Posts Tagged ‘NJ’

SRRA, LSRP, SRPLB and what it all means.

Written by Mike Pisauro on August 15th, 2012 in Clean Up, legislation, Regulation, Site Remediation | No Comments »

On May 7th we entered a brave new world.  As of that date all contaminated sites are now required to hire a Licensed Site Remediation Professional (LSRP).  LSRPs were created as a result of the Site Remediation Reform Act (SRRA) that was passed in 2009.  The State was moved to pass SRRA because many stakeholders thought that the process at that time was broken and that change was needed to address the 16,000 to 20,000 sites in need of remediation.  What exactly is an LSRP and what does SRRA do?  Following is an expansion on a presentation I gave at the New Jersey State Bar Association’s Environmental Law Section’s Environmental Law Weekend.  Hopefully, this explanation can provide some answers to those questions – and more.

 

             What is an LSRP?

According to SRRA, an LSRP is “an individual who is licensed by the board pursuant to Section 7 of P.L 2009, c. 60 (C.58:10C-7) or the department pursuant to section 12 of P.L. 2009, c. 60 (C.58:10C-12)” but that definition is not very helpful.  DEP further defines an LSRP as a person who, by education, training and experience, is licensed by the State of New Jersey to oversee the remediation of contaminated sites.  I like to think of them as the professionals who determine if a property is contaminated, how contaminated it is and how to clean it up and who oversees the cleanup and then declares the property clean.

According to SRRA, to be eligible to become an LSRP a candidate must meet the following standards:

  • Hold a minimum of a bachelor’s degree in natural, chemical or physical science or an engineering degree in a discipline related to site remediation.
  • Have eight years of full time professional experience.Have a minimum of 5,000 hours of relevant professional experience within the state
  • Have not been convicted of, or pled guilty to an environmental crime, any similar or related criminal offense; or any crime involving fraud, theft by deception, forgery or any similar or related offense.
  • Has not had another professional license revoked within the previous 10 years

The statute defines “full-time professional experience”as experience in which the applicant is required to apply scientific or engineering principles to contaminated site remediation where the resulting conclusions form the basis for reports, studies or other documents connected with the remediation of a contaminated site.  The Board further defines full time professional experience as having primary decision making responsibility.

In addition to the requirements for education, training and experience, the LSRP is guided by a code of conduct which encompasses 26 items.  Most importantly –and, consequently, first on that list – is that: An LSRP’s highest priority in the performance of professional services shall be the protection of the public health and safety and the environment.  Another big item is that an LSRP shall exercise independent judgment and is required to notify the client and the Department if the client deviates from the remedial action work plan.  Theoretically, the LSRP’s primary job is to insure that the remediation is protective of human health and the environment.

Assuming the LSRP performs their job, when the remediation is complete they certify the property was remediated in accordance with the standards and issues a Response Action Outcome (RAO).  RAOs are the functional equivalent of the No Further Action (NFA) letters that DEP issued at the end of a remediation.  The Department may invalidate an RAO under certain circumstances but must do so within three years of its issuance.

             Who oversees the LSRP?

SRRA not only created the LSRP but also put into place a board to oversee the LSRPs – the Site Remediation Professional Licensing Board

Site Remediation Professional Licensing Board

SRPLB Logo

(SRPLB).  The board consists of 13 members comprised of the following groups:

  • State Geologist
  • 6 LSRPs
  • 3 members of environmental organizations – one of whom  must also be an LSRP
  • 1 Representative of the business community
  • 1 Academic member

The current Board is short two members – the academic member and the environmental member who is also an LSRP.

The Board is responsible for administering the LSRP program.  This includes:

  • Reviewing applications to become an LSRP and approving or denying such requests.
  • Administering and evaluating the licensing exam
  • Issuing licenses and license renewals
  • Establishing standards and requirements for continuing education
  • Approving and offering continuing education classes
  • Adopting and administering standards for professional conduct
  • Investigating complaints
  • Imposing discipline
  • Providing information to the public

In order to accomplish these tasks the Board has been meeting since November 2010 and has created several committees to oversee its many obligations.  Those standing committees are:

  • Bylaws
  • Licensure
  • Continuing Educations
  • Rules
  • Outreach
  • Professional Conduct Committee
  • Finance

 Licensure

From 2009 to May 2012, while it was waiting for the Board to be installed, the DEP administered a temporary licensure program and issued a total of 572 temporary licenses.  The exams to become a permanent licensee began on May 7th.  To become an LSRP a person must apply to the Board and, once the Board reviews and approves that application, the individual is then authorized to take the examination.  305 people were authorized to take the first exam on May 7, 2012.  Of this 305, 278 took the test and 216 passed it.  The next test date is September 24th and there will also be exams in November 2012 and January 2013.  All temporary LSRPs have until January 2013 to take the exam.  After the last exam any temporary LSRP who has not taken or passed the exam will lose their temporary LSRP status and cannot act as an LSRP.  Any temporary LSRP who fails an exam can retake that exam up to three times before losing their temporary license.  After January 2013 the exam will be given on a periodic basis to be determined by the Board.  All licensees must renew their license every three years.

