Bernards Voices

Dear Residents and Neighbors,

Planning Board hearings on the Quarry’s proposed Rehabilitation Plan will continue tomorrow night at the Municipal Building on Collyer Lane at 7:30 pm.  All documents have been posted on the Township website at bernards.org and can be accessed by scrolling down on the home page to MQ Reclamation or by using this link.

One of the documents is the “MQI Clean Soil Acceptance Procedure” which the Quarry proposes to use to bring in more fill.  The Planning Board must determine whether more fill is necessary to rehabilitate the land or whether the Quarry should be limited to whatever clean fill it has already imported. If more fill were permitted, the PB must determine not only whether the protocols are adequate to ensure that only clean fill is brought in this time, but the likelihood of compliance and the ability of the Township to enforce them.

Residents have questioned why we are here again arguing over more fill.  The answer is in the Township ordinance on Quarry licensing.  See 4:9-5.

Required Review and Renewal of Rehabilitation Plan. Approval of every rehabilitation plan shall expire on the third anniversary of its approval, and a revised rehabilitation plan shall be submitted not less than six months before the expiration of the rehabilitation plan. The revised rehabilitation plan shall be reviewed by the Planning Board and approved by the Township Committee in the same manner as an initial rehabilitation plan.

The ordinance describes the requirements of the rehabilitation plan.  With each rehabilitation plan application, the Quarry can argue for more fill importation.  Residents have questioned the Quarry’s sales manager as to whether the Quarry is prepared to pay for fill this time, and the sales manager said that they have not decided, but that there is no greater risk of bad fill if you are paid to take it versus if you must purchase it.

—Citizens for a Clean and Safe Millington Quarry

The Planning Board will resume hearings on the Quarry’s proposed rehabilitation plan tonight at 7:30 pm at the municipal building on Collyer Lane. JM Sorge, the Quarry’s licensed site remediation professional and the person who is likely the most knowledgeable about current and future testing at the site is scheduled to testify.

Attached are several documents which were filed by Sorge regarding filings with the DEP. All of the files should be published at www.bernards.org in the future but were not available at this time. All documents may be viewed at the Planning Board office with an appointment.

The Planning Board hearings may be viewed live at Channel 15 for Cable customers and Channel 35 for Verizon customers.

4 attachments:
20090501 MQI MOA
20090506 Comments to RAWP
20110601 NJDEP Phase II Approval
20111129 List of Documents

PB Meeting December 20

On Tuesday evening December 20 at 7:30, Planning Board testimony will resume on the Millington Quarry Rehabilitation Plan. JM Sorge, the Quarry’s hired engineer and Licensed Site Remediation Professional, will testify. Sorge is the person with information regarding the Quarry’s plans, if any, to test the rest of the site and as to the reason their testing has been limited to designated Fill Areas A, B and C.

December 6 Meeting–Proposed Need for Fill

On December 6, James Cosgrove, a principal of Omni Environmental LLC, testified for the Quarry on the proposed lake management plan. Much of the testimony related to the alleged need for 156,000 cubic yards of riprap for lake bottom and bank. The Planning Board’s environmental expert questioned the need for riprap for the lake.

Consider that the quarry has for decades deeply excavated and sold the rock that it now seeks to import.  The Quarry has profited from sales and importation.  The Quarry’s right to profit must be balanced against the negative effects on the town. And it is fair to question to what extent the amount of proposed fill is related to profit vs need.

Last week a resident wrote the following Letter to the Editor of the The Bernardsville News: Need for More Fill at Quarry called “shocking”

– Citizens for a Clean and Safe Millington Quarry

Dear Residents and Neighbors,

The Planning Board will be visiting the Quarry to view the site as part of its review of the Rehabilitation Plan currently before the Board. The public is invited to join at 9:30 am tomorrow at the Millington Quarry on Stonehouse Road. The purpose of the visit is to better understand the Quarry’s proposal for a 50 acre lake and the purported need to import 58,000 loads of fill at a rate of 150-200 trucks/day. The tour will also offer an opportunity to learn where Fill Areas A, B and C are located, which are the subject of the Quarry’s Memorandum of Agreement with the DEP to test only those areas of the quarry. Testing of those areas has revealed contamination. The DEP has required additional testing under the MOA, which is still pending to our knowledge.  No plan for remediation of contamination has been accepted by the DEP.

