New Jersey Environmental Lobby Newsletter October-December 2008

Returning from their summer recess, New Jersey Legislators took up a number of issues, including a bill to change the site remediation approval process. Its manufacturing history and a legacy of unregulated dumping sites have left New Jersey with thousands of toxic properties. Leachate from these sites can pollute ground and surface waters. Vapors and contaminated soil are threats to the health of occupants at or near those sites.

From the beginning of the struggle to clean up toxic waste, including then- Congressman Florio's authorship of the Superfund law, New Jersey was a model for cleanup strategies. The severity of contamination, combined with cuts to Department of Environmental Protection (DEP) budgets, and officials who put developers' interests above the public health, eroded DEP's ability to ensure that remediations were effective and timely.

In the past few years notorious cases, including sites that "slipped through the cracks" and were redeveloped without cleanup, brought the realization that the planning and approval process not only was failing to protect the public but also was a barrier to redevelopment.

In June 2008, Senate and Assembly bills (S1897/A2962) were introduced to remedy the problem. Subsequently, DEP provided its own version of a bill, intended to reduce the backlog of remediation plans awaiting review and reduce uncertainty for property owners and financiers of projects.

Role of "Licensed Site Professionals"- The DEP proposal is modeled after one that has been in place in Massachusetts. It relies on "licensed site professionals" (LSPs) to develop remediation plans, monitor and review the execution of the plans, review the completed projects, and determine that the cleanups comply with New Jersey laws and regulations. A project LSP would be selected and paid by the responsible party. An LSP must certify a remediation plan submission and that it has managed, supervised or performed the work. An LSP must not have been convicted of an environmental crime, or similar or related criminal offense. An LSP license would be valid for three years.

An LSP license could be suspended pending a hearing if the Board finds that the conduct of the LSP is so "egregious" as to pose an imminent threat. LSPs would be subject to random audits and to a code of ethics. DEP's position is that the threat of audits and the code will be sufficient to avoid conflicts of interest or undue influence.

The bill is designed to reduce the impact of deficient applications, thereby reducing project delays and increasing DEP staff productivity. Strict timelines and procedures would govern the return of deficient applications and the submission of revised applications.

Right now, there is no certification or licensing program for "licensed site professionals." DEP proposes that LSPs be licensed by an eleven-member Board composed of: the DEP Commissioner; four LSPs, two representatives of environmental organizations, one member of the NJ Business & Industry Association; a representative of the State Chamber of Commerce, one State geologist, and a member of academia.

NJEL believes there are several shortcomings with the LSP concept as proposed. Including the business associations, that will be represented on the Board, the remediation industry will account for a majority of the seats. There are requirements for education in scientific or technical fields and for levels of experience, but no licensing examination is planned. Licensing and oversight by a majority of individuals with an interest in the same industry is problematic, particularly when many of the terms used to describe levels of responsibility are not clearly defined. Among those, an LSP must certify that it has performed, managed, or supervised the execution of the remediation plan but the extent of these is not defined. Because projects may involve numerous persons and tasks and considerable data, the State must be assured of accountability. We need to be assured that omissions of employees or subcontractors are not excuses for the failure of a remediation plan.

Currently, DEP issues a "No Further Action" letter (NFA) to close a remediation case. DEP will no longer issue NFAs. In their place, LSPs will certify that remediation is complete. In effect, a private entity, the LSP, is acting on behalf of the State. In the event that a site is improperly certified and additional clean up in the future, it is not clear how such a case would be resolved.

There are sites for which DEP would retain direct oversight. These include the following:

- a property where the Remediation Plan (RP) has a history of non-compliance, that is, two or more enforcement actions within the last 5 years;
- a property where the RP has failed to meet remediation time frames or orders;
- failure to complete the remedial investigation of the entire site within 10 years
and/or within 2 years of the Site Remediation Act;
- the site contains chromate chemical production waste;
- there are multiple ecologically sensitive resources that have been damaged;
- the site contributes PCB, mercury, arsenic or dioxin to surface water.

DEP may retain authority to require particular measures at sites such as daycare centers, schools, and properties with fewer than five residences. New residential construction, and childcare and schools require complete cleanup, except that DEP can approve less than complete cleanup if the remedy is "protective." We object to this subjective standard because it is an opportunity for decisions to be based not on health consequences, but on developers' costs. As the "Kiddie Kollege" mercury contamination showed, the legacy of a property may be overlooked as ownership and use changes over the years. A precautionary principle should be applied and there should be no compromise regarding the risks to vulnerable occupants.

Audits - There will be random audits of 10% of LSPs every year. The bill provides that there may be an audit of documents if one or more of 17 criteria are met. The Massachusetts experience resulted in what we consider a significant percentage of audit exceptions. Partly for that reason, we believe if one or more of the 17 criteria are met that there must be an audit, and that audit should not be limited to documents submitted by the LSP. NJDEP should have the power to do its own independent testing. DEP has only six months from the receipt of the LSP's formal determination that the remediation is complete to notify the LSP that the site will be audited. Timely project completions are desirable, but an effective program will require a serious commitment to auditing.

Since Massachusetts is the model for DEP's proposal, that state's experience must be considered. Of 68 "Level 3" audits (the most detailed) completed in the fourth quarter of 2007, 56 had one or more violations. In 2006, half of the projects certified by LSPs required some additional remedial action. This in itself is an indication of what could happen without effective oversight.

Other - DEP is proposing to reduce the statute of limitations (SOL) for natural resource damages from 5 to 3 years, making it consistent with the current SOL for cost. We object to this rollback. NJDEP also will be responsible for adopting minimum remediation standards. The language that standards should be set so that "harm to public health and safety is minimized to acceptable levels" is disturbing. Exactly what is an "acceptable" level of harm to humans, to children? NJEL's comment on the bill will reflect our belief that the Precautionary Principle should be followed. The protection of the health of New Jersey's residents requires that precaution, not expediency, drive decisions about standards.