 Continuing Education

This committee is responsible for determining the continuing education requirements for an LSRP. It was the recommendation of the committee that an LSRP complete 36 credits of continuing education over the course of their three year licensee.  Upon applying for renewal of their license an LSRPs must be demonstrate that they have obtained the following::

—  14 Scientific & Technical credits

—  3 Ethical credits

—  10 Regularity credits

—  Balance from any of the above areas

The continuing education committee also reviews course applications and issues a recommendation on whether a course should be approved to provide continuing education requirements.

Rules

The Rules committee is in the process of taking the process documents from various committees and preparing a rule for publication and eventual adoption.  There are currently 4 subsections of the rule up for informal public comment on the Board’s website.

Outreach

This committee is tasked with encouraging public participation in the LSRP Board and it maintains the Board’s website.

PCC

As noted above, the Board is in charge of investigating complaints against LSRPs.  Any person can make a complaint.  A complaint form can be found on the Board’s website.  The job of investigating a complaint is assigned to the Professional Conduct Committee (PCC).  The PCC is made up of five board members.  When a complaint is received it is forwarded to the PCC with the name of the LSRP redacted.  Neither the PCC nor a majority of the Board knows the identity of the LSRP while the complaint is being investigated and the decision rendered.  The only person who knows the name of the LSRP is the Board Secretary who receives the complaints and does the redaction.  The same anonymity cannot be said of the complainant.  Not only does the PCC know the name of the complainant, but the LSRP being investigated is given an unredacted copy of the complaint.  Under exceptional circumstances the PCC may withhold the name of the complainant, but that is anticipated to be a very rare occurrence.  While the Board discourages anonymous complaints, under certain circumstances the PCC will review and investigate those complaints.  Assuming the complaint is not completely without merit, the PCC sets up a Complaint Review Team.

The CRT is comprised of a Deputy Attorney General, an LSRP Board member and one of the non-LSRP board members.  The CRT reviews the material provided by the complaint and can obtain additional documents and information from the DEP, complainant, the LSRP, or their parties.  The CRT also may provide both the LSRP and the complainant an opportunity to submit additional information or to speak with the CRT.  Once the CRT has investigated the complaint it makes a recommendation to the PCC. This recommendation identifies  whether there was a violation of the code of conduct, and, if so which sections of the code of conduct were violated and what the proposed penalty should be.  The PCC may accept this recommendation or send the matter back to the CRT for additional investigation.  The PCC may also modify the recommendation.  The PCC then takes the recommendation to the Board which considers the matter in a closed session. The Board will then vote on the matter in open session. Once the Board votes on the matter, the name of the LSRP becomes public and a summary of the matter is placed on the Board’s website. The LSRP then has 35 days to appeal the Board’s decision.

The PCC has received 7 complaints since its inception.  Four of those complaints are in the process of being investigated.  One of those complaints was referred to the PCC as a result of an audit.   The remaining complaints were investigated and, of those, two were dismissed, one with a warning and one reprimand has been issued.

Audit

Another very important aspect of the Board is the conducting of audits.  SRRA requires the Board to audit at least 10% of the LSRPs each year.  Since the beginning of this year, the Audit committee has been randomly selecting 5 names each month and sending those LSRPs a questionnaire to complete and return.  The number of LSRPs audited will be adjusted depending on the number of licensed LSRPs at the beginning of each year.  Each month a new Audit Review Team (ART), comprised of two Board members,  is selected to perform the audit.   According to the draft rules the Board has been writing, the Board will audit the submissions and conduct of an LSRP to ensure that the LSRP‘s highest priority in the performance of professional services is the protection of public health and the safety of the environment.  The ART reviews the completed questionnaire, and reports prepared by DEP and, based upon this review can request additional information from the LSRP and DEP.  Theoretically, the ART has additional powers to obtain information.  I would suggest the ART could request documents and information from third parties and could perform its own site inspection and testing if it felt it was appropriate.

Once the ART has performed its review it advises the Audit committee if the LSRP’s audit was satisfactory or not.  If the audit outcome is unsatisfactory the Audit committee can refer the LSRP to the PCC for a disciplinary proceeding.

 

The enactment of the SRRA signaled a major shift on how remediation occurs in the State.  The DEP, responsible parties; LSRPs and the public are adjusting to this new paradigm. The Board is putting into place the procedures and policies to guide everyone.  Eventually these policies and procedures will be adopted as rules which the Board is writing.

DEP TO START ACCEPTING WAIVER RULE APPLICATIONS ON AUGUST 1, 2012

Written by Mike Pisauro on July 31st, 2012 in Regulation | No Comments »

Beginning August 1, 2012 the gates at DEP will be open to receive applications under the new “Waiver rule.” Under this regulation, DEP has authorized itself to waive an applicant’s requirement to comply with nearly all of DEP’s rules if the applicant can show that it meets one of four very broad and undefined categories.  Although the rule was adopted on April 2, 2012, DEP delayed its implementation so that it could develop:

an internal process that will ensure consistency and transparency in the handling of all applications.  This includes standardized submissions forms, . . .  and on-line reports that will allow the public to know when applications are received and to access the DEP’s decisions.