CCSMQ seeks testing of the entire site. Any testing of the rest of the site is now under the control of the Quarry and its agent JM Sorge as its designated licensed site remediation professional, a new statutory process which replaces DEP oversight–one to which the Township Committee and CCSMQ objected.

Citizens have questioned why the Quarry is proceeding with a Rehabilitation Plan but not a development plan, and why it is proceeding at all at this time when the DEP process is not complete and the plan for remediation of contamination has not been determined. The answer is that the Quarry cannot renew its quarry license without an approved Rehabilitation Plan. The 2008 Rehabilitation Plan, which has been the subject of litigation, has expired; hence, the litigation is stayed and the Quarry is presenting a new plan to the Planning Board. Without a quarry license, the land would be converted to two acre residential under the township ordinance and taxed accordingly. Consequently, the Quarry has decided to resume or continue mining as it claims. We hope that this background helps to understand the relevance and timing of the proceedings more fully.

Citizens have also questioned why the Township Committee or Planning Board would consider allowing any more trucks to bring in fill when the community testified extensively at the last hearings as to the diminished quality of life, pollution and danger presented by the Quarry’s heavy truck traffic, especially when the residents’ fears of contaminated soils dumped in Bernards Township were proven true. The answer to this question is that the township ordinance requires rehabilitation of the quarry site and allows for a two foot vegetative cover. The quarry seeks to import fill purportedly to fulfill the ordinance requirements and to provide fill for the proposed lake bottom. It is true that the quarry must prove that there is not enough fill on site to fulfill its requirements. The irony, however, is that some of the fill it already imported is contaminated and cannot be used for rehabilitative purposes.

Some citizens have asked for years why can’t we just put a fence around it. Not everyone thinks this is a good idea. And ultimately that question is one for the Township Committee which must balance the property rights of the quarry with the rights of the community to a clean and safe environment and a good quality of life. Residents seem to overwhelmingly agree that this can best be achieved with no more trucks dumping fill in thequarry.

The next Rehabilitation hearing is scheduled for December 6 at 7:30pm.

Citizens for a Clean and Safe Millington Quarry

Below is a letter that I have requested be distributed to each member of the Bernards Township Planning Board and staff.  I do not know today if my request will be honored.   Bill Allen,  11-18-11

November 14, 2011

To:                  Chair and Members of Bernards Township Planning  Board

Subject:           Review of New Quarry Rehabilitation Plan

Introduction:  MQI has submitted a new plan for rehabilitation of the quarry land with a lead drawing entitled “2011 Reclamation for Millington Quarry” and dated 10-13-11.   The township ordinance uses the term “rehabilitation”, and I will continue to use that term and its short version:  “rehab”. 

There follow some observations and recommendations that result from my participation in the revision of the quarry ordinance in 2001 and in the reviews of rehab plans after 2001.  

The new plan is the fourth in the series of plans that have been submitted since 2001.  It is helpful to give simple names to things.  I have named prior plans for the year in the date of the associated drawings.  These were Plan 2003, Plan 2006, and Plan 2008.  The new plan will be Plan 2011.

The term “Quarry” has previously referred to MQI and Tilcon acting together and I will continue to use that term for MQI acting alone.  PB is again short for Planning Board and TC is short for Township Committee.

1. Purpose of Rehab Plan:  The township ordinance for quarry rehabilitation states in section [4-9.5, a, 1]:  ” The purpose of rehabilitation is to return the quarry property to conditions, that are permitted by the township zoning ordinance, that do not endanger the health and safety of the public, and that do not endanger natural resources such as ground water and soil erosion.  The purpose of the rehabilitation plan … is to describe these conditions, how and when they will be met, and the costs to meet them.”

You are accustomed to reviewing applications to develop land.  You and the applicant typically adopt advisarial postures.  Perhaps you wish, as I often did when I sat on the board in the 70s, that these development applications would just go away. 

A plan for quarry rehabilitation is very different.  The township wants rehabilitation and requires a plan for carrying it out.  The township and the Quarry, who is also the owner of the land, have a common interest:  to develop the best possible rehab plan.  The outcome can be win-win. 