The Highlands Regional Master Plan (RMP) was adopted by the Highlands Council at its meeting of July 17. As reported in NJEL's Summer 2008 newsletter, the Highlands Coalition (composed of member organizations and individuals) criticized the plan for its failure to protect the integrity of critical water supplies. Some of the most egregious provisions of the draft RMP include allowing development in areas where there is already a deficit in water reserves; inadequate controls over subdivision size and placement at the expense of agricultural activities and preserved areas; and inadequate standards for nitrate levels, which could pollute the wells and surface waters that are sources of drinking water for millions of New Jersey residents.

The Highlands Coalition offered a number of amendments that would have addressed the shortcomings in the RMP. When the Council failed to adopt those amendments, the Coalition asked Governor Corzine to veto the minutes of the meeting at which the Council adopted the RMP. A veto by the Governor would have effectively overturned adoption of the plan as drafted. Instead of vetoing the entire RMP, Governor Corzine issued an Executive Order that imposes a number of conditions on development proposals. One is intended to prevent sprawl from developments that are portrayed as "clustered" but are actually isolated subdivisions.

Presumably this is in response to objections to the excessive allowance of nitrate releases near wells used for drinking water in those developments. In making adjustments to the Land Use Capability Map, the Council must implement a public review and comment process for modifications to Highlands Open Water buffer standards and designation of redevelopment areas. An area of particular concern to the Coalition is the existing water deficits in areas of proposed development. The order calls for DEP to adopt and enforce "strict" standards for water deficit mitigation projects in the Highlands. It also prohibits water allocation permits or approval of Water Quality Management Plans in sensitive areas until a Municipal Water Use and Conservation Management Plan has been approved by the Highlands Council and has been fully implemented.

Unfortunately, the Executive Order leaves wide latitude for DEP to make decisions that could allow inappropriate development in sensitive areas and result in degradation of New Jersey's drinking water sources. Right now, a 396-unit residential development, Hamptons at Pohatcong, is planned for a National Heritage Priority Site. Besides being a habitat for several endangered grassland bird species, the project will draw water from Phillipsburg-area wells that are already in deficit. The developer, EAI Investments, has already brought suit to overturn not only Governor Corzine's Executive Order, but also an array of Highlands protections.

NJEL will continue to support the efforts of the Highlands Coalition and the protective decisions of the Highlands Council. Individual NJEL members can help by responding to the Action Alerts of the Highlands Coalition. NJDEP will hold a public hearing on the development proposal on December 3. Learn more about this issue and what you can do, without even leaving home, by visiting the Coalition's web site, www.njhighlandscoalition.org

Note: NJEL is proud to remind you that Julia Somers, the Executive Director of the NJ Highlands Coalition, is a member of the Board of Directors of NJEL.

On August 7, as reported in NJEL's previous newsletter, the Senate and Assembly Environment Committees held a joint hearing about the construction of a liquefied natural gas (LNG) terminal in waters off New Jersey. There have been several proposals for terminals, each by different entities and now one has now been postponed by its developer. On October 8, BP Energy announced a two-year suspension of its plan to build a $700 million facility off Logan Township. BP's plan included a 2200 foot pier in the Delaware River.

BP spokesman Tom Mueller cited "global market conditions" as the reason for the decision. The price of natural gas is now at a multi-year low.

Mr. Mueller said that the company will retain ownership of the riverside land that was part of the project plan and will "look at conditions down the road." He expressed BP's confidence that New Jersey would eventually require additional LNG capacity and that BP would "position" itself to provide it.

Factoid for thought: Russia is the world's largest exporter of natural gas. It is the dominant supplier for Europe. Even some gas that is not produced in Russia is transported through pipelines that it controls. In the past, Russia has cut off or threatened to cut off natural gas supplies during disputes with other countries, including its former satellites.

At press time, two all-terrain vehicle (ATV) bills are moving through the NJ legislature. One is enforcement legislation that environmental groups have been seeking for many years; the second would require the DEP to identify a site for an off-road vehicle (ORV) park.

Both bills, the enforcement legislation (A823) and the ORV park bill (A2796), have been reported out of their respective Assembly committees unanimously and await a full Assembly vote, which is expected in December. On the Senate side, the enforcement bill (S2055) has been referred to the Transportation committee and awaits a hearing. The New York-New Jersey Trail Conference (NY/NJTC) and its partners are working diligently to get this bill on the hearing schedule in late 2008 or early 2009. The ORV park bill (S1059) awaits a hearing in the Senate Environment committee.

Supporters of the ATV enforcement legislation remain optimistic about its prospects for success. According to Brenda Holzinger, EEF President, NJEL Board Member, and NJ Regional Representative for the NY-NJ Trail Conference, "Member support via the electronic action alerts in November were a tremendous help to us when we talked to individual legislators because they were hearing from their constituents that the ATV enforcement legislation is important. That had an immediate impact on how the legislators viewed the bill. However, in order to achieve success by the end of the session in June we need even more member support for our action alerts as we push the enforcement legislation through the committees and the full Assembly and Senate."

Please visit the action alert (http://www.capwiz.com/nynjtc/home/nj) site and let the Assembly and Senate know that you support ATV enforcement legislation.
For up to date information about the status of the bills, check the NY-NJ Trail Conference ATV website: http://www. nynjtc.org/issues/NJATV.html. Contact Brenda Holzinger at holzinger@nynjtc.org or cell phone (973-303-3538) with questions or for further information.