Snapshot of DEP's waiver rule page

However, we are just hours away from the start date and a review of their website today showed no indication from DEP that any of its processes are in place. There is no online form to complete.  There are no online reports for the public to view the status of waiver requests.

DEP was also supposed to prepare internal processes to prioritize waivers and to insure that all waivers are handled in a consistent and transparent manner.  Again there is nothing available to the public that indicates that DEP has done any of this.  One has to wonder just how transparent a hidden process really is.

 

Because DEP has not indicated that it is ready to handle these applications and because of the lawsuit filed by 28 environmental and labor organizations, those groups asked DEP to stay the implementation of the rule because none of the procedures had been put in place.  The Appellants also urged the DEP not to create the procedures internally and without the ability to comment on them; but to propose those procedures through the rule making process.  The Appellants further argued that implementation should be delayed until the Appellate Division has had a chance to rule on the lawsuit.    In response to the Appellants request for a stay; DEP denied it.

So, come tomorrow, DEP will be in the business of waiving compliance with regulatory requirements.  It will be interesting to see what form those inevitable applications will take and how DEP will process processing the applications and make decisions  - as they have yet to make public what standards or processes they plan to use.  The only thing that we can be certain of is that any waivers that do come in will most certainly be appealed upon DEP’s issuance.

Past Posts on the Waiver Rule:

Assembly Tells DEP to Waive Goodbye to Waiver Rule

Waiver Rule: One Rule to Rule Them All!

Senate To Vote on Permit Extension Act and Waiver Rule: One Bad and One Good.

Written by Mike Pisauro on May 31st, 2012 in land use, legislation, Regulation | 1 Comment »

This afternoon the New Jersey Senate is voting on two very important bills:  SCR59, The Waiver Rule and S703, Permit Extension Act of 2008. These two bills are very important as SCR59 will be an important step in stopping the DEP from undermining environmental protection and S743 will help undermine environmental protections including the Highland Planning Area and the Pinelands Preservation Area.  That both bills are up at the same time is somewhat troubling.  Is the senate looking to do one good thing so that they can vote in favor of a bad thing?  While the legislative process is always one of compromise, there should not be any compromise of basic environmental protection.

I have written about the DEP’s Waiver Rule and why it is bad.  Take a look at Assembly Tells DEP to Waive Goodbye to Waiver Rule, Waiver Rule: One Rule to Rule Them All! for more information on that topic.

Why is Permit Extension Act so bad?    Hasn’t there already been several Permit Extension Acts?  Yes, and I have written about the Permit Extension of 2008 when it was originally introduced.  If we already have it, then why is S743 bad?  It is bad because it is more expansive than the original act.  The original Permit Extension Act was strongly opposed by environmentalist and the final product was the result of strong negotiations between all parties.  The final bill removed from the Act environmentally sensitive areas.    Under NJSA 40:55D-136.3(a), environmentally sensitive areas was defined to include: Planning Areas 4B (Rural Environmentally Sensitive), Planning Area 5 (Environmentally Sensitive) or a critical environmental site, the Highland Regions except for areas designated for growth and the pinelands area except for areas designated for growth.  In these areas the Permit Extension Act of 2008 did not extend permits.

S743 redefines environmentally sensitive areas.  Under the pending bill the definition of Environmentally Sensitive Area does not include either the Highlands Planning Areas or the Pinelands Planning Area.   The bill goes further by adding a definition of “smart growth area” by including all of the Highlands Planning Area as a growth area.  The Highlands Planning Area covers about 450,000 acres of New jersey of which about two-thirds of it is considered environmentally sensitive.  The Planning Area includes Under the Highlands Water Protection and Planning Act, the purpose of the planning area is to:

  1. Protect, restore, and enhance the quality and quantity of surface and ground waters therein;
  2. Preserve to the maximum extent possible any environmentally sensitive lands and other lands needed for recreation and conservation purposes.
  3. Protection and maintain the essential character of the Highlands environment;
  4. Preserve farmland and historic sites and other historic resources
  5. Promote the continuation and expansion of agricultural, horticultural, recreational and cultural uses and opportunities;
  6. Preserve outdoor recreation opportunities, including hunting and fishing, on publicly owned land.
  7. Promote conservation of water resources
  8. Promote brownfield remediation and redevelopment
  9. Encourage, consistent with the State Development and Redevelopment Plan and smart growth strategies and principles appropriate patters of compatible residential, commercial and industrial development, redevelopment , and economic growth, in or adjacent to areas already utilized for such purposes, and discourage piecemeal, scattered, and inappropriate development, in order to accommodate local and regional growth and economic development in an orderly way while protecting the Highland environment from individual and cumulative adverse impacts.

As can be seen from the above list, the main purpose of the planning area was to preserve the area while allowing limited and controlled development. This goal was reinforced by Section 12 of the Statute that provided the regional and local master plan for the preservation area shall include:

 A preservation zone element that identifies zones within the preservation area where development shall not occur in order to protect water resources and environmentally sensitive lands . . .