Members of the public, whom attorneys often call “objectors”, by their searching questions and proposals may fairly be called “facilitators”.    

2. Review Is Delegated Task:  You are accustomed to working in accordance with the state Municipal Land Use Law [MLUL].  Section [40:55D26, b] of that law states:  “The governing body may by ordinance provide for the reference of any matter or class of matters to the planning board before final action thereon by a municipal body …” 

The Bernards quarry ordinance was first adopted by the Township Committee in 1979 and then revised several times.  Resting on the provision in the MLUL, the township quarry ordinance delegates to the PB the responsibility to conduct a review of a rehab plan and to submit a report to the TC with its findings and recommendations. 

In the conduct of its review the PB works in accordance with the township ordinance.  If there is some conflict between that and your procedures for land use work, the township ordinance controls. 

The authority of the PB is limited to the conduct of the review and submission of the report.  It has no authority to approve or reject a plan.  That authority resides with the TC, and the TC has no obligation to follow, or be limited by the recommendations of the PB.  In fact, the TC action in 2005 [for Plan 2003] did not follow the PB recommendation of 2004, and the TC action in 2008 went beyond the PB recommendation of 2008. 

In making its decision, the TC will probably rely on substantial parts of the record that the PB develops during the plan hearings.  It follows that this record should be relevant and as broad and as deep as possible.    

3. New Plan, New Review, New Record:  Some current board members participated in some of the hearings for other rehab plans.  Some did not.  Same for members of the public.  Plan 2011 is a new plan and you are conducting a new review.  Nothing in the records from prior reviews should carry any weight in the review of the new plan before it is entered as new testimony and made part of the new record.

4. Hearing May Prompt Plan Changes:  Ordinance section [4-9.5, a, 2] contains a key provision:  “In the course of the hearing, the planning board may recommend changes in the plan and the applicant may agree to these and amend the plan accordingly.” 

If you spot a flaw midway thru the presentation of the plan, you may move to get that flaw fixed.  If the flaw is critical, you may adjourn the hearings until it is corrected.   

5. Public Questioning of Witnesses Is Essential:  Ordinance section [4-9.5, a, 2] contains this statement for the rehab plan review:  “The Planning Board shall conduct the hearing and follow regular practices used for development applications. These shall include testimony under oath and the opportunity for members of the public to question witnesses and submit testimony.”

During its review of Plan 2003 the PB allowed members of the public to question a witness after board members had finished their questions.  This worked well.  The review of Plan 2008 was hurried by a court deadline.  The PB did not allow regular questioning and did not receive some potentially valuable input.  In the review of Plan 2011 it is essential that the board return to the letter and the spirit of the township ordinance and allow regular questioning of witnesses by the public.

6. Questioning of Witness Within Area of Expertise:  I have observed local land use boards off and on since 1972.  Common practice is to allow members of the public to ask questions that are relevant to the case and fall within the area of expertise of the witness.  They are not restricted to the testimony already given by the witness. 

Example:  Traffic engineers for a developer always provide analyses of traffic during peak hours in their reports and opening testimony.  Residents are usually interested in the traffic at other times:  when children are coming home from school, or when they are out walking or jogging, or when they just want peace and quiet near their homes.  Questions about this non-peak hour traffic are allowed.

7. Public Testimony:  The ordinance language in Section 5 above says that members of the public shall be allowed to “submit testimony”.  It does not say that they have to qualify first as experts in the subjects they are addressing.

Example:  A common complaint in development applications is that nearby real estate values will decline.  A land use board allows members of the public to assert this in their testimony, even though they are not qualified as experts in real estate appraisal.  Board members may not assign much weight to the testimony, but the board does allow it.

All public testimony must be allowed, so long as it is relevant and not repetitious.

8. Reports:  It is common practice for a professional witness to submit a report before his [or her] planned oral testimony.  Copies are distributed to board members and staff and made available for public review.  Interested persons may review the report and prepare the questions they intend to ask of the witness when he appears before the board.  When the witness does appear, his whole report is entered into the record, even though his oral testimony may cover only a small part of its content.  This practice works well.   

