislature released what is likely to be the final draft of the State’s proposed revisions to its site remediation laws.  I have written about the bill proposal before (here).  The administration has continued to push a solution that will not enhance the protections we all deserve and will in fact likely reduce those protections.

Several groups including the group I represent, New Jersey Environmental Lobby, have been opposing this bill and held a press conference on Wed. outlining the environmental communities’ concerns over the bill.  A copy of the press release can be found LSP Press Release.

One of the biggest issues surrounding this bill is that the administration is bent on sending the responsibility for cleanups to third parties.  Those third parties are the companies that are being paid by the responsible party to investigate the site, develop the cleanup plan and to actually undertake the remediation.  While I believe that there are good consultants at there, something is very broken.  Over the last several years we have seen too many instances of properties that were supposed to be clean but were not.  Just a few examples:  Kiddie Kollege, W.R. Grace in Hamilton, the Edison Ford Plant, Martin Luther Middle School in Trenton.  These are the very same consultants that will be responsible for certifying to the DEP that they are doing everything that is required under the statutes and regulations.

Another very interesting thing about this process is that DEP routinely receives documents that are incomplete or inaccurate from the very same consultants that will be trusted with overseeing the cleanups.  DEP employees then have to spend time and effort to have these submissions corrected.  This is time and effort that could be better spent on ensuring that cleanups are proceeding according to the law.

Lastly, these DEP employees are funded by the permit fees submitted by applicants.  These employees are not a drain on taxpayers.

There is no question that site remediation is broken, but the “LSP” bill is not the solution.

The Senate Environment Committee will be holding a hearing on Monday, Feb. 2nd where the committee will be taking testimony.  There will be a second hearing where the committee will not be taking testimony but will be voting on the bill.

Lisa Jackson's confirmation hearing today

Written by Mike Pisauro on January 14th, 2009 in Uncategorized | No Comments »

Today, the U.S. Senate Committee on Environment and Public Works will be taking testimony on Lisa Jackson’s appointment as EPA commissioner.  Lisa wsa the former Commissioner of NJ DEP.  The hearing will begin at 10a.m.  I believe you can listen to the hearings as they occurr by clinking on this link.

Global Warming Action plan has been released.

Written by Mike Pisauro on December 18th, 2008 in Global Warming, Renewable Energy, Sustainability | 1 Comment »

Recently, the New Jersey Department of Environmental Protection released the State’s draft plan on addressing global warming.  (click here for a copy of the plan).  This plan behind schedule as the Global Warming Response Act required that the plan be presented to the Governor, legislators and the Treasurer no latter than June 30, 2008.  NJSA 26:2C-42(c).  At least part of the delay was the desire to utilize the State’ energy master plan which was released in October.

DEP will be holding several public hearings on portions of the plan in January with the intent of finalizing the plan.  This would also seem to me to indicate that DEP will not make the January 1, 2009 deadline for reporting how the State is doing with emissions, reduction of emissions and progress on the plan.

While I am reviewing the plan, here are a few highlights.  The Plan is broken down into sectors: Land Use, Transportation, Energy Efficiency, Renewable energy and provides many recommendations on how to proceed.  The Plan also points to three things the State has done while it was generating this plan:  The Energy Master Plan, RGGI and the State’s Low Emission Vehicle program.

I do not want to knock the State, but if these are the three major things the State has done to move its battle on global warming, I am somewhat disappointed.  First, we missed the first RGGI auction.  The second auction is scheduled for today and NJ is participating.  Second, the EMP was just finalized and many of its recommendations need legislative action.  Some of this Legislative action has been proposed for many months (if not a couple of years) and is not moving.  Lastly, the State’s adoption of the California low emission vehicle program is on hold and in litigation.  For California’s program to be in effect, EPA had to issue a waiver to California.  Once that waiver was issued the other states could follow.  EPA denied that waiver last year.   This denial has resulted in a lawsuit by California and a call for EPA to reconsider.  With the new administration and our new EPA administrator, Lisa Jackson, hopefully the waiver will be reconsidered and issued.

In short I still have to finish my review but I am glad that there is a plan and the State will be taking public comments on the plan.  I hope to have more information on the plan up shortly.

Court allows Threatened Species to exist

Written by Mike Pisauro on December 11th, 2008 in Courts, Endangered Species, Wetlands | No Comments »

In mid-November the Appellate Division handed to DEP a win by finding that the barred owl could be threatened.  In ZRB, LLC. v. NJ Dept. of Environmental Prot., A-6046-06T3, ZRB sought to fill in wetlands under general permit #6.  Under general permit #6, a permittee can fill in limited amounts of freshwater wetlands as long as the freshwater wetlands are not classified as an exceptional resource.  Freshwater wetlands are classified as exceptional, intermediate, or ordinary.

The applicant alleged the wetlands were of intermediate value and could be filled while the DEP alleged because of the property was of exceptional value.  DEP claimed the property was of exceptional value because it was suitable habitat for the barred owl.  In NJ the barred owl is considered to be a threaten species under N.J. Endangered and Non-game Species Act.  While the case is interesting for several reasons, the aspect I am going focus on is whether DEP is authorized to list a species as threatened.

In 1973 both New Jersey and the Federal government enacted endangered species laws.  Under the Federal ESA an “endangered species” is defined:

any species which is in danger of extinction throughout all or a significant portion of its range  . . .  16 U.S.C. 1532(6).