S743 completely ignores this requirement of the law as it restores and extends permits that may predate the Highlands Act.  The Highlands act specifically provided at all permits would expire within three years of the enactment of the Highlands if construction, beyond site preparation, had not begun.   That means if you had a permit and did not begin meaningful construction prior to August 10, 2007 your permit expired.  Under S743 permits that expired between January 1, 2007 up to the present will be revived.  Permits that have been gone for up to 5 years will now be valid.  Many of these permits would pre-date the Highlands Act and would pre-date any regional master plan and local plan that protects the sensitive areas within the planning area.

It is difficult to rectify the strong intent to protect the Highlands Planning Area with the expanded language in S743.  If this bill passes out of the Senate it will be hard to justify that vote against the 34 Senators that voted in favor of the Highlands Act in 2004.  Hopefully S743 is not passed to in its current form and the Senate stands up for the environment and all of us today.

 

Please read these related posts:

Waiver Rule:

Assembly Tells DEP to Waive Goodbye to Waiver Rule

Waiver Rule: One Rule to Rule Them All!

 

Permit Extension Act:

Governor does not veto Permit Extension Act

Enviros seek Governor’s veto of Permit Extension Act

0 to 60- Permit Extension Act passes both houses.

A bullet train that will not stop

Permit Extension Act may not be so extended

New Jersey wants to stop time

Waiver Rule: One Rule to Rule Them All!

Written by Mike Pisauro on April 30th, 2012 in Courts, legislation, Regulation | 1 Comment »

With the adoption of the “Waiver Rule” on March 6, 2012 the Department of Environmental Protection (DEP) attempted to give itself the authority to waive the requirement of any environmental regulations.  In order to qualify for a waiver one of the following four categories must be met:

  • Conflicting rules
  • Strict compliance with the rule would be unduly burdensome
  •  net environmental benefit; or
  • A public emergency

28 environmentalist and labor organizations immediately filed a lawsuit against the DEP asserting that the administration did not have the “authority to adopt a blanket waiver rule without specific legislative authorization.  The promulgation violates separation of powers provisions of the New Jersey Constitution.  The waiver rule also fails to meet required standards for specificity.  The waiver rule fails to set up necessary process for the issuance of waivers.  The promulgation of a single waiver rule for all environmental statutes is overly broad.”

What does this all mean?  Let us take a closer look at each of these points.

First, the administration did not have the “authority to adopt a blanket waiver rule without specific legislative authorization” and ‘the promulgation violates separation of powers provisions of the New Jersey Constitution.” Put plainly, does DEP have the authority to issue one rule that can affect the implementation of hundreds of other rules?  Did the Legislature grant DEP the authority to waive statutory or regulatory requirements? “An administrative agency only has the powers that have been ‘expressly granted’ by the Legislature and such ‘incidental powers [as] are reasonably necessary or appropriate to effectuate’  those expressly granted powers.”  Borough of Avalon v. New Jersey Dept. of Environmental Protection, 403 N.J. Super 590, 607 (App. Div. 2008).

That delegation of authority can be expressed or implied.  I do not believe that even DEP believes it has the express authority to issue this waiver rule.  DEP asserts that this power arises out of the implied powers in its authorizing statute as well as various other statutes.  There is a problem with this argument.

If the power is derived from its implicit powers, those powers must be fairly necessary to the implementation of the statutory authority.  In looking at the exercise of implicit authority, the Courts have stated that where there is “reasonable doubt as to whether such power is vested in the administrative body, the power is denied.”  This is because an agency only has the power that has been granted or delegated to it.  There is no statute which provides the Department with the authority, independent of its various individual statutes, to issue a blanket waiver.   Just as important, when the exercise of an implicit power concerns a policy question of significance, that power has not been delegated by the Legislature to an agency.  The Legislature has reserved policy questions of significance to itself..  What “greater policy question” can there be than which environmental protection is inferior to other protections?

Second, “the waiver rule also fails to meet required standards for specificity.” This is evidenced by the fatal deficiencies in qualifying 3 out of the 4 categories under which an applicant is eligible to apply for a waiver. Under the “conflicting rules” category are situations where compliance with one rule is prohibited by compliance with another rule – resulting in a conflict.  Further, this conflict is not limited to environmental regulations – it extends to   other agency rules as well.  The Waiver Rule, however, does not provide any guidance as to how a conflict is to be resolved.  For example, if a DOT rule requires 30 foot wide roads but constructing a 30 foot road on a parcel of property would put a portion of that road into the wetlands, under the Waiver Rule the wetland might be sacrificed for the road.  Another conflict might arise when a project is required to have zero net fill in a wetland but, in order to comply with that requirement, the road would be subject to flooding.  Which requirement takes precedence?

Under the second category, a waiver could be issued in situations where strict compliance with the rule would be unduly burdensome.  The rule ‘defines’ unduly burdensome as either:

  1. Actual, exceptional hardship for a particular project or activity, or property; or
  2. Excessive cost in relation to an alternative measure of compliance that achieves comparable or greater benefits to public health and safety or the environment.

However, the rule does not define an “actual, exceptional hardship.” Rather, the rule continues to state that one of factors to be considered is whether “the person seeking the waiver may have directly caused or contributed to the circumstances that resulted in the rule being unduly burdensome.”  This means that even if the applicant caused the hardship they will not be prohibited from getting a waiver.  For example if an applicant subdivided its property so that one or more lots are impacted by wetlands that applicant can seek a waiver from strict compliance with the wetlands rules, because it would be an exceptional hardship to comply with those rules.  DEP may still grant that waiver even though the applicant has created its own need for a waiver.   This creates an incentive for applicants to create hardships so as to maximize their economic profits while maximizing environmental damage.