Members of the public should be allowed to submit reports in advance of their testimony for distribution and review in the same way as those from professional witnesses.

Wrapup:  Thank you for considering these comments and recommendations.

Bill Allen                  

The Quarry’s proposed Rehabilitation Plan has been posted on the Township website. You may click on this link Millington Quarry Reclamation Documents or go to www.bernards.org and scroll down under “News” to access the documents.

Please note that the Planning Board hearings on the Plan will be held potentially November 22, not sooner. Always check the Planning Board agenda on line before the scheduled meeting.

Citizens for a Clean and Safe Millington Quarry

IMPORTANT NOTICE TO RESIDENTS

The Millington Quarry has filed a new Rehabilitation Plan, which requires your attention and involvement as the Quarry proposes to import over 500,000 cubic yards of fill to the site. This means truck traffic will resume. Residents on Stonehouse and Lyons Road know what life was like three years ago–truck traffic and associated noise and pollution were intolerable and contaminated fill was brought into our town and dumped in the quarry. Apart from truck traffic, the Quarry is a 180 acre site and has a tremendous impact on the future of Bernards. If you cannot attend, you can record and view the Planning Board hearings on local cable television, Channel 15. (November 8 is first expected hearing.) You should also look at the Plans, which we anticipate will be available on line shortly, and familiarize yourself with the ordinance applicable to the Rehabilitation Plan (see below). You must be heard as you were three years ago when our Township Committee put an end to the truck traffic and the dumping of contaminated fill in our town. Our Government works best when Residents are involved.

Updates:

• Planning Board hearings on the Rehabilitation Plan are expected to begin November 8.
• Tilcon, the former quarry operator, dismissed its lawsuit against the Township; the Quarry owner did not.
• The Quarry’s lawsuit is stayed pending Planning Board review of the Rehabilitation Plan.
• The Quarry intends to resume mining; according to the Quarry it never really stopped.
• The DEP still retains jurisdiction for a limited area of the quarry, which has been found to contain contaminated fill. The Quarry’s agent retains sole jurisdiction over the rest of the site as a Licensed Site Remediation Professional and may determine whether and to what extent the remainder of the site will be tested for contamination.

Details of these events are below.

Litigation

Although the operator, Tilcon, has dismissed its lawsuit against the Township, the Quarry’s lawsuit is still pending. The lawsuit challenges the Township’s conditions of approval on the last Rehabilitation Plan and also the Township ordinance prohibiting importation of fill without Township approval. (Ordinance 2025.) The last Rehabilitation Plan has expired; the Township has taken the position that the lawsuit is at least partially moot. Consequently, the Quarry has come back with a new Rehabilitation Plan and the Court has agreed to stay the litigation while the Planning Board reviews the new Plan and makes recommendations to the Township Committee.

Quarrying Activities

Residents have been asking why the Quarry is mining again. According to the Quarry’s attorney, they never stopped mining, although on a smaller scale than when Tilcon operated the site. (Linda Sadlouskos reports in October 21, 2011 Basking Ridge Patch.) The Quarry’s position may or may not be a strategic one to move the Rehabilitation Plan forward. For instance, in the Quarry’s Environmental Impact Statement, it is argued that if the land is not reclaimed for development, the alternative is to resume “normal full-scale quarrying operations” which will generate 350 to 400 trucks a day (OMNI Environmental Report, p.9). Residents learned that truck traffic during 2006-2008 was largely attributed to fill importation, not stone exportation, so this assessment needs to be examined.

For information only, the Quarry also has filed a tax appeal against the Township, which may or may not be related to its decision to continue mining; for instance, if the Quarry ceases mining, the Quarry may be subject to a higher tax assessment based on its conversion to an R-2, two acre residential zone. Until the Quarry is ready to develop the site, mining may equal tax savings.

While the tax matter and mining may not be directly related to the Rehabilitation Plan and the Citizens’ efforts to ensure a clean and safe quarry, we include this information as part of the whole picture and in response to residents’ questions about quarrying activities.

