Below are information and comments re the proposal to subdivide the property in Bernards Township known as Millington Quarry. I hope they will be helpful for those interested in the future for this land.
New sections [6] and [9] added on 03-02-19.
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[1] Application: Quarry owner MQI proposes to divide the 180-acre quarry tract into two lots. What used to be called the MOA area, and is now called the AOC (area of concern), will be Lot 6.01 with 50.3 acres. The remainder will be Lot 6.02 with 129.5 acres.
The Board of Adjustment (BOA) will hold the first public hearing on the application on March 6.
Lot 6.01 will contain the embankment in the NW corner that was constructed with fill material imported in the 2006-2008 period. There are substances in this soil that NJDEP designates as contaminates. When concentrations of these exceed specified limits, NJDEP rules them to be unsafe for direct and frequent human contact (eg play grounds). Tests of soil samples showed concentrations above the specified limits.
A two-foot rock layer has been laid over the embankment surface. This “cap” will be a physical barrier to prevent human contact with the contaminated soil beneath. It will not prevent water from moving into or out of the embankment.
Uses that do not penetrate or disturb the cap (eg biking and walking) will be permitted. Uses that will penetrate or disturb the cap (eg building foundations) will not be permitted.
Lot 6.01 will also contain the west section of the future lake and the short west section of the steep quarry faces along the north wall.
Lot 6.02 will contain the rest of the lake, the graded south slope, and most of the perimeter slopes and quarry faces.
Uses will be those permitted in the existing R-3 zone. It is likely, but not certain, that this lot will in future be further subdivided for residential lots, leaving a large lot with the lake and surrounding undeveloped land, that will be owned and managed by a homeowners association (HOA). I will assume this below.
[2] Applicants Statement: The application package includes an Applicants Statement with this comment: “In furtherance of its efforts to close-out the remediation in an orderly and efficient manner, the Applicant is seeking to confine the capped and deed restricted portion of the Property to a single lot within the overall tract.” (Review the whole statement here.)
With no evidence to the contrary, I will assume that in future the two new lots may, and probably will be owned by different parties.
The applicants statement above suggests that the purpose of subdivision is to absolve present and future owners of land in Lot 6.02, or in its successor lots, of any responsibility for problems inside Lot 6.01 or proceeding from it. I believe this would be a great mistake. I will urge the BOA to deny the subdivision application and will explain my reasons below.
[3] Concerns: The biggest one today is the quality of the water in the future lake. With good water quality there is potential for recreational activities like fishing, swimming, and non-motorized boating. Next in importance are risks of falling for people at the top of the quarry cliffs, and of being hit by falling rocks for people at the bottom.
[4] Lake Water Quality: Future lake water quality may be adversely affected by leaching to the lake of contaminants from the imported fill in the AOC. Each of the new lots will contain a part of the lake. Any harmful leaching will affect the whole lake and both lots.
The lake is now filling. There have been no tests of water quality. We will not know if leaching is a problem until testing begins, continues, and results are evaluated over several years.
If leaching becomes a problem, a condition in undeveloped Lot 6.01 will be responsible for a problem that affects the residents in Lot 6.02. Resolving the problem will be more difficult if Lot 6.01 is owned by one party and Lot 6.02 is owned by one or more other parties. More on this in section [10] below.
This is an argument against subdivision of the AOC from the rest of the quarry tract.
[5] Ground Water Testing: The latest data I have seen re the contaminants in the AOC are in the J M Sorge Remedial Investigation Report Addendum (RIR) of September 2017. Joe Sorge is a Licensed Site Remediation Professional (LSRP) who was retained by MQI to evaluate conditions in the AOC, and then recommend and implement the mediation measures described in section [1] above. His report has 576 pages. A word search does not find “lake” or “lakewater” except two references to Lake Road.
It does address groundwater quality and concludes on page 12 that “groundwater impact is not a concern on the site. … Groundwater at the site meets current NJDEP Class 1 groundwater health based standards.”
In a table of nearby surface water bodies on page 565 it lists only the Passaic River and its tributaries. There is no mention of the future lake.
The RIR addresses groundwater quality comprehensively. It says essentially nothing about lake water quality, now or in the future.
[6] Quarry Ordinance and Rehab Plans: The Township Committee (TC) enacted Ordinance 1515 in 2001 re quarry rehabilitation (rehab). This did not change the physical requirements for rehab. It did describe in detail the information that a rehab plan should contain and the process the Planning Board (PB) should follow in its review of the plan and report to the TC. Three rehab plans were submitted and reviewed after 2001:
- Plan 2003 submitted in 2003 and reviewed by the PB with a report to the TC in 2005,
- Plan 2008 submitted in 2008 and reviewed by the PB with a report to the TC in 2008, and
- Plan 2011 submitted in 2011 and reviewed by the PB with a report to the TC in 2013.