The second part of the definition of “unduly burdensome” is also a bit vague on the details. The Waiver Rule does not require that the “alternative measure of compliance”  provide protection for the resource that was originally protected by the rule for which the waiver is being sought..  How then does one judge the importance of protecting one resource over another?  Is clean water more important than a nesting site for an endangered species?  Is clean air more important than protecting the water quality of a category one river?  One can certainly envision the arguments of a developer that they want to remediate and develop a contaminated site but to do so they need to impact a river.

The third criteria requires a net environmental benefit.  This provision is not limited to a situation where an applicant thinks that it may have a better way to meet the standards than what is required by the rule.  It could also apply to situations where an applicant is proposing exceeding one standard but may subject another media to less protection.  As noted above, regarding unduly burdensome, how does DEP make the determination that one statutory scheme deserves more protection than another.

The third issue raised by the waiver rule is that “the waiver rule fails to set up necessary process for the issuance of waivers.” The Courts have required agencies to “to structure and confine their discretionary powers through safeguards, standards, principles and rules”  in order to satisfy due process and produce reasoned and principled decisions” (Crema v. N.J. Dep’t of Envtl. Prot., 94 N.J. 286, 301, 463 A.2d 910 (1983)). There are no safeguards, and no standards or principles by which to judge or evaluate a request for a waiver.  In fact, DEP is delaying implementation of the waiver rule until August 1st in order to devise these guidelines.  There is no way that anyone could look at a particular project and apply the Waiver rule to it and know before applying whether that project would get the requested waiver or not.

As pointed out above 3 of the 4 categories for a waiver are so broad and undefined as to be meaningless.

The issue raised by the rule is that “the promulgation of a single waiver rule for all environmental statutes is overly broad.”  given that many of the statutes and their implementing regulations already provide for a relaxation of the rules under certain expressed circumstances, why does the department really needs one rule to rule them all.  They do not need the rule and more importantly they do not have the authority to issue the rule.

This blog post is my own opinion and is not intended to reflect the opinion of any client or organization.

2010 Report shows NJ Water Quality Not Improving

Written by Mike Pisauro on February 29th, 2012 in Clean Water | No Comments »

Yesterday, the Environmental Protection Agency approved New Jersey’s 303(d) list. (link)  The 303(d) list is required under the Federal Clean Water Act.  Every two years the DEP is required to submit to EPA a list of all the waters in the state that do not meet designated standards: drinking water supply, recreational use; aquatic life, fish and shellfish harvest and consumption; etc.  Every water body in the state should be designated for particular uses:  recreational, water supply, aquatic life, etc.  All waters should be meeting general aquatic life standards.  NJ is then supposed to use this list and prioritize the development of Total Maximum Daily Loads for affected waters.  In essence the maximum amount of a particular pollutant that a water can accommodate and still met water quality standards.

According to NJ’s 2010 Integrated Water Quality Monitoring and Assessment Report,  prepared in part to comply with 303(d), NJ has 18,000 miles of rivers and streams; more than 50,000 acres of lakes, ponds and reservoirs; 950,000 acres of wetlands; 260 miles of estuaries; 127 miles of coastline; and 450 square miles of ocean within its jurisdiction.  In order to comply with the requirements of the clean water act, NJ monitors its waters, except it does not monitor all of the waterways.

NJ’s list is very interesting and very disturbing.  Of the waters it does monitor the results are very telling.  Only 3% of NJ’s waters support all designated uses if you do not count fish consumption.  60% of our monitored waters are not clean enough to support aquatic life.  All waters in NJ are supposed to meet aquatic life designation but only 40% of the monitored waters do.  Shockingly only .only 48% of NJ’s waters are clean enough to meet the drinking water designation.  All of NJ’s waters are supposed to meet the recreational designation, but only 16% of the water does.  That means only 16% of waters in NJ are clean enough to swim in or boat in.

In an attempt to put a positive spin, the report says, “long-term trends in chemical water quality data show generally stable water quality conditions statewide, with improving conditions for some parameters and declining conditions for others.”   While I have not done a detailed comparison between the 2008 and 2010 report it would appear at first blush that there is a decline in water quality in NJ.

In short, NJ’s water quality is not good and it has not been getting better.  This stagnation or decline is despite NJ’s strong environmental laws and regulations.  While NJ’s water is not getting better the current administration is dismantling environmental protection.  There are two glaring examples, the recently enacted law delaying implementation of NJ’s Water Quality Management Plans and the pending extension of the Permit Extension of Act of 2008.  In its support of delaying the WQMP rules, DEP testified that they do not intend to enforce the regulations and will be seeking to amend the law.  In the meantime because of the delay, applications can come in based upon plans that may be decades old and the applicant is not required to prove that there is available water supply.  Also, these plans are not required to deal with septic systems.  These delays are despite the Reports acknowledgement that land use has one of the biggest impacts on water quality.

