Regulatory Update: DEP Dead in the Water; Enviro’s AWOL; Press and Dems Asleep

The Eye of Category 5 Hurrricane Christie/Martin Passing Over Trenton

[Updates below]

After pounding Trenton for months with record breaking sustained 175 mile per hour winds, destroying several major programs, and killing the morale of over 3,000 DEP workers, the Christie/Martin anti-regulatory winds have gone slack over Trenton.

As the eye of the storm passes over Trenton, we thought we’d take this opportunity to inventory the current damage and outline the path of destruction to follow (done in summary fashion – please hit the links for the full discussion and source documents, or use the word search function on the top righthand corner of this page to access my prior posts on that topic). We invite and welcome additional reports from readers out there – and please provide documentation.

I)  Damage Assessment Thus Far

1. New regulations virtually stalled.

To give readers a sense of the radical nature of the Christie/Martin assault and illustrate just how dead in the water DEP is, we gathered data on historic DEP rulemaking activity:

             Year                                  Rules Proposed      Rules Adopted

• 2004                                                NA                              8
• 2005                                                NA                              8
• 2006                                                NA                            11
• 2007                                                22                              11
• 2008                                               18                              24
• 2009                                               21                                 9
• 2010                                                *4                               *2

(*The performance is even worse than the numbers indicate.  The 4 Christie rules proposed were controversial and/or did not advance envrionmental protection: i.e. bear hunt; fishing promotion; further relax site remediation oversight and enforcement, and subsidize homeowners for dam restoration costs. The 2 rule adoption were rules proposed by the Corzine Administration: i.e sulfur in fuels and coastal wind).

 2. Executive Order #1 Regulatory moratorium and EO 2 cost-benefit review killed 4 proposed rules – ( i.e. drinking water standard for perchlorate; global warming emissions monitoring; public access to the coastal zone; and wetlands. The wetlands kill was a good thing.)

3. Commissioner Martin issued Administrative Order 2010-3 which delayed  implementation and froze enforcement of the Water Quality Management Planning rules for 1 year. We don’t have a full asssessment of all the damage caused by the move, but we assume it was significant, and scores of bad projects in environmentally senstive areas were approved.

4. The DEP testified in support of three major pieces of legislation that would significantly weaken environmental protections: (i.e. prohibition on guidance; rollback to minimum federal standards with legislative rulemaking; and strip the DEP Commissioner of final decisionmaking power in contested cases).

5. On October 4, 2010, DEP proposed new rules that would gut the mandatory cleanup schedules and enforcement fines adopted by the Corzine administration just last December. Those Corzine rules were necessary to hold private cleanup contractors accountable and prevent abuse in the new privatized Licensed Site Professionals cleanup program.

6. Commissioner Martin issued a clouded vision statement, a new office of economic analysis, and sham priorities. Martin’s prime imperative  is to elevate promotion of economic development and consideration of industry compliance costs over protection of public health and the environment.

7. Secret, off the record, industry dominated, by invitation only “stakeholder meetings” are ongoing to further dismantle the Department and its regulatory programs. The secrecy has gotten so bad that DEP’s Orwellian website posting doesn’t even disclose the names of those “invited”.

II)  UpComing Path of Destruction

1. The 180 day review of 17 existing DEP rules created by the Red Tape Review Report expires on October 19, 2010. We expect extreme damage to occur in sensitive low lying program areas, including:

•  Water Quality Management rules which prohibit sewer line extensions into environmentally sensitive areas such as forests, stream buffers, and endangered species habitat;
• Rules to protect the New Jersey Highlands, a region of 800,000 acres that provides water supply to over 5 million state residents, from degradation due to over-development;
• Stream buffers protections and flood hazard reduction regulations;
• Strict oversight of toxic site clean-ups managed by private consultants, under a new privatized site remediation plan enacted under Gov. Corzine;
• Coastal zone management protections, including public access rules;
• Air pollution control to allow wider variances for exceeding permit limits;
• Relaxing rules under the Toxic Catastrophe Prevention Act to prevent a repeat of the disaster at a Dow Chemical plant in Bhopal, India, where 7,000 people died from poison fumes. The report cites compliance costs to industry and questions the need for any rules beyond a federal minimum; and
• enforcement “flexibility”, waivers, exemptions, grandfathering, delegation of programs and assorted loopholes.

2. The 6 month stay requested by Commisioner Martin in the legal challenge by the Farm Bureau of the Highlands Septic Density Standard expired on or about September 9. Commissioner Martin promised the Court a “fresh look” at that standard. So, we expect a DEP surrender in the form of settlement agreement and regulatory rollback of that core Highlands protection to be announced shortly.