The Rehabilitation Plan (“the Plan”)

The terms “rehabilitation” and “reclamation” are used interchangeably. Township Ordinance 4-9.5 describes the purpose of rehabilitation: “to return the quarry property to conditions that are permitted by the Township Zoning Ordinance, that do not endanger the health and safety of the public, and that do not endanger natural resources such as groundwater and soil erosion. The purpose of the rehabilitation plan . . . is to describe these conditions, how and when they will be met, and the costs to meet them.” You may review the quarrying ordinances online.

Notably, the Plan calls for the importation of 580,074 cubic yards of fill and estimates 120-150 trucks per day during reclamation. A primary focus for the Planning Board will be how much fill is needed to rehabilitate the site. Under our current Township ordinance, the Quarry must be brought to a final grade with a two foot thick vegetative cover, unless a different depth is approved by the Township. The Quarry estimates that the amount of fill required to reach the 2′ vegetative cover is 580,155 cu. yds (179.8 acres x 2 foot cover). The Quarry proposes importing additional fill for “riprap” for the lake bottom and bank, in the amount of 156,000 cubic yards (48.4 acres x 2 foot depth).

The Planning Board must determine the need for fill and how much “overburden” fill is available on site to satisfy the Quarry’s alleged requirement. Of course, residents are concerned about the quality of fill. Under the ordinance, the Township Engineer is charged with determining the suitability of the fill. The Township has a new engineer, Tom Timko, and an assistant Township Engineer Valerie Spies. They will be part of this process. Additionally, the Planning Board and Township must ensure appropriate inspection and certification protocols for the importation of all fill. During the approximate period 2006 to 2008, the Quarry implemented random and inadequate spot checks and a faulty system of investigation before allowing trucks to dump fill in the Quarry. This has led to contamination of the site.

The Plan does not detail the number of homes or other aspects of development, and it is not required to do so at this time. The Plan is “conceptual” and may change but is required for maintaining a quarrying license. A 50 acre lake is depicted.

The papers should be on the township website shortly and we will forward the links to you. The papers consist of 1) six engineering drawings; 2) a lake management plan; 3) an Environmental Impact Statement; 4) a geotechnical engineering consultation; 5) a cost estimate; and 6) a high wall stability letter. These documents are currently available for review at the Planning Office upon appointment.

The first hearing on the Rehabilitation Plan is expected to be on Tuesday November 8 at the Planning Board on Collyer Lane, beginning at 7:30 pm. Please check the Planning Board Agenda 48 hours before the hearing to confirm.

DEP Action

The DEP still retains jurisdiction over the Quarry’s Memorandum of Agreement to test Areas the Quarry designated as Fill Areas A, B and C. The Quarry claims these areas contain the imported fill. The DEP rejected the Quarry’s plans for remediation which proposed capping the fill, and instead required additional sampling of fill areas A & C. No additional sampling results have been submitted. The DEP will not consider a remedy until additional sampling results are reviewed.

The DEP has confirmed that the Quarry has “opted-in” to the Licensed Site Remediation Professional (LSRP) program for other areas of concern at the site and designated its agent JM Sorge as LSRP. The LSRP can make decisions regarding the site and implement them without DEP oversight, cutting out residents and the Township’s input as well. Once the LSRP submits a document, a DEP inspection/review process is initiated for that document. At that time, residents and the Township must be diligent in learning of the submission and providing input to the DEP, a more difficult task. No DEP individual is assigned to any LSRP site. To date, the LSRP has submitted no documents.

The Township and Citizens had objected to the LSRP program for the quarry site and asked that the DEP retain jurisdiction for the entire site, as the LSRP statute permits. To date, the DEP has not formally responded to the Township and residents’ objection.

We will do our best to keep you informed and ask that you continue to be part of the solution. Thank you,

–Citizens for a Clean and Safe Millington Quarry

Dear Residents & Neighbors,

The status of the Millington Quarry can be summarized as follows–testing is proceeding with the DEP’s approval of Phase 2 of the Remedial Investigation Work Plan (RIP); mediation ended without resolution; and litigation now resumes.