The State Legislature is in the process of passing another Permit Extension Act.  If this bill is passed permits and other approvals that would have expired on or after January 1, 2007 would be extended.  That extension could be as long as June 30, 2014.This would be third extension of permits since 2008.  The integrated report inadvertently spells out one of the issues with the Permit Extension Act.  According to the 2010 Integrated report, “if a TMDL is adopted in 2010 and permits are issued in 2011 with a three year compliance schedule, improvements might not be observed until 2014.”   Permits for discharges into our waterways are valid for up to 5 years.  This would mean that a permit issued in 2002 would be valid until June 30, 2015.  The discharger would not have to comply with any TMDL prepared after the issuance of the permit until the permit expires.  It could be up to 13 years before a discharger would be required to comply with a standard developed in 2003.  In short, TMDLs developed between 2002 and June 30, 2015 may have no effect in cleaning our water because of the Permit Extension Act.

As the Integrated Report makes clear, NJ’s environment needs serious attention.  We should be using this current economic situation to revise our regulations to ensure water quality in NJ will improve.  We should not be using it as an excuse to continue to degrade NJ’s water quality.  How much does dirty water cost our economy?  I suggest dirty water costs us more than we realize.

NJ is rapidly becoming the City State not the Garden State

Written by Mike Pisauro on August 5th, 2010 in land use, Wetlands | No Comments »

Researchers from Rowan and Rutgers University have recently released a new report looking at the changes in NJ’s land use from 1986 to 2007.  A prior report looked at the changes from 1995 to 2002.  This report adds the period between 2002 to 2007.  This report shows some very amazing facts.

The rate of development in NJ increased by 7% from 2002 to 2007.  From 1995 to 2002 NJ lost an average of 15,123 acres per year to urbanization, but that increased to 16,061 acres per year from 2002 to 2007.  As we continued to increase urbanization in the State of New Jersey we lost forests, wetlands, open space, and forestlands.  These land use changes have ramifications.  For example we lost 66.3 square miles of forest over 21 years.  This loss of land to urbanization has many negative environmental impacts.  The loss of forests has increased the fragmentation of habitat and has created more fringe areas.  Species that rely on large areas of habitat will have less large areas to hunt, bred and to live.  Fringe habitat encourages invasive species to take over.

We continue to lose wetlands to urbanization.  From 2002 to 2007 we lost 8,652 acres of wetlands or the slightly more than the total area of the Hackensack Meadowlands.   It is somewhat surprising at the level of wetlands loss since 1995 as overall federal policy is for zero wetlands loss.  Another issue with NJ’s wetlands loss is NJ’s water quality.  It is well accepted that when a watershed has 10% or more of its land covered by impervious surface that watershed is impacted to various degrees.  Increasing impervious cover will have an impact on water quality as well as flooding.    NJ’s 2008 Integrated Water Quality Report shows that NJ’s waters are not fairing well.  63% of the streams that could be assessed did not meet the standards for aquatic life.   41% of our waters do not meet the designation for recreational use and we do not know enough to determine the status of another 40%.    Interesting, the report reveals that fish and invertebrate communities were commonly impacted in urban areas and that “increase in impervious surfaces was related to a negative response in the aquatic invertebrate community.”   As we continue to pave over NJ our water quality will decrease.  This will also cause continued efforts to clean up our streams, rivers and lakes to be a more expensive proposition.

Another interesting fact the report reveals is that almost 50% of the development has taken place outside of the areas designated for growth within our state plan.  This is contrary to NJ’s State Plan, but a look at this issue will have to wait for another post.

EPA has enforcement action online, DEP has some info but not as much

Written by Mike Pisauro on May 25th, 2010 in Federal | No Comments »

I came across a very interesting tool yesterday for about the tenth time.  I learned about this tool several years ago and then forgot about it.  Every now and then I am reminded about it.  The tool is a map from EPA that shows many of its enforcement actions in a given area.  These are actions brought against a facility that has violated a permit.  You can zoom in to a specific area and select whether you would like to see enforcement actions for air, water, land, criminal, cross media or federal facilities.  A screenshot of all the enforcement actions in the NJ area is below.

NJ enforcement sites

EPA Enforcement Actions in NJ

Once you have isolated an area you can click on one of the flags to learn move about the facility.

EPA Enforcement site

Site specifics of enforcement action

While NJ does not have a similar system to locate enforcement actions, you can located licensed facilities.  DEP has the i-MAPNJ web program.

List of licensed sites in NJ

DEP's licensed sites list

Sometimes information is very useful.  Hopefully DEP will update the information available to the public.

Take a few moments to celebrate Earth Day!

Written by Mike Pisauro on April 22nd, 2010 in Uncategorized | No Comments »

Today is Earth Day.  In fact it is the 40th Anniversary of Earth Day.  I have given a lot of thought what my post will be on Earth Day.  There is a lot going on in NJ that I could be writing about and need to write about.  There is the recently released Red Tape Review.  There is DEP’s Administrative Order that did what the legislature could not do last year.  The A.O. continues to allow local government not to update decades old wastewater management rules.  I could have written about the assault on NJ’s endangered species.  In short there is a lot I could have written about and will write about soon.