ATV Damage to Public Lands - In its Winter 2008 newsletter, Public Employees for Environmental Responsibility (PEER) reported on a survey of Forest Service and Bureau of Land Management rangers in five Southwestern states. Nine out of ten rangers reported that "off-road vehicles present a significant law enforcement problem" and that reckless users are destroying fragile natural resources. These resources are owned by the taxpayers and frequently maintained and repaired not by Federal employees, but by dedicated, and increasingly frustrated, volunteers. Larger and larger ATV touring groups are a particular threat to the deserts. One of those, the Sonoran, is considered the most biologically rich and diverse desert on the planet.

The plastic bag once seen as a wonderful convenience has become an environmental nightmare. Bags waste millions of gallons of fossil fuels in their manufacture, sully our urban and rural landscapes and are a significant threat to the quality of our drinking water. They have been found in the stomachs of dead marine mammals.

If New Jersey were to follow the lead of the city of San Francisco, the country of Ireland, and other jurisdictions, it would levy a fee per plastic bag given "free" by retail establishments. A fee of just 10 cents per bag could generate as as much as $750,000 of easily collected money per week for at least one full year. It could be easily collected with the sales tax.

Wise shoppers would soon eliminate this fee from their budgets by purchasing sturdy reusable bags and refusing the wasteful, expensive "free" plastic bags. Many businesses and organizations are already giving away free reusable bags as part of promotions. and a number of supermarkets sell reusable bags for about a dollar each. The positive short and long term benefits of levying a fee greatly outweigh any perceived inconvenience, especially since this levy is so easily and legally avoided by the smart shopper. Legislators should enact this proposal early in 2009, putting NJ in the forefront of this environmental issue just when doing so has the greatest benefits.

Editor's Note: The worldwide manufacture of plastic bags consumes 12 million barrels of oil annually. There are 62 gallons of oil in a barrel.

Meanwhile, back at the State House . . . New Jersey's legislators are not unaware of the negative impacts of throw-away plastic bags. There is a long list of bills that were introduced in the Assembly. As of this publication, none has been heard in committee.

A2921, sponsored by Assemblywoman Nilsa Cruz-Perez, sets up a schedule of reducing use of plastic bags by retailers: 25% by 2009, 50% by 2010, 75% by 2011, and 100% by 2012. It would apply to stores with 1000 or more square feet of retail space.

A2730, sponsored by Assemblywoman Linda Stender, requires DEP to study the environmental impacts of the bags.

A2545, by Assemblymen John Rooney & Daniel VanPelt, requires stores with 5,000 square feet or more of retail space, and chain stores, to set up in-store collection of plastic bags. It specifically requires that stores recycle them.

A1641, by Assemblyman McKeon. By 11/30/2010 stores with at least 1,000 square feet of retail space must reduce their use of non-compostable bags by 50%. By 11/30/2012 all of their bags must be compostable.

A1395, by Assemblymen Herb Conaway and Jack Conners, requires in-store but only for stores with at least 10,000 square feet of retail space. By 12/31/09 stores must reduce the use of plastic bags by 50% and stop using them completely by 12/31/2010.

A legislative effort is underway that could effectively close some of New Jersey's public lands to walkers and hikers from October until January.

The legislation currently in play would authorize bow and arrow deer hunting on Sundays in Wildlife Management Areas and private property in New Jersey. If approved by the NJ Legislature, this change in policy could result in complete closures on lands that already have extremely restricted hiking opportunities during hunting season. For example, the Newark Watershed lands are open to hikers only on Sundays from early October until early January, with other hunting related restrictions throughout the year. It seems likely that these Watershed lands would be closed to hiking on Sundays also if bow and arrow deer hunting on Sundays becomes legal.

The Senate legislation, S802, was voted out of the Environment Committee 5-1 and overwhelmingly approved by the full Senate (32-6-2) in October. Its counterpart in the Assembly, A1669, must be heard in the Environment and Natural Resources Committee before it can move to the full Assembly for a vote. The New York-New Jersey Trail Conference, the American Humane Society, the Sierra Club and a number of other groups have joined together to fight this legislation. Please send an action alert (http://www.capwiz.com/nynjtc/issues/alert/?alertid= 12152481& PROCESS=Take+Action) to let members of the NJ Assembly know that Sundays should remain off-limits to deer hunting so that all members of the tax-paying public can enjoy New Jersey's public lands at least one day a week during New Jersey's beautiful fall and early winter seasons.

At the November 10 meeting of the Bordentown City Commissioners, the City was presented with the NJEL/EEF GREEN TOWN USA award. The City satisfied the criteria established for the award, including requirements related to the master plan, conservation, protection of water resources, low emission vehicles, and recycling.
While there are a number of environmentally-themed awards given to municipalities, most are for specific accomplishments or policies, such as tree stewardship, non-toxic pest and landscape management, and land use planning.

The Green Town Award was initiated to recognize towns that have adopted an array of such environmentally responsible policies and practices. Rather than simply meeting the requirements of state regulations and addressing environmental issues with isolated decisions, a Green Town recognizes the relationship of the environment to property values, business activity, town history, the health of its citizens, and long term sustainability.

In the last six years, Bordentown City's Planning Board and Environmental Commission have produced a remarkable number of planning documents, including a Master Plan Reexamination Report (2002); Land Use Element (2004); Open Space Plan, Storm water Management Element, and Utilities Element (2005); Environmental Resource Inventory, Bicycle & Pedestrian Circulation Element, and Housing & Fair Share Element (2006); and Conservation Element (2007). The City recently completed a full scale revision of its land use ordinance. Now undergoing public comment, the proposed ordinance reflects sustainable development and emphasizes conservation of open space.

In reviewing Bordentown's application, the review team was impressed with the programs sponsored by the Environmental Commission and with the Commission's outreach to the public. An online newsletter keeps residents informed while conserving resources. The City sponsors numerous free events like nature walks, as well as programs to educate its residents on a wide range of environmental topics, with a particular emphasis on energy conservation.