The TC recently set up a Quarry Advisory Task Force to determine and report on MQI’s compliance with, and implementation of rehab Plan 2011 (aka Last Approved Rehabilitation Plan). Many components of Plan 2011 must be reviewed. A final report is expected on or before 10-01-19.
It would be a mistake to subdivide the quarry property before the Quarry Advisory Task Force completes its review, and the TC certifies that all requirements of rehab Plan 2011 have been met.
[7] Lake Water Testing: One component of rehab Plan 2011 is a Lake Management Plan prepared by Omni Environmental and dated 11-13-11. (Review the lake plan here.) In sections entitled Characterization Plan and Lake Maintenance and Monitor Plan, it lays out a comprehensive and long-range plan for characterizing “existing water quality” and future water quality.
At the end of its review of Plan 2011 the PB submitted a report dated 05-07-13 to the Township Committee (TC) with its findings and recommendations. It addressed lake water quality in Item 14 of Recommendations, and recommended additional testing following recommendations of its lake consultant, Dr. Steve Souza, (Review the PB report here.)
I recommended to township officials multiple times that water samples be tested regularly once the lake started to fill in order to
- establish a base line of lake water quality, when it is determined primarily by precipitation,
- make it easier to detect a trend when, and if, future water quality is affected by leaching of contaminants from the AOC, and
- signal the need to take corrective steps before dangerous contaminant levels are reached.
The lake has been filling since 2017. I know of no lake water testing that has been done to date.
Lake water testing should begin now and continue in perpetuity. Test frequency may be decreased if no problems are observed.
[8] Safety: The Lake Management Plan has a section entitled Safety Features. It contains these proposals:
In the lake, a row of buoys will be installed 50 feet away from the wall in order to keep watercraft away from the range of falling rocks. The top of the wall is already essentially inaccessible because of the railroad corridor and the existing chain link fence. However, a thorny vegetated area (approximately 10 feet wide) will be installed on top of the wall to further prevent people from accessing the precipice. Also, additional chain link fence will be installed perpendicular to the existing fence on each end to prevent access from the sides.
The subdivision application package contains three large drawings, one entitled Existing Conditions and dated 03-17-17. I find no reference in it to the safety features proposed in the Lake Management Plan.
The quarry is no longer being worked and there is risk of intrusion between the railroad corridor and the steep quarry faces along the north wall. If not already done, the proposed safety features should be installed immediately.
The fence at the top of the quarry wall and the buoys near the bottom will require periodic inspection and maintenance. With subdivision, the owner of each new lot will have responsibility for sections of both safety features.
The probability for proper inspection and maintenance of these critical safety features will be greater, if the tract is not subdivided and responsibility is with one owner.
[9] Quarry Rehabilitation and Lake Management: During review of Plan 2003, it was agreed that the pit will over many years fill with water from precipitation to the level of the surrounding ground water. Surface elevation will then stabilize, and turnover of lake water will be very slow. PB consultant Steve Souza testified that this large and deep lake would probably eutrophy, and he proposed installation of a system for aeration. He proposed this again in a letter to the PB on 02-02-12. That letter is here and key language from page 5 is below:
At a minimum MQI needs to be prepared to implement algae control measures and potentially be prepared to install and operate some type of aeration system as part of the lake’s long-term maintenance and management. Such maintenance activities were discussed with MQI in the review of earlier reclamation plans, and were contained in documents and correspondence prepared by MQI’s consultants.
MQI consultant Omni Environmental argued that aeration would not be required. Approved Plan 2011 does not require installation of an aeration system now, but it does require ongoing monitoring of lake water quality.
In addition to the risk of contamination from the AOC, there is also risk to the lake of contamination from on-going activities in a residential community established on the south slope (or from any other kind of development there).
This lake will be a large presence in the township forever. No one knows exactly what will happen. My hope and expectation is that it will become a valued private or public asset. But it can also become a problem. Common sense dictates that we prepare now to monitor conditions over the long term, and to address any problems quickly when, and if, they are observed. Monitoring and management of the lake will be required for as long as people live here.
Lake management will be much easier with the whole lake owned by a single entity. The lake, the surrounding undeveloped land, and the AOC, should not be subdivided from each other.
[10] Responses to Future Problems: Consider six possible scenarios: Cases A1, A2 and A3 without the proposed subdivision and Cases B1, B2 and B3 with the proposed subdivision.
Case A1: The HOA proposes a walking path along the south shore of the lake that loops north along the west shore to the north wall, then west and up to the top of the embankment, then south and down to a junction at the south shore. (The development plan submitted in October 2017 shows a loop path like the one described here.) There will be two fishing piers at the lake west edge and a lookout platform and picnic area near the top of the embankment. NJDEP regulations will permit these structures, because they will not permanently disturb the rock cap, and there will be no risk to users from the contaminants in the soil beneath the cap.