Instead of writing of the many negative things going on in NJ, I wanted to write about something positive.  My inspiration for this post literally flew into mind.  For Earth Day, I want to write about two things.  First, below is a picture of a raptor that was eating its dinner on my kid’s swing set last night.  It was amazing.  It was the first time I had seen something like that so up close and so close to home.  It fascinated my kids.  I want my children to have many experiences like this.  I want my children to be able to have free access to a healthy environment.  It is moments like this that drive me to continue to lobby for the environment and to be part of the solution.

Bird eating its dinner

Bird eating its dinner

The second thing I wanted to write about was more of a challenge.  What is one thing that you can do today that will make the environment better?  It does not have to be a major item.  It could be something little.  It could be picking up a piece of litter you see on the ground. It could be taking a short shower instead of a long one.  You could choose to drink tap water instead of bottled water.   What will you do to do today?

Obama Administration channels Bush and opens up the seas to oil

Written by Mike Pisauro on April 5th, 2010 in Federal, Global Warming, Ocean, Politics | No Comments »

Last week the Obama Administration announced that it would open up the outer continental shelf or oil and gas production. It was a proposal that is very reminiscent of the Bush Administrations removal of the decades old ban on offshore drilling which I wrote about in “Another short sighted solution that solves nothing.”  While this proposal sounds like a Bush administration plan, it is supposed to be part of a broader energy strategy.  President Obama in is announcement of the plan said:

I want to emphasize that this announcement is part of a broader strategy that will move us from an economy that runs on fossil fuels and foreign oil to one that relies on homegrown fuels and clean energy.  And the only way this transition will succeed is if it strengthens our economy in the short term and the long term.  To fail to recognize this reality would be a mistake.

The problem with the plan is that I do not thin it will do what it is supposed to do.  The Obama Administration’s plan to open up the OCS will do little to reduce fuel prices or availability of fossil fuels.  It is also naïve to think that the oil and gas developed off our coasts will remain in the country.  That oil and gas will go to the highest bidder no matter where they are located.  It will also subject to the OCS from additional pollution.  Pollution that is caused by the drilling process.  Pollution that is caused by leaks in the systems of offshore drilling platforms, vessels and from the pipelines.  Pollution that may arise from spills and other accidents.

Our oceans are already severely impacted by our pollution.  To increase the amount of chemicals that are leaked into the oceans through the drilling process is not going to help our oceans.  Also, is there were to be a major spill, that would devastate NJ’s economy.  In 200?, NJ tourism was the second or third biggest industry in the State.  If an oil spill was to occur off our coast, it could foul our beaches.  And oil spills do occur.  In January of this oil an oil tanker spilt 450,000 gallons in Port Arthur, Texas.  In 2007 a tanker spilled 57,000 gallons of fuel into the San Francisco Bay causing $70 million of damage to the fisheries and beaches.  I am not even mentioning The Valdez.  By some estimates Hurricane Katrina caused 6.5 millions gallons of oil to be spilled into the environment.

There is another problem with opening up the OCS for oil and gas exploration.  Even though the President suggests this is a short term plan.  The short term plan seems to be counter to the Administrations clean energy platform and to combating global energy. As President Obama said last years United Nations Conference on Climate Change:

Now, as the world’s largest economy and as the world’s second largest emitter, America bears our responsibility to address climate change, and we intend to meet that responsibility.  That’s why we’ve renewed our leadership within international climate change negotiations.  That’s why we’ve worked with other nations to phase out fossil fuel subsidies.  That’s why we’ve taken bold action at home — by making historic investments in renewable energy; by putting our people to work increasing efficiency in our homes and buildings; and by pursuing comprehensive legislation to transform to a clean energy economy.

I am also very concern that this new push for more oil and gas signals a retreat from or at least will impact our Country’s move toward renewable energy and to away from a commitment to combat climate change.  How are we going to stop incentivizing oil and gas when we open up more areas for drilling?  Are we going to lease them out for their full value?  How are we going to grow the green energy while telling the world that oil and gas is here to stay?  How do we credibly tell the world that we will lead it in solving climate change, when we cannot let go of the past.

Opening up the OCS for more oil and gas exploration is the wrong policy for many reasons.

Was 2009 the year for renewables in NJ?

Written by Mike Pisauro on February 10th, 2010 in Green Building, land use, legislation, Renewable Energy, Solar, Uncategorized, Wind | No Comments »

A lot has happen since I wrote Renewables and Land Use Law in 2008.  2009 may be one of the best years for renewable energy in New Jersey.  Several laws were passed 2009-2010 in NJ that help move the acceptance and adoption of renewable energy in NJ.

There were two very significant bills.  The first modifies NJ land use laws.  P.L. 2009 C. 146 adds the definition of inherently beneficial to the land use statutes.  Up to now what was inherently beneficial was determined on a case by case basis and only after litigation.  The recently enacted law defines inherently beneficial (for the first time) to include “wind, solar or photovoltaic energy facility or structure.”  Being inherently beneficial is very useful for land use applicants who are seeking a D variance from their local land use board.  D variances are the toughest to get and require the applicant to show that the positive aspects of the project outweigh the negatives.  If your proposed project is inherently beneficial you automatically meet the positive requirements of a D variance.  What is left is showing that the proposal does not create a substantial detriment to the public good and will not substantially impact the zone plan and township ordinances.