3. We expect more massive weakening of the toxic site cleanup program, as 5 “industry committee” meetings are underway.

4. Several really bad recommendations of the Chrisite DEP Transition Team have already been implemented via guidance quietly in the absence of formal rulemaking or any public notice. These include:

• scale back or eliminate selected strategies that contribute the least to environmental improvement.
• Reexamine regulations to ensure they are properly focused on specific, well defined goals, and minimize or eliminate peripheral requirements. An example of this is the waterfront Public Access rule adopted by DEP in 2007 without direction from the Legislature, which completely changed the existing waterfront public access framework and imposed onerous new fees without standards for how the fee would be applied or calculated.
• Eliminate the Office of Policy, Planning and Science and allocate policy and planning responsibilities to the appropriate regulatory programs
• Establish an advisory panel of external experts to advise DEP on matters of scientific and technological innovation.
• Reinstate the Alternative Dispute Resolution program under the Counselor to the Commissioner which had helped expedite settlements, thus reducing the number of disputes referred to the Office of Administrative Law (OAL) as contested cases.
• Establish an Office of Economic Analysis at the Department of State or the Office of the Governor as a shared service for all State agencies and tasked to provide advice directly to commissioners regarding economic drivers including the projected economic effect of new regulations. This office should also assist in risk assessment analysis for when agencies are setting regulatory policy.
• For every rule proposal, require a comprehensive discussion and peer review of the science the DEP considered in support of each element of the proposal, and for every rule adoption, the science relied upon by those commenting to support different policy choices, and any agreement, disagreement and uncertainty regarding the science.
• Require the Office of Economic Analysis to evaluate the economic and financial impacts of proposed rules or other major regulatory decisions, including the potentially adverse impacts associated with taking no action
• Rquire the Office of Economic Analysis to evaluate the analyses of economic impacts received from interested parties during the public comment period.
• Convene one or more informal meetings with stakeholders to discuss rulemaking objectives and accept input on policies, and whenever appropriate, distribute draft rule text to stakeholders for comment prior to the preparation of rule proposals.
• The DEP must fundamentally overhaul the way development projects are regulated and streamline the permitting process. The State must create an office that provides a single point of entry with an accountable person to shepherd companies pursuing complex projects through the regulatory process. The DEP must immediately suspend the implementation of requirements that have not been properly adopted through rulemaking, and immediately reconsider existing regulations that impose requirements that are not grounded in sound science, are impractical to satisfy, and conflict with other State environmental and land use policies.
• Create a business/project ombudsman in the Office of the Governor to create a single point of entry for complex projects.
• Provide that jurisdictional determinations (determinations as to whether or not a permit is necessary) may be requested and provided on-line.
• Delegate land use permitting to the Meadowlands, Highlands, and Pinelands Commissions for the areas within their jurisdiction.
• Eliminate duplicative reviews by accepting the approvals conducted under the Municipal Land Use Law (MLUL) from other governmental jurisdictions when appropriate; for example, stormwater management plans need not be subject to multiple reviews.
• Delegate land use permitting at brownfields sites to the Site Remediation Program
• Immediately suspend the inappropriate use of the Landscape Project mapping of purported Threatened and Endangered species habitat.
• Immediately rescind Administrative Orders requiring the application of 300-foot buffers from certain streams or rivers where existing rules require a 150-foot buffer.
• Immediately suspend the practice of conditioning permits on the imposition of conservation easements on portions of property not subject to the pending application.
• Revise existing rules to allow for the greater use of waivers and exceptions to specific requirements when project applicants demonstrate that alternatives will yield the equivalent or better environmental results. Immediately direct, as a matter of policy, that hardship waivers allowed under existing rules be granted when justified.
• Reexamine buffer requirements in urban/disturbed areas and Planning Areas 1 and 2 designated for growth under the State Development and Redevelopment Plan (hereinafter referred to as the State Plan) as applied to wetlands, C-1 waters and potential Threatened and Endangered species habitat under Flood Hazard, Stormwater, and Wetlands rules.
• Revise the Water Quality Management Planning rules (WQMP); update and improve sewer service areas through regional planning and coordinate with the State Plan.
• Utilize the previously recommended business ombudsman to overcome existing regulatory hurdles without undermining environmental protections.
• With respect to the State’s efforts to seek compensation for damages to natural resources (NRD), we recommend that NRD efforts fall under the jurisdiction of the Site Remediation Program, and that rules be adopted to provide transparency, certainty and consistency in the assessment of those damages.
• Revise the Interim Rule to limit its scope to SRRA required elements. For example, the provisions of the interim rule applying new requirements for vapor intrusion were not mandated by SRRA and should be subject to fuller pubic review and comment before adoption. Vapor intrusion occurs when contaminants in groundwater or soil emit vapors that enter structures and could have a potential impact on human health.
• Apply the DEP’s efforts toward compliance assistance to all site remediation professionals and responsible parties.
• Review and revise current requirements pertaining to vapor intrusion within building structures, including how and when to test, notification, and/or mitigate
• Transfer all responsibility for NRD assessment restoration and recovery to Site Remediation.
• Adopt regulations regarding NRD assessment, restoration and recovery that are transparent, stable and predictable.
• There needs to be a recognition that agriculture, like every other business in New Jersey, has been overregulated and burdened by DEP rules. Farmers should be recognized as stewards to the land and treated as partners in land preservation not potential polluters.
• Revenue generation should be maximized through the use of concessions, camping and park rentals and forest management.
• There needs to be a full examination of DEP’s existing self-audit policy utilized by the regulated community, to ensure it does not create disincentives for voluntary disclosure and provides adequate and appropriate time to correct violations
• There needs to be a full examination of DEP’s administrative penalty regulations to ensure they are fair and consistent
• There needs to be a full examination of the implementation of the “Grace Period” regulations to ensure that they follow the legislative intent of the Grace Period statute. The Grace Period statute was aimed at making a distinction between minor and non-minor violations and providing an appropriate time to correct those violations. However, the DEP has inappropriately implemented the regulations by issuing automatic violations with limited time to respond.
• Simplification of the permitting process: Title V Permits which are permits for certain large facilities, administered by the DEP as required under the federal Clean Air Act, have become extremely cumbersome and voluminous in New Jersey. Steps should be taken to reduce the complexity of these permits.
• Chromium Standard: Re-evaluate the current chromium standard, taking into consideration natural baseline levels and peer reviewed scientific data.
• Prevailing wage at brownfield sites: In order for the State to attract investment and compete for economic development with bordering states, New Jersey must eliminate the prevailing wage requirement under State reimbursement programs for brownfield sites.

