The N.J. Department of Environmental Protection (DEP) reversed itself Monday, deciding not to issue a notice of violation to the Bayshore Regional Sewerage Authority (BRSA), which is constructing a 1.5- megawatt wind turbine at its Union Beach site.
In response to a letter from the borough’s special environmental counsel, Stuart Lieberman, of Lieberman & Blecher, Princeton, the DEP issued the BRSA a letter on Feb. 8 advising that the sewerage authority had violated preconstruction conditions of a permit issued for a proposed 380-foot-tall wind turbine, located 1,080 feet from a residential neighborhood.
According to the DEP letter, the project had not received approval from the Freehold Soil Conservation District or final approval from Jersey Central Power & Light (JCP&L) for an agreement that would allow room for the turbine’s 118-foot-long blades to rotate over the authority’s property line.
DEP and BRSAofficials discussed the issues outlined in the Feb. 8 letter Monday afternoon, and the BRSA agreed to come into compliance, according to DEP spokesman Lawrence Ragonese. “We mostly ironed out these issues. At this point, there’s no current plan to issue a notice of violation,” Ragonese said in an interview Monday afternoon, following the meeting. “The letter was sent out to say there was a complaint that had been filed about these issues and it looked like there had been some work done without some proper permits. We went over that in detail.”
BRSAExecutive Director Robert Fischer did not return calls seeking comment.
A notice of violation, according to the DEP, puts an applicant on notice about an alleged permit violation or an issue of noncompliance with state law. The notices do not carry penalties but can serve as the basis for additional enforcement action if compliance is not achieved, the DEP states.
“Bayshore has agreed this week to provide more information to us and make sure we are completely up to date about what they are doing so there’s no dispute as to what they are doing and if they are meeting all the requirements,” Ragonese said. “Our guys will continue to keep an eye on it just to continue to review it and make sure everything is done according to the letter of the law.”
In May 2010, the BRSA received a permit through the Coastal Area Facility Review Act (CAFRA) for the erection of the turbine located in the northern corner of the wastewater treatment plant’s site. The construction of a pile-cap foundation for the 262-foot-tall concrete pedestal was installed in September 2010.
However, Lieberman argued that the BRSA violated its CAFRA permit because the authority began construction without obtaining all necessary local, state and federal construction approvals.
“They [DEP] responded to the fact that we sent a letter to the commissioner and asked that they take action,” Lieberman said in an interview Monday morning. “We informed them that we believe that the BRSA is not complying with the CAFRA DEP permit. For example, we have problems with the fact that they laid the foundation without getting JCP&L approval, although they say they have it. We also take issue with the fact that they laid the foundation without getting approval from the [Freehold] Soil Conservation District.”
He added, “There seems to be this idea behind the BRSA, this imperial notion, that laws and requirements don’t apply to them and they could do what they want to do. What we are doing step by step is making sure they comply with the legal requirements. We are looking at everything they are doing.”
With regard to the two concerns outlined in the letter from the DEP, Ragonese said an issue of soil disturbance on the wastewater management facility’s 24-acre property triggered the need for a permit from the Freehold Soil Conservation District. If the disturbance is less than 5,000 feet of soil, a permit is not required. The BRSA levels, he said, were slightly higher, but not by much.
“In this case, it was right at the threshold,” Ragonese said. “We discussed this with them today, and apparently the contractor had come in, and in preparing the ground for a crane that would need to come in, you have to have a suitable surface for a crane. They disturbed some soil that raised the level to a bit more than 5,000 square feet. We talked to them about this, and they have already reached out to the Soil Conservation District, and we anticipate they should be getting their permit by Wednesday [Feb. 16]. That should be resolved.”
Regarding the JCP&L issue, Ragonese said the DEP has a copy of a memorandum of understanding between the BRSA and JCP&L about subdividing and consolidating a half-acre lot with the BRSA’s property. “They [JCP&L] have agreed to let them use the site, and we [DEP] are going to buy a piece of that property,” he said. “It was approved back in 2010. While technically, it may disturb the adjacent landowner, the landowner is not complaining or not objecting to this. They will be turning part of the site over to the DEP, in an agreement that was executed back in 2010.”
He added, “We talked to them [JCP&L] and we talked to the owners here [BRSA]. At this point, we don’t see there is really an issue that would require us to issue a notice of violation. We’ve met and we’ve discussed the nature of the issues.”
However, the Union Beach Planning Board ruled at a meeting on Dec. 8 that the BRSA must re-apply to obtain approval for the subdivision of the JCP&L property.
BRSA attorney Louis E. Granata, of Granata & Zaccardi, Matawan, subsequently submitted a complaint against the Union Beach Planning Board, asking the Superior Court in Freehold to restrain the board from “delaying or interfering with the project.”
During the same month the BRSA received its CAFRA permit, Judge John R. Tassini issued an order restraining and enjoining the borough “from enforcing or taking any action under its ordinance regarding the permitting, installations, construction or prohibition of the project,” according to the complaint.
The action resulted in a gag order on the borough’s governing body, barring any decisions or actions regarding the construction of the turbine.
Lieberman said Judge Tassini’s order only applies to the municipality enforcing the turbine ordinance and not to the planning board.
“They seem to think if they create enough smoke, they will obscure the issue and they will fool everybody,” he said earlier on Monday. “This is one of those examples. No CAFRApermit ever provides that it is not subject to local and federal approval. They always say that. For their attorney to have taken the position ‘You have to approve this because we have our CAFRA permit,’ it just makes me really ill that these good people [on the planning board] are taking their nights off, they work during the day, and they have to be subjected to these kinds of shenanigans. It is not right.”
After the Feb. 14 meeting, Ragonese said the BRSAwill satisfy the compliance requirements on the two issues directly to the DEP.
“We understand it’s been a sensitive issue in that neighborhood,” he said. “Here at DEP, we are trying to follow the rules and make sure they are complied with, and that’s a really hard job. There’s an understanding about the sensitive nature of this, but based on what we saw in our meeting with them, at least on these issues, they did comply.”
The BRSA serves the communities of Hazlet, Union Beach, Matawan, Aberdeen, Keyport, Keansburg, Holmdel and Marlboro.
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