Bordentown is a walkable town with a downtown retail with viable businesses, including restaurants offering everything from ice cream and simple lunches to gourmet meals. A native plant demonstration garden was installed at the public library and programs like the recent presentation on the red knot and horse shoe crabs address not just the local environment, but the planet's biodiversity. Many of these programs are presented in the context of Bordentown's history as a town settled in the colonial period and home to historic figures including Francis Hopkinson, a signer of the Declaration of Independence, and Clara Barton. Bordentown has an active Historical Society and frequent community events that celebrate the town, its history, and its natural environment.

NJEL and EEF congratulate the City of Bordentown, Burlington County, as it joins the Townships of West Windsor and Hamilton (Mercer County) and Cranford (Union County) as Green Towns. We also recognize the efforts of Mayor John Collom, Environmental Commission Chairman Mike Hunninghake and Planning Board Chairman Sam Surtees to lead Bordentown to its status as a truly Green Town! To learn more about Bordentown's environment, visit www.bcec.us.

At The Federal Level, Threat to the Strength of the Endangered Species Act - by Anne Poole

The Federal Government has proposed new regulations that would severely restrict federal agencies' obligation to consult with the U. S. Fish & Wildlife Service (FWS) on proposed projects. This is an attempt to circumvent the Endangered Species Act (ESA), which special interests have been lobbying against for a dozen years. Since the majority in Congress has repeatedly refused to weaken the Act, opponents are trying to do so by reducing applicability. Currently, if an agency proposes a project that may impact an endangered or threatened species, that agency has to initiate consultation with either FWS or the National Marine Fisheries Service (NMFS). FWS has responsibility for land and freshwater plants and animals; NMFS has responsibility for marine life.

The New Jersey Audubon Society took the lead on protesting the changes. NJEL signed on to a letter written on NJAS's behalf by the Eastern Environmental Law Center, extensively detailing NJAS's objections. Some of those objections are summarized below.

The proposed regulations would eliminate most required consultation and give agencies the power to decide whether their desired projects jeopardize species. This is the worst kind of conflict of interest. The FWS rationalizes that agencies will "err on the side of protecting listed species" when judging adverse effects. Is it realistic to expect that a Federal agency will voluntarily abandon a project if it can avoid compliance with habitat protections? Experience over the 35 years of the ESA shows just the opposite. NJAS's comment letter describes the attempt in 2005 by the Bush administration to "streamline" consultations that supported the National Fire Plan. Presented as a way to facilitate fire control, the Plan actually facilitated logging on Federal lands without regard to the ESA. The plan allowed the U. S. Fire Service and the Bureau of Land Management to "self-consult." A subsequent Congressionally mandated review showed that over 60% of the projects conducted under the National Fire Plan violated the ESA.

The Law Center cited a 2004 GAO report that found that agencies regarded consultations with FWS "burdensome" because they interfered with project plans. However, over 90 percent of ESA consultations end at the "informal" level, where projects go forward after an acceptable modification is made to accommodate a species. The enemies of the ESA have clearly overstated the "burdens."

A particularly dangerous provision is a 60-day deadline for FWS to respond to an agency's request for consultation. If the deadline is not met, the project will go forward regardless of its impact. Under the rule, even a project that could lead to the extinction of a species could proceed. Considering the lack of funding that hampers the FWS's consultation process, the deadline is a certain tool for subverting the intent of the ESA. Projects submitted to the FWS and the NMFS are not reviewed whimsically; they are reviewed by expert biologists. Protection of species, biodiversity, and ecological balance should not be sacrificed for special interests.

NJEL is grateful for the generous contribution made by members Frank and Margie Gatti in memory of Frank's mother, Marie T. Gatti. A lifelong resident of Burlington County, Marie lived in Delran for most of her life. She was a kind and gentle person who loved the peace and beauty of the outdoors. She is survived by her husband Francis C. Gatti, Sr. , her sons Robert and Frank, their spouses, and grandchildren and great-grandchildren who loved her.

We also gratefully acknowledge the contribution made by member Glenn Malsbury in memory of Sophie C.(Chick) O'Brien, mother of NJEL President Anne Poole. Born in Newark, Chick lived most of her adult life in the Pinelands of Pemberton Township, Burlington County. She enjoyed travelling to other states, to Canada, and to Europe with her husband Jim. No matter where she went, her usual comment upon her return was, "I never thought I'd say it, but I was glad to get back to New Jersey!"

REMEMBER!

The New Jersey Environmental Lobby is your voice in Trenton. We are an independent, nonpartisan, nonprofit organization focused on the preservation and protection of a healthy environment for all our citizens. We need your support! JOIN NJEL and help us change the laws!