Testing: The DEP approved the Quarry’s Phase 2 RIP, attached. The objective of Phase 2 is to “complete additional characterization sampling” of Areas A, B, and C (identified by the Quarry as the location of imported fill) and “to obtain sufficient data to support the final remedy.” The Quarry formerly proposed capping the contaminated soils as a remedy, which was rejected by the DEP as it deemed characterization sampling incomplete. Phase 2 proposes, among other things, additional test pits, the installation of an additional monitoring well and deep borings within Fill Area A, as well as deep vertical sampling of ten additional locations during final grading. For Area C, Sorge will advance three shallow soil test pits. In addition to three existing monitoring wells at the site, a deep boring reported to be along the northern wall will be converted to groundwater monitoring.

The DEP reported that it has also approved the Quarry’s application to permit JM Sorge to act as licensed site remediation professional (LSRP) for testing the rest of the site at its discretion. Effective 2012, the LSRP legislation requires a property owner to hire its own agent to step into the role of the DEP to conduct testing and remediation for discharges under the Site Remeditation Reform Act. The DEP must maintain oversight, however, where a remediating party is recalcitrant in conducting timely cleanups and for sites that pose the greatest risk to the environment and human health. The Township and Citizens had objected to designation of Sorge as the Quarry’s LSRP primarily because Sorge’s testing proposals were rejected by the DEP as inadequate and, therefore, not in the public’s best interest–the required standard under the LSRP program.

Litigation: Mediation concluded without resolution. The parties are now in the discovery phase of litigation (answers to the Complaint, interrogatories, document requests, etc.). The Township is defending its ordinance to stop further importation of fill and other requirements related to the rehabilitation and remediation of the quarry site.

Rehabilitation Plan: No rehabilitation plan has been approved by the Township Committee since 2005. The TC has taken the position that it will not address the Plan until testing is concluded and a remediation plan for contamination is approved. Millington Quarry and Tilcon are jointly responsible for submitting a Rehabilitation Plan. One wonders whether Tilcon’s departure from the Quarry last year, and their joint liability, will interfere with their ability to agree on a Plan, or will their divergent interests lead to different proposals for remediating the 180 acre site?

Please continue to be watchdogs for your community. If you see any suspicious activity at the Quarry you should report it immediately to a Township Committee member.

–Citizens for a Clean and Safe Millington Quarry

The DEP has advised that it completed review of the Millington Quarry’s remedial action work plan (RAP) of September 22, 2010. The RAP discusses the results of the first phase of soil sampling for certain areas of the quarry that MQ agreed to test (designated Fill Areas A, B and C). Because contaminants were found to exceed state standards, MQ proposed constructing a cap for the fill. The DEP has rejected the proposal at this time because it believes characterization of the fill is incomplete and more testing is necessary.

In our last communication, we notified you of our group’s efforts urging the DEP to deny the Quarry’s designation of its engineer JM Sorge as a Licensed Site Remediation Professional (LSRP) for the site, which would minimize DEP oversight and potentially eliminate citizen and township input. We have received no notice of action on the LSRP application. In 2012, the Quarry will be able to enter the LSRP program by law but we will continue to seek DEP oversight and designation of an impartial LSRP who can be expected to act in the public’s best interest, as required under the LSRP program.

Citizens for a Clean and Safe Millington Quarry

Dear Residents and Neighbors,

Sen. Bateman and Assembly Representatives Coyle and Biondi have advised us that they support the Citizens’ efforts in urging the DEP to maintain oversight of the Quarry investigation and they will write letters on our behalf.   Asw. Coyle has met previously with the DEP on the Township and Citizens’ side in this matter.

As a reminder, the DEP has jurisdiction of the Quarry investigation under an existing Memorandum of Agreement and has required the Quarry to conduct more testing than Millington Quarry and its hired consultant JM Sorge have proposed. Sorge has already attempted to have the investigation deemed complete–a move which the Citizens and Township opposed and which the DEP rejected. The Quarry then initiated a new strategy, one to replace the DEP monitor with its own hired consultant Sorge. The Quarry has moved to have the investigation conducted by Sorge under the Licensed Site Remediation Program, knowing that this would significantly limit DEP oversight and virtually negate citizen and other interested parties’ input. The Quarry is not required at this time to follow the LSRP program but may continue under the MOA until 2012.

Citizens and the Township have appealed to the DEP Commissioner and our state representatives to support us and the assurances of our state legislators are encouraging.

Citizens for a Clean and Safe Millington Quarry