Another law that will have far ranging implications is P.L. 2009 c. 244.  This law goes even farther than P.L. 2009 c. 146.  In essence this bill requires municipalities to allow small wind turbines within their borders.  The bill provides that municipalities “shall not unreasonably limit such limitations or unreasonably hinder the performance of such installations.”  Under the bill municipalities cannot enact ordinances that unduly restrict the installation of renewable energy.  A small wind energy system or turbine is one which is primarily for onsite consumption of electricity.  It is considered an unreasonable for a municipality to:

  • Prohibit small energy systems in all districts within the municipality
  • Restricting tower height by applying generic height ordinances that does not make allowance for tower heights.
  • Requiring setbacks more than 150 percent of the system height.
  • Setting noise level lower than 55 decibels.
  • Setting electrical or structural criteria that exceed the applicable UCC standards

This is a very important step forward for wind turbines in NJ.  It will not remove all barriers to the installation of wind turbines as a town could require a setback of 150% which many property owners may not meet.  Given that the towers for small wind energy systems are rated for hurricane winds, the setbacks really are overly restrictive.

P.L. 2009 c. 35 provides that on industrial property of 20 or more acres solar and wind systems are permitted uses.  This would prevent municipalities from requiring variances for the installation of these systems.  An applicant would only need a construction permit to install these kinds of systems.

P.L. 2009 c. 33 requires developers of new residential housing to offer as an option to their purchaser’s solar energy systems.  This requirement applies developments of 25 units or more.  The systems also must be covered under the New Home Warranty and Builder’s Registration Act.  Interesting the Legislature set out a section of findings prefacing this law.  The State has declared that, “[t]hat the installation of even small scale solar energy systems will combat global warming and reduce the nation’s dependence on foreign energy sources, resulting in a significant environment benefit.”  I would suggest a similar finding can be found for wind in the State of NJ.

P.L. 2009 c. 289 revises our electricity generation laws.  In particular it increases the amount of electricity that utilities selling power in NJ have to get from solar sources.  The law also changes the requirement from a percentage of total electricity generation to absolute numbers.  Under this law the State of NJ is requiring that utilities supply either directly or purchase from other generators the following gigawatt hours of electricity generated from solar systems:

2011 306 Gwhrs 2019 1,858 Gwhrs
2012 442 Gwhrs 2020 2,164 Gwhrs
2013 596 Gwhrs 2021 2,518 Gwhrs
2014 772 Gwhrs 2022 2,928 Gwhrs
2015 965 Gwhrs 2023 3,433 Gwhrs
2016 1,150 Gwhrs 2024 3,989 Gwhrs
2017 1,357 Gwhrs 2025 4,160 Gwhrs
2018 1,591 Gwhrs 2026 5,316 Gwhrs

After 2026 the State will still require at least 5,316 Gwhrs of electricity from solar sources.  The law allows for the number of Gwhrs to be increased.

The law also permits that the above schedule can be increased by 20% if in the three preceding years there were enough or excess SRECs to meet the requirements and the average price of SRECs in the same three years decreased.

The State changed the system from requiring a percentage of energy to absolute numbers because of the intent in the Energy Master Plan to reduce overall all energy demand.  If the RPS requirements remained as a percentage the State would start generating less electricity from renewable energy sources the more successful the EMP was.

The next two are not renewable energy bills but also fairly significant for the energy usage of NJ.

P.L. 2009 c. 106 requires the Department of Community Affairs to develop new enhanced energy codes.  These codes are based upon the projected energy costs for the next tens years.  The enhanced energy codes shall be designed to increase energy conservation for buildings.  In 2006 buildings accounted for 39% of the energy use in the United States.  So by enhancing the energy efficiency of new or renovated buildings will go a long way to reducing greenhouse gas emissions and overall energy usage.  The new codes are to be set so any increased in cost to meet the new codes will be paid back within seven years from the reduced energy usage.

Lastly, P.L. 2009 c. 33 allows BPU to give grant money to install energy efficiency, renewable energy, reduction in peak demand, and reduction in energy usage for commercial and industrial business with high peak demand.  As industry is one of the largest users of energy in NJ some have argued that more money should be spent to help them reduce their energy demands and thus help NJ reduce its consumption of fossil fuels.  I am frankly not that convinced that industry should be given this kind of hand out given that many of these energy efficiency, renewable energy systems will pay the company back in a relatively short time frame.

All of these new laws move renewable energy in NJ forward. They make it less expensive to buy, obtain permits and install.  The laws improve the market for renewable energy by creating a greater demand.  While NJ has moved forward we still have some road to travel.  There are several bills being considered for the 2010-2011 legislative session that will again impact NJ’s energy and environmental future.  I will look at these bills in a future post.

Other related posts:

NJ declares wind and solar energy as inherently beneficial
NJ Governor Canditates promote renewable energy, NJ needs more than rhetoric
Governor takes small steps for renewable energy, more needed.
Wind and Solar are ahead of coal in more than ways than one.
Federal RPS has been introduced
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