	President: Anne Poole Legislative Director: Michael Pisauro


	Volume 37 No. 4

	October - December 2008

	Site Remediation Bill - *by Michael L. Pisauro* New Jersey Legislators took up a number of issues, including a bill to change the site remediation approval process. Read More ... Highlands Regional Master Plan - The Highlands Regional Master Plan (RMP) was adopted by the Highlands Council at its meeting of July 17. As reported in NJEL's Summer 2008 newsletter, the Highlands Coalition (composed of member organizations and individuals) criticized the plan for its failure to protect the integrity of critical water supplies. Read More ... One LNG Terminal Proposal Delayed - On August 7, as reported in NJEL's previous newsletter, the Senate and Assembly Environment Committees held a joint hearing about the construction of a liquefied natural gas (LNG) terminal in waters off New Jersey. Read More ... All Terrain Vehicle Legislation Continues Forward Momentum - At press time, two all-terrain vehicle (ATV) bills are moving through the NJ legislature. One is enforcement legislation that environmental groups have been seeking for many years. Read More ... Bag The Bag *- Guest Editorial by Gene Fox* The plastic bag once seen as a wonderful convenience has become an environmental nightmare. Bags waste millions of gallons of fossil fuels in their manufacture and sully our urban and rural landscapes. Read More ... Legislation in Play for Sunday Deer Hunting in NJ - *by Brenda Holzinger* A legislative effort is underway that could effectively close some of New Jersey's public lands to walkers and hikers from October until January. Read More ... The City of Bordentown Is New Jersey's Newest "Green Town" - In August EEF installed Dr. Michael Taylor as a Trustee. Dr. Taylor is the Director o Read More ... At The Federal Level, Threat to the Strength of the Endangered Species Act - *- by Anne Poole* The Federal Government has proposed new regulations that would severely restrict federal agencies' obligation to consult with the U. S. Fish & Wildlife Service (FWS) on proposed projects. This is an attempt to circumvent the Endangered Species Act. Read More ... In Memory - NJEL is grateful for the generous contribution made by members Frank and Margie Gatti in memory of Frank's mother, Marie T. Gatti. Read More ... Site Remediation Bill - by *Michael L. Pisauro* Returning from their summer recess, New Jersey Legislators took up a number of issues, including a bill to change the site remediation approval process. Its manufacturing history and a legacy of unregulated dumping sites have left New Jersey with thousands of toxic properties. Leachate from these sites can pollute ground and surface waters. Vapors and contaminated soil are threats to the health of occupants at or near those sites. From the beginning of the struggle to clean up toxic waste, including then- Congressman Florio's authorship of the Superfund law, New Jersey was a model for cleanup strategies. The severity of contamination, combined with cuts to Department of Environmental Protection (DEP) budgets, and officials who put developers' interests above the public health, eroded DEP's ability to ensure that remediations were effective and timely. In the past few years notorious cases, including sites that "slipped through the cracks" and were redeveloped without cleanup, brought the realization that the planning and approval process not only was failing to protect the public but also was a barrier to redevelopment. In June 2008, Senate and Assembly bills (S1897/A2962) were introduced to remedy the problem. Subsequently, DEP provided its own version of a bill, intended to reduce the backlog of remediation plans awaiting review and reduce uncertainty for property owners and financiers of projects. Role of "Licensed Site Professionals"- The DEP proposal is modeled after one that has been in place in Massachusetts. It relies on "licensed site professionals" (LSPs) to develop remediation plans, monitor and review the execution of the plans, review the completed projects, and determine that the cleanups comply with New Jersey laws and regulations. A project LSP would be selected and paid by the responsible party. An LSP must certify a remediation plan submission and that it has managed, supervised or performed the work. An LSP must not have been convicted of an environmental crime, or similar or related criminal offense. An LSP license would be valid for three years. An LSP license could be suspended pending a hearing if the Board finds that the conduct of the LSP is so "egregious" as to pose an imminent threat. LSPs would be subject to random audits and to a code of ethics. DEP's position is that the threat of audits and the code will be sufficient to avoid conflicts of interest or undue influence. The bill is designed to reduce the impact of deficient applications, thereby reducing project delays and increasing DEP staff productivity. Strict timelines and procedures would govern the return of deficient applications and the submission of revised applications. Right now, there is no certification or licensing program for "licensed site professionals." DEP proposes that LSPs be licensed by an eleven-member Board composed of: the DEP Commissioner; four LSPs, two representatives of environmental organizations, one member of the NJ Business & Industry Association; a representative of the State Chamber of Commerce, one State geologist, and a member of academia. NJEL believes there are several shortcomings with the LSP concept as proposed. Including the business associations, that will be represented on the Board, the remediation industry will account for a majority of the seats. There are requirements for education in scientific or technical fields and for levels of experience, but no licensing examination is planned. Licensing and oversight by a majority of individuals with an interest in the same industry is problematic, particularly when many of the terms used to describe levels of responsibility are not clearly defined. Among those, an LSP must certify that it has performed, managed, or supervised the execution of the remediation plan but the extent of these is not defined. Because projects may involve numerous persons and tasks and considerable data, the State must be assured of accountability. We need to be assured that omissions of employees or subcontractors are not excuses for the failure of a remediation plan. Currently, DEP issues a "No Further Action" letter (NFA) to close a remediation case. DEP will no longer issue NFAs. In their place, LSPs will certify that remediation is complete. In effect, a private entity, the LSP, is acting on behalf of the State. In the event that a site is improperly certified and additional clean up in the future, it is not clear how such a case would be resolved. There are sites for which DEP would retain direct oversight. These include the following: - a property where the Remediation Plan (RP) has a history of non-compliance, that is, two or more enforcement actions within the last 5 years; - a property where the RP has failed to meet remediation time frames or orders; - failure to complete the remedial investigation of the entire site within 10 years and/or within 2 years of the Site Remediation Act; - the site contains chromate chemical production waste; - there are multiple ecologically sensitive resources that have been damaged; - the site contributes PCB, mercury, arsenic or dioxin to surface water. DEP may retain