5. A number of major priority initiatives have fallen off the end of the earth, such as:  implementation of the global warming response act, update of the water supply master plan,  sustainable land use/smart growth, protection of threatened/endangered species habitat, reducing nutrient water pollution, strengthening chemical plant safety, upgrading drinking water standards,  reducing urban air toxics, and promoting environmental justice.

6. New but ill defined threats are posed by a new Science Advisory Board and a recent Request For Proposals to privatize Land Use permit reviews.

III)  Summary and Prospects

Perhaps the most surprising and disgusting aspect of this massive destruction is that it was predicted (see this October 6, 2009 pre-election post), and thus avoidable. But instead of prevention and defense, there has been a total collapse of all oversight and counterveilling powers.

1. The environmental community is disorganized and AWOL (with the sole exception of Jeff Tittel of Sierra Club).

Worse, despite this unprecedented and destructive assault, the NJ Environmental Federation continues to provide cover and defense of Christie, and seems incapable of a very prominent public mea culpa for endorsing Christie.

2. The Democrats are either leading the charge backing the rollbacks, or keeping their powder dry in holding the Christie Administration accountable for this horrific record.

3. The press is sleeping and/or incapable. Partially as a result of #1 and #2, the media – with the exceptions of Tom Johnson at NJ Spotlight, Jim Oneill at the Bergen Recod, and Ed Rodgers at NJN – has taken a powder.

We expect further devastation as the Christie/Martin storm passes over a completely unprotected and vulnerable Trenton.

[Update:  2 – 10/13/10 signs that people are waking up? Today’s Philadeplphia Inquirer story:  Environmental groups worry about Christie agency decisions – But Dave Pringle of NJEF continues to cover for Christie: 

Bill Wolfe with Public Employees for Environmental Responsibility is also concerned. “DEP’s mission, established by law, is to protect the environment and public health, not grow the economy,” he said. “Martin’s views are at odds with law, almost 40 years of practice, and the reality of environmental policy, where compliance burdens often cost industry real money. ‘Greater flexibility’ is merely a code for providing ‘regulatory relief.‘ ”

David Pringle of the New Jersey Environmental Federation was more reserved in his assessment of the plan. “It’s a healthy process for an agency to look at how they’re doing things and modernize to be more effective,” he said.

Here is the process DEP Commissioner Martin directed – that Pringle finds “healthy“:

Our agency does not have the luxury of transforming over a 3 to 4 year time frame. It is incumbent upon all managers to begin to identify, today, the changes that can occur immediately. We must identify what administrative and non-mission critical tasks we can stop doing without a protracted internal or external stakeholder process. (see page 3 of otherwise empty “Transformation Plan“) END