The Federal ESA has a separate definition for “threatened species” and provides a different level of protections.  Under the Federal ESA, “threatened species” are defined as:

any species which is likely to become an endangered species within the foreseeable future throughout all or a signification portion of its range.  16 U.S.C. 1532(20).

The Applicant argued that since the New Jersey Endangered and Non-game statute does not define “threatened,” DEP could not create threatened species in its regulations.  DEP’s regulations define threatened as, “a species that may become endangered if conditions surrounding it begin to or continue to deteriorate.”   NJAC 7:24-4.1.  If there could not be a threatened species, then DEP could not classify the freshwater wetlands as exceptional and the applicant would be able to fill in the wetlands on its property.

The Applicant was only partly correct in its argument.  While the NJ statute does not have a separate definition for “threatened” its definition of endangered is:

“Endangered species” means any species or subspecies of wildlife whose prospects of survival or recruitment are in jeopardy or are likely within the foreseeable future to become so due to any of the following factors . . . NJSA 23:2A-3(C).

According to the Appellate Court, the highlighted section is the lynch pin.  As the DEP’s definition of threaten is actually part of the definition of endangered the Appellate Court found that the DEP did not exceed the authority granted to it under the statute.  Since the DEP was reasonable in creating the threatened category in its implementing regulations and listing species as threatened, its denial of the general permit to ZRB was within DEP’s authority.

Has Jackson even unpacked yet?

Written by Mike Pisauro on December 11th, 2008 in Politics | No Comments »

Lisa Jackson is likely the shortest staying chief of staff in NJ history. Ms. Jackson left the post of DEP commissioner. She was supposed to have started December 1st as Corzine’s chief of staff. President-elect Obama has named Lisa as the EPA administrator.

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.

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.

Appellate Division examines Highlands regulations

Written by Mike Pisauro on July 23rd, 2008 in Clean Water, Highlands | 1 Comment »

The Appellate Division recently issued an opinion upholding part of DEP’s Highlands Act rules while sending a part of it to the Office of Administrative Law for a hearing. The Court’s opinion can be found here. In May 2005, DEP adopted interm rules implementing the Highlands Act. Final rules were adopted by DEP in December 2006. The New Jersey Farm Bureau filled an appeal of these rules challenging the sections dealing with water allocation and the septic density.

Essentially the Farm Bureau alleged that the water allocation rules, as proposed by DEP, were not authorized by the statute. DEP’s rules provided that DEP may modify an existing water allocation permit if the permittee had been using less than 80% of the allocation over the five years or if “all practical water conservation measures are not undertaken.” NJAC 7:38-3.2. Before DEP may reduce an allocation DEP must provide a permittee with a public hearing on the reduction prior to the modification of the permit. The Farm Bureau argued that the authorizing statute, NJSA 13;20-32(d) provide DEP the authority to reduce an allocation only when, “measures to the maximum extent practicable are not implemented to reduce demand.”

First the Court noted that DEP could not modify an allocation solely because the permittee was using less than 80% of the allocation. The Court then went on to uphold the DEP’s regulations because the regulations were permissive not mandatory. It noted that “DEP ‘may’ reduce an approved water allocation if the actual usage has been less than 80% of the allocation for the previous five years.” And that before tDEP could modify the permit, the permittee has to be afforded a hearing on the modification. If a permittee could show that it has reduced demand “to the maximum extent practicable” then DEP could not reduce the permittee’s allocation. Therefore, the Court reasoned there was no conflict between the authorizing statute and the implementing rule.

The Court also made short work of the Farm Bureau’s other argument that the rules conflicted with the Water Supply Management Act by noting that the Highlands act specifically permitted the regulations to conflict with the Water Supply Management Act. NJSA 13:20-32(d).

Where the Farm Bureau did score somewhat of victory was its challenge to the septic density standard. The Highlands Act directs DEP to adopt a septic system density standard, in the preservation area, that will prevent the degradation of water quality or that is necessary to restore the water quality and that is protective of ecological uses. NJSA 13:20-32(e). The DEP regulations provided that on lots containing all forests a septic system would require 88 acre lots. On non-forested lots a septic system would require 25 acre lots. N.J.A.C. 7:38-3.4(b)(1) & (2). The Farm Bureau alleged that DEP should have used average recharge rates instead of recharge rates based upon a drought. They also argued that DEP’s assumption of the number of people per household was too high and DEP’s selection of ambient nitrate levels were too low. Therefore, the Farm Bureau argued that if DEP used better numbers in their calculations that the density requirements would be much lower.

The Court found that the Farm Bureau had raised sufficient questions as to the methodology used by DEP to arrive at the standards that a hearing before the office of administrative law should be held to create a sufficient record to determine whether DEP’s methodology could be found not to be arbitrary and capricious. In essence the Court found that DEP did not create a sufficient record in its rulemaking to allow the Court to defer to the agency’s expertise. In its opinion the Court directed DEP in the OAL hearing, “that this methodology has been used by any other agency with comparable regulatory authority.”

The remand by the Court is either an opportunity for DEP to back up its methodology with facts or an opportunity for the Farm Bureau to show that DEP’s methodology and resulting rule is not based upon science and the facts; therefore it is arbitrary and capricious.

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