authority to require particular measures at sites such as daycare centers, schools, and properties with fewer than five residences. New residential construction, and childcare and schools require complete cleanup, except that DEP can approve less than complete cleanup if the remedy is "protective." We object to this subjective standard because it is an opportunity for decisions to be based not on health consequences, but on developers' costs. As the "Kiddie Kollege" mercury contamination showed, the legacy of a property may be overlooked as ownership and use changes over the years. A precautionary principle should be applied and there should be no compromise regarding the risks to vulnerable occupants. Audits - There will be random audits of 10% of LSPs every year. The bill provides that there may be an audit of documents if one or more of 17 criteria are met. The Massachusetts experience resulted in what we consider a significant percentage of audit exceptions. Partly for that reason, we believe if one or more of the 17 criteria are met that there must be an audit, and that audit should not be limited to documents submitted by the LSP. NJDEP should have the power to do its own independent testing. DEP has only six months from the receipt of the LSP's formal determination that the remediation is complete to notify the LSP that the site will be audited. Timely project completions are desirable, but an effective program will require a serious commitment to auditing. Since Massachusetts is the model for DEP's proposal, that state's experience must be considered. Of 68 "Level 3" audits (the most detailed) completed in the fourth quarter of 2007, 56 had one or more violations. In 2006, half of the projects certified by LSPs required some additional remedial action. This in itself is an indication of what could happen without effective oversight. Other - DEP is proposing to reduce the statute of limitations (SOL) for natural resource damages from 5 to 3 years, making it consistent with the current SOL for cost. We object to this rollback. NJDEP also will be responsible for adopting minimum remediation standards. The language that standards should be set so that "harm to public health and safety is minimized to acceptable levels" is disturbing. Exactly what is an "acceptable" level of harm to humans, to children? NJEL's comment on the bill will reflect our belief that the Precautionary Principle should be followed. The protection of the health of New Jersey's residents requires that precaution, not expediency, drive decisions about standards. Highlands Regional Master Plan - The Highlands Regional Master Plan (RMP) was adopted by the Highlands Council at its meeting of July 17. As reported in NJEL's Summer 2008 newsletter, the Highlands Coalition (composed of member organizations and individuals) criticized the plan for its failure to protect the integrity of critical water supplies. Some of the most egregious provisions of the draft RMP include allowing development in areas where there is already a deficit in water reserves; inadequate controls over subdivision size and placement at the expense of agricultural activities and preserved areas; and inadequate standards for nitrate levels, which could pollute the wells and surface waters that are sources of drinking water for millions of New Jersey residents. The Highlands Coalition offered a number of amendments that would have addressed the shortcomings in the RMP. When the Council failed to adopt those amendments, the Coalition asked Governor Corzine to veto the minutes of the meeting at which the Council adopted the RMP. A veto by the Governor would have effectively overturned adoption of the plan as drafted. Instead of vetoing the entire RMP, Governor Corzine issued an Executive Order that imposes a number of conditions on development proposals. One is intended to prevent sprawl from developments that are portrayed as "clustered" but are actually isolated subdivisions. Presumably this is in response to objections to the excessive allowance of nitrate releases near wells used for drinking water in those developments. In making adjustments to the Land Use Capability Map, the Council must implement a public review and comment process for modifications to Highlands Open Water buffer standards and designation of redevelopment areas. An area of particular concern to the Coalition is the existing water deficits in areas of proposed development. The order calls for DEP to adopt and enforce "strict" standards for water deficit mitigation projects in the Highlands. It also prohibits water allocation permits or approval of Water Quality Management Plans in sensitive areas until a Municipal Water Use and Conservation Management Plan has been approved by the Highlands Council and has been fully implemented. Unfortunately, the Executive Order leaves wide latitude for DEP to make decisions that could allow inappropriate development in sensitive areas and result in degradation of New Jersey's drinking water sources. Right now, a 396-unit residential development, Hamptons at Pohatcong, is planned for a National Heritage Priority Site. Besides being a habitat for several endangered grassland bird species, the project will draw water from Phillipsburg-area wells that are already in deficit. The developer, EAI Investments, has already brought suit to overturn not only Governor Corzine's Executive Order, but also an array of Highlands protections. NJEL will continue to support the efforts of the Highlands Coalition and the protective decisions of the Highlands Council. Individual NJEL members can help by responding to the Action Alerts of the Highlands Coalition. NJDEP will hold a public hearing on the development proposal on December 3. Learn more about this issue and what you can do, without even leaving home, by visiting the Coalition's web site, www.njhighlandscoalition.org Note: NJEL is proud to remind you that Julia Somers, the Executive Director of the NJ Highlands Coalition, is a member of the Board of Directors of NJEL. One LNG Terminal Proposal Delayed - On August 7, as reported in NJEL's previous newsletter, the Senate and Assembly Environment Committees held a joint hearing about the construction of a liquefied natural gas (LNG) terminal in waters off New Jersey. There have been several proposals for terminals, each by different entities and now one has now been postponed by its developer. On October 8, BP Energy announced a two-year suspension of its plan to build a $700 million facility off Logan Township. BP's plan included a 2200 foot pier in the Delaware River. BP spokesman Tom Mueller cited "global market conditions" as the reason for the decision. The price of natural gas is now at a multi-year low. Mr. Mueller said that the company will retain ownership of the riverside land that was part of the project plan and will "look at conditions down the road." He expressed BP's confidence that New Jersey would eventually require additional LNG capacity and that BP would "position" itself to provide it. Factoid for thought: Russia is the world's largest exporter of natural gas. It is the dominant supplier for Europe. Even some gas that is not produced in Russia is transported through pipelines that it controls. In the past, Russia has cut off or threatened to cut off natural gas supplies during disputes with other countries, including its former satellites. All Terrain Vehicle Legislation Continues Forward Momentum - At press time, two all-terrain vehicle (ATV) bills are moving through the NJ legislature. One is enforcement legislation that environmental groups have been seeking for many years; the second would require the DEP to identify a site for an off-road vehicle (ORV) park. Both bills, the enforcement legislation (A823) and the ORV park bill (A2796), have been reported out of their respective Assembly committees unanimously and await a full Assembly vote, which is expected in December. On the Senate side, the enforcement bill (S2055) has been referred to the Transportation committee and awaits a hearing. The New York-New Jersey Trail Conference (NY/NJTC) and its partners are working diligently to get this bill on the hearing schedule in late 2008 or early 2009. The ORV park bill (S1059) awaits a hearing in the Senate Environment committee. Supporters of the ATV enforcement legislation remain optimistic about its prospects for success. According to Brenda Holzinger, EEF President, NJEL Board Member, and NJ Regional Representative for the NY-NJ Trail Conference, "Member support via the electronic action alerts in November were a tremendous help to us when we talked to individual legislators because they were hearing from their constituents that the ATV enforcement legislation is important. That had an immediate impact on how the legislators viewed the bill. However, in order to achieve success by the end of the session in June we need even more member support for our action alerts as we push the enforcement legislation through the committees and the full Assembly and Senate." Please visit the action alert (http://www.capwiz.com/nynjtc/home/nj) site and let the Assembly and Senate know that you support ATV enforcement legislation. For up to date information about the status of the bills, check the NY-NJ Trail Conference ATV website: http://www. nynjtc.org/issues/NJATV.html. Contact Brenda Holzinger at holzinger@nynjtc.org or cell phone (973-303-3538) with questions or for further information. ATV Damage to Public Lands - In its Winter 2008 newsletter, Public Employees for Environmental Responsibility (PEER) reported on a survey of Forest Service and Bureau of Land Management rangers in five Southwestern states. Nine out of ten rangers reported that "off-road vehicles present a significant law enforcement problem" and that reckless users are destroying fragile natural resources. These resources are owned by the taxpayers and frequently maintained and repaired not by Federal employees, but by dedicated, and increasingly frustrated, volunteers. Larger and larger ATV touring groups are a particular threat to the deserts. One of those, the Sonoran, is considered the most biologically rich and diverse desert on the planet. Bag The Bag - *Guest Editorial by Gene Fox* The plastic bag once seen as a wonderful convenience has become an environmental nightmare. Bags waste millions of gallons of fossil fuels in their manufacture, sully our urban and rural landscapes and are a significant threat to the quality of our drinking water. They have been found in the stomachs of dead marine mammals. If New Jersey were to follow the lead of the city of San Francisco, the country of Ireland, and other jurisdictions, it would levy a fee per plastic bag given "free" by retail establishments. A fee of just 10 cents per bag could generate as as much as $750,000 of easily collected money per week for at least one full year. It could be easily collected with the sales tax. Wise shoppers would soon eliminate this fee from their budgets by purchasing sturdy reusable bags and refusing the wasteful, expensive "free" plastic bags. Many businesses and organizations are already giving away free reusable bags as part of promotions. and a number of supermarkets sell reusable bags for about a dollar each. The positive short and long term benefits of levying a fee greatly outweigh any perceived inconvenience, especially since this levy is so easily and legally avoided by the smart shopper. Legislators should enact this proposal early in 2009, putting NJ in the forefront of this environmental issue just when doing so has the greatest benefits. Editor's Note: The worldwide manufacture of plastic bags consumes 12 million barrels of oil annually. There are 62 gallons of oil in a barrel. Meanwhile, back at the State House . . . New Jersey's legislators are not unaware of the negative impacts of throw-away plastic bags. There is a long list of bills that were introduced in the Assembly. As of this publication, none has been heard in committee. A2921, sponsored by Assemblywoman Nilsa Cruz-Perez, sets up a schedule of reducing use of plastic bags by retailers: 25% by 2009, 50% by 2010, 75% by 2011, and 100% by 2012. It would apply to stores with 1000 or more square feet of retail space. A2730, sponsored by Assemblywoman Linda Stender, requires DEP to study the environmental impacts of the bags. A2545, by Assemblymen John Rooney & Daniel VanPelt, requires stores with 5,000 square feet or more of retail space, and chain stores, to set up in-store collection of plastic bags. It specifically requires that stores recycle them. A1641, by Assemblyman McKeon. By 11/30/2010 stores with at least 1,000 square feet of retail space must reduce their use of non-compostable bags by 50%. By 11/30/2012 all of their bags must be compostable. A1395, by Assemblymen Herb Conaway and Jack Conners, requires in-store but only for stores with at least 10,000 square feet of retail space. By 12/31/09 stores must reduce the use of plastic bags by 50% and stop using them completely by 12/31/2010. Legislation in Play for Sunday Deer Hunting in NJ - by Brenda Holzinger A legislative effort is underway that could effectively close some of New Jersey's public lands to walkers and hikers from October until January. The legislation currently in play would authorize bow and arrow deer hunting on Sundays in Wildlife Management Areas and private property in New Jersey. If approved by the NJ Legislature, this change in policy could result in complete closures on lands that already have extremely restricted hiking opportunities during hunting season. For example, the Newark Watershed lands are open to hikers only on Sundays from early October until early January, with other hunting related restrictions throughout the year. It seems likely that these Watershed lands would be closed to hiking on Sundays also if bow and arrow deer hunting on Sundays becomes legal. The Senate legislation, S802, was voted out of the Environment Committee 5-1 and overwhelmingly approved by the full Senate (32-6-2) in October. Its counterpart in the Assembly, A1669, must be heard in the Environment and Natural Resources Committee before it can move to the full Assembly for a vote. The New York-New Jersey Trail Conference, the American Humane Society, the Sierra Club and a number of other groups have joined together to fight this legislation. Please send an action alert (http://www.capwiz.com/nynjtc/issues/alert/?alertid= 12152481& PROCESS=Take+Action) to let members of the NJ Assembly know that Sundays should remain off-limits to deer hunting so that all members of the tax-paying public can enjoy New Jersey's public lands at least one day a week during New Jersey's beautiful fall and early winter seasons. The City of Bordentown Is NJ's Newest "Green Town" - At the November 10 meeting of the Bordentown City Commissioners, the City was presented with the NJEL/EEF GREEN TOWN USA award. The City satisfied the criteria established for the award, including