The HOA gets NJDEP approval and constructs the path, piers, and lookout platform.
Case B1: Same as A1, except the owner of Lot 6.01 does not allow the loop path, fishing piers, picnic area, and observation platform on his land.
Case A2: Many homes have been built and occupied on the south slope, and an HOA has responsibility for maintaining the lake and surrounding land.
The lake has filled, there is an ongoing water testing program, and NJDEP has approved the lake for fishing, swimming, and non-motorized boating for several years. The lake water tests show gradually increasing concentrations of SVOCs (semi volatile organic compounds) that are known to be in the imported fill. One is benzo(a)pyrene and its concentration is below the safe limit but rising slowly. There are similar results for other SVOCs.
Note: The safe concentration limit for benzo(a)pyrene in water is much lower than in soil: 0.1 part per billion for water and 0.2 part per million for soil.
The HOA has found that the permitted recreational uses contribute greatly to the quality of life for the residents and also raise the values of their homes. It retains consultants who review the problem. They determine that rain beating down on and thru the porous rock cap is washing SVOCs from the contaminated soil in the AOC embankment into the lake. The fix is to lay a clay cap over the rock cap.
The HOA decides that correcting the problem and preserving the lake uses is worth the cost. It gets NJDEP approval to install the clay cap, does the work, and the problem is solved.
Case B2: Same as Case A2, except that the HOA is in Lot 6.02 and the owner of Lot 6.01 does not want to install the clay cap, even if the HOA pays for it. There is a long negotiation while the problem gets worse. The parties eventually reach an agreement, but the residents are denied use of the lake for a few years.
Case A3: The HOA establishes regulations for boating in the lake, including wearing of life jackets, times of use, a designated put-in ramp at the east end of the lake, and use restricted to members of a lake association. The HOA has liability insurance to cover risks from this activity.
The buoys installed to keep boaters away from the quarry faces have not been properly inspected and maintained and have broken loose. A kayaker goes too close to the wall and is hit by a falling rock and seriously injured. The insurance will cover any costs and litigation arising from this accident.
Case B3: Same as A3, except that a non-member sneaks in with his kayak at the west shore of the lake in Lot 6.01, and is hit and injured in the section of the lake in Lot 6.02. There is long and expensive litigation to determine who is responsible and liable.
Conclusion from these cases: Ownership of the AOC should not be separate from the ownership of the lake and surrounding undeveloped land. The tract should not be subdivided.
[11] Master Plan: Common practice is for a municipality to review its master plan every six years. The Bernards plan was last reviewed in 2009. A new review is overdue and one may begin this year.
Because there was litigation with MQI in 2009 the PB skipped over the quarry land in its plan review that year. I have reviewed master plans from earlier years and have found no evidence of any discussion of the specific zoning for the quarry land after quarrying operations stopped. It appears that the R-3 zoning was assigned to the quarry land at the same time that it was assigned to the surrounding land, and then never changed.
I believe that a serious review today of the appropriate uses for the quarry land will lead to a recommendation to allow multi-family dwellings on the buildable land on the south slope and designation of the lake and surrounding land as open space. This open space can be owned by the HOA as in the examples above. But it can also be owned by the township as in the example below.
It would be unwise and improper to subdivide the quarry property before the next master plan review is completed, and the quarry land has been included.
[12] Quarry Park: The future lake will be largest in our region and deep. The Lake Management Plan estimates 50 surface acres and a max depth of 100 feet.
In the reviews of quarry rehab plans that began in 2003 we assumed that the future lake would be suitable for fishing, swimming, and non-motorized boats. Last would include canoes, kayaks, row boats, and small sailing boats. (Today we can add paddle boards.)
In 2004 I designed a concept plan for the quarry called Quarry Park and Lakeview Village. The map of the concept plan is here and a narrative description is here.
I will skip over the history for this plan and say only that it was never seriously discussed. Some conditions have changed. However, this concept plan remains relevant in discussions of the quarry land today.
We had little reason to fear contaminants in 2003. Their discovery in the imported fill in 2008 cast a cloud over future water quality and recreational uses of the lake, and that cloud remains.
I have reasons to expect that future water quality will be suitable for the uses proposed above. But I can’t prove this now, and I do have some doubt. I suspect that most township residents with an interest in the quarry have similar doubts, perhaps greater than mine. The only way to lift the cloud and remove the doubts is to begin a program of lake water testing and watch the results over several years.
Because there is potential for several popular recreational uses, it would be a sin to close off these opportunities before solid data is available to inform the decision. For the same reason, it would be unwise to commit to these uses now.
No options for future use should be foreclosed now. The quarry property should not be subdivided.
Bill Allen 02-24-19 new 03-02-19 revised
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