requirements related to the master plan, conservation, protection of water resources, low emission vehicles, and recycling. While there are a number of environmentally-themed awards given to municipalities, most are for specific accomplishments or policies, such as tree stewardship, non-toxic pest and landscape management, and land use planning. The Green Town Award was initiated to recognize towns that have adopted an array of such environmentally responsible policies and practices. Rather than simply meeting the requirements of state regulations and addressing environmental issues with isolated decisions, a Green Town recognizes the relationship of the environment to property values, business activity, town history, the health of its citizens, and long term sustainability. In the last six years, Bordentown City's Planning Board and Environmental Commission have produced a remarkable number of planning documents, including a Master Plan Reexamination Report (2002); Land Use Element (2004); Open Space Plan, Storm water Management Element, and Utilities Element (2005); Environmental Resource Inventory, Bicycle & Pedestrian Circulation Element, and Housing & Fair Share Element (2006); and Conservation Element (2007). The City recently completed a full scale revision of its land use ordinance. Now undergoing public comment, the proposed ordinance reflects sustainable development and emphasizes conservation of open space. In reviewing Bordentown's application, the review team was impressed with the programs sponsored by the Environmental Commission and with the Commission's outreach to the public. An online newsletter keeps residents informed while conserving resources. The City sponsors numerous free events like nature walks, as well as programs to educate its residents on a wide range of environmental topics, with a particular emphasis on energy conservation. Bordentown is a walkable town with a downtown retail with viable businesses, including restaurants offering everything from ice cream and simple lunches to gourmet meals. A native plant demonstration garden was installed at the public library and programs like the recent presentation on the red knot and horse shoe crabs address not just the local environment, but the planet's biodiversity. Many of these programs are presented in the context of Bordentown's history as a town settled in the colonial period and home to historic figures including Francis Hopkinson, a signer of the Declaration of Independence, and Clara Barton. Bordentown has an active Historical Society and frequent community events that celebrate the town, its history, and its natural environment. NJEL and EEF congratulate the City of Bordentown, Burlington County, as it joins the Townships of West Windsor and Hamilton (Mercer County) and Cranford (Union County) as Green Towns. We also recognize the efforts of Mayor John Collom, Environmental Commission Chairman Mike Hunninghake and Planning Board Chairman Sam Surtees to lead Bordentown to its status as a truly Green Town! To learn more about Bordentown's environment, visit www.bcec.us. At The Federal Level, Threat to the Strength of the Endangered Species Act *- by Anne Poole* The Federal Government has proposed new regulations that would severely restrict federal agencies' obligation to consult with the U. S. Fish & Wildlife Service (FWS) on proposed projects. This is an attempt to circumvent the Endangered Species Act (ESA), which special interests have been lobbying against for a dozen years. Since the majority in Congress has repeatedly refused to weaken the Act, opponents are trying to do so by reducing applicability. Currently, if an agency proposes a project that may impact an endangered or threatened species, that agency has to initiate consultation with either FWS or the National Marine Fisheries Service (NMFS). FWS has responsibility for land and freshwater plants and animals; NMFS has responsibility for marine life. The New Jersey Audubon Society took the lead on protesting the changes. NJEL signed on to a letter written on NJAS's behalf by the Eastern Environmental Law Center, extensively detailing NJAS's objections. Some of those objections are summarized below. The proposed regulations would eliminate most required consultation and give agencies the power to decide whether their desired projects jeopardize species. This is the worst kind of conflict of interest. The FWS rationalizes that agencies will "err on the side of protecting listed species" when judging adverse effects. Is it realistic to expect that a Federal agency will voluntarily abandon a project if it can avoid compliance with habitat protections? Experience over the 35 years of the ESA shows just the opposite. NJAS's comment letter describes the attempt in 2005 by the Bush administration to "streamline" consultations that supported the National Fire Plan. Presented as a way to facilitate fire control, the Plan actually facilitated logging on Federal lands without regard to the ESA. The plan allowed the U. S. Fire Service and the Bureau of Land Management to "self-consult." A subsequent Congressionally mandated review showed that over 60% of the projects conducted under the National Fire Plan violated the ESA. The Law Center cited a 2004 GAO report that found that agencies regarded consultations with FWS "burdensome" because they interfered with project plans. However, over 90 percent of ESA consultations end at the "informal" level, where projects go forward after an acceptable modification is made to accommodate a species. The enemies of the ESA have clearly overstated the "burdens." A particularly dangerous provision is a 60-day deadline for FWS to respond to an agency's request for consultation. If the deadline is not met, the project will go forward regardless of its impact. Under the rule, even a project that could lead to the extinction of a species could proceed. Considering the lack of funding that hampers the FWS's consultation process, the deadline is a certain tool for subverting the intent of the ESA. Projects submitted to the FWS and the NMFS are not reviewed whimsically; they are reviewed by expert biologists. Protection of species, biodiversity, and ecological balance should not be sacrificed for special interests. In Memory - NJEL is grateful for the generous contribution made by members Frank and Margie Gatti in memory of Frank's mother, Marie T. Gatti. A lifelong resident of Burlington County, Marie lived in Delran for most of her life. She was a kind and gentle person who loved the peace and beauty of the outdoors. She is survived by her husband Francis C. Gatti, Sr. , her sons Robert and Frank, their spouses, and grandchildren and great-grandchildren who loved her. We also gratefully acknowledge the contribution made by member Glenn Malsbury in memory of Sophie C.(Chick) O'Brien, mother of NJEL President Anne Poole. Born in Newark, Chick lived most of her adult life in the Pinelands of Pemberton Township, Burlington County. She enjoyed travelling to other states, to Canada, and to Europe with her husband Jim. No matter where she went, her usual comment upon her return was, "I never thought I'd say it, but I was glad to get back to New Jersey!" *REMEMBER!* The New Jersey Environmental Lobby is your voice in Trenton. We are an independent, nonpartisan, nonprofit organization focused on the preservation and protection of a healthy environment for all our citizens. We need your support! JOIN NJEL and help us change the laws! BACK TO TOP