Shoes Drop in 2011, As DEP Implements Christie “Regulatory Relief” Policy

It’s time for the 2011 year in preview, highlighting the major issues and controversies that will ripen in 2011.

I forsee a series of train wrecks, as DEP implements Governor Christie’s pro-business “regulatory relief” policies that are codified in Executive Orders #1-4. The framework and foundation for implementation of those policies was laid during 2010.

The enormous magnitude of material makes it impossible to discuss the substance of each issue in a single post. However, we have discussed most of these issues in depth here, so those looking for that and links to documents should use the word search function in the top right corner of the webpage.

The sheer volume, scope, and systematic nature of the assault itself is highly revealing, both of the arrogance and the radical degree of dismantling sought by the Christie administration.

Looked at comprehensively, it is unprecedented and simply breathtaking.

My sense is that there is no way they can pull it all off, because they simply have bitten off far more than they can chew, if only from a DEP staff standpoint (the Christie Team appears impervious to public criticism and NJEF is working hard to provide political cover).

DEP Commissioner Martin is just learning that it takes almost as much staff effort to dismantle regulations and environmental programs as it does to create them. DEP is seriously understaffed, especially in policy analysts, lawyers, and regulatory experts required to do the job.

This reality will lead to another set of problems, as Commissioner Martin is frustrated by his inability to dismantle what he and his business cronies view as overly burdensome requirements via formal action. This frustration will lead to even less transparent and more abusive informal site specific case-by-case “regulatory relief” (e.g. negotiated deals), made necessary by the failure to ram through comprehensive rule changes.

Along these lines, the package of Red Tape bills passed by the legislature (now on the Governor’s desk) will prove very useful to Martin because they make it very easy for special interests to draft the text of DEP regulations. This abuse is now occurring in DEP’s toxic site cleanup “reform” process (SRP), where, for the first time ever, private sector representatives are actually drafting the text of DEP’s regulatory documents.

Industry influence on DEP’s SRP is now happening on the “front end” of the rule development process, before new rules are even proposed for public comment (a major SRP rule proposal is expected in May 2011). The Red Tape changes in administrative law –  to allow previously prohibited “substantive changes on adoption” – go even further and will allow industry to control the “back end” of the regulatory process and write the text of the final rules DEP adopts.

So, I’ve broken the issues down into six groups, based on how the DEP program, regulation, policy, or issue at hand emerged:

• I)  Killed (by EO#2 Moratorium and/or Red Tape Review)
• II)  To be Killed (new targets identified by Red Tape Review)
• III) Kills in Progress (targets already teed up by DEP Stakeholder review)
• IV)  Targets of DEP Transition Report
• V)  Other Likely Victims
• VI)  Progress Denied – what won’t get done in 2011

I) Rules or Programs Already Killed

As we recall, on his first day in office, Governor Christie issued Executive Order #1 which established a 90 day moratorium and forced reconsideration of about 23 DEP proposed rules in the pipeline.

From what I can tell, it looks like only 9 or 10 of those proposals were adopted  before they expired. Among the most prominent rules killed were new proposed green house gas monitoring/reporting requirements; a drinking water standard for the toxic chemical perchlorate;  readoption of surface water quality standards; and various underground storage tank and toxic site cleanup requirements. The DEP’s ability to adopt ecologically based cleanup standards also quietly was eliminated.

II)  To be Killed (targets identified by Red Tape Review)

Citing the need to streamline bureaucracy and promote economic development, Appendix H of the Red Tape Report called for regulatory relief from a score of existing DEP regulations. We can expect DEP rule proposals to implement Red Tape Report recommendations, including rollbacks to the following existing rules:

• 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 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; and
• 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 federal minimums, as per the “Common sense” regulatory relief federal consistency policy in Executive Order #2..

III) Kills in Progress (targets already teed up by DEP Stakeholder review)

In addition to the above rules targeted by the Red Tape Report, and to implement the Red Tape Report recommendations and policies of Executive Order #2, DEP Commissioner Bob Martin has establish several “Stakeholder” processes. These meetings are by invitation only, off the record, and closed to the public and press. DEP programs and rules discussed for regulatory relief include the following, for which we can expect rule proposals, program plans, or Guidance in 2011:

• public access to the coast
• threatened and endangered species [Update: done: see this]
• Water Supply Master Plan (Eco-Flow Goals, water budgets, conservation, et al)
• Water Supply allocation rules
• waivers from regulatory requirements
• compliance and enforcement
• Permit coordination (one stop shopping, AKA “Let’s make a deal”)
• Toxic Site Remediation and privatized cleanup (AKA “Licensed Site Professionals” – LSP)
• stormwater management (also under attack as an unfunded State mandate under EO #4)

IV) Targets of DEP Transition Report

The Christie DEP Transition report was simply an angry radical screed. It proposed a systematic attack on DEP programs. Several of the Transition recommendations have already been implemented, as noted below (i.e. “done” or “ongoing”):

scale back or eliminate selected strategies that contribute the least to environmental improvement. (ongoing)

Reexamine regulations to ensure they are properly focused on specific, well defined goals, and minimize or eliminate peripheral requirements. (ongoing)

Eliminate the Office of Policy, Planning and Science and allocate policy and planning responsibilities to the appropriate regulatory programs (done)

Establish an advisory panel of external experts to advise DEP on matters of scientific and technological innovation. (done)

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. (done)

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. (done)

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. (done)

Require the Office of Economic Analysis to evaluate the economic and financial impacts of proposed rules or other major regulatory decisions (done)

Require the Office of Economic Analysis to evaluate the analyses of economic impacts received from interested parties during the public comment period (done)

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. (done)

The DEP must fundamentally overhaul the way development projects are regulated and streamline the permitting process (ongoing). 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 (done). 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 (done).

Create a business/project ombudsman in the Office of the Governor to create a single point of entry for complex projects. (done)

Provide that jurisdictional determinations (determinations as to whether or not a permit is necessary) may be requested and provided on-line. (ongoing)

Delegate land use permitting to the Meadowlands, Highlands, and Pinelands Commissions for the areas within their jurisdiction. (may be rejected)

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. (status unknown)

Delegate land use permitting at brownfields sites to the Site Remediation Program (ongoing – now implemented in certain cases)

Immediately suspend the inappropriate use of the Landscape Project mapping of purported Threatened and Endangered species habitat. (ongoing)

Immediately rescind Administrative Orders requiring the application of 300-foot buffers from certain streams or rivers where existing rules require a 150-foot buffer. (ongoing)

Immediately suspend the practice of conditioning permits on the imposition of conservation easements on portions of property not subject to the pending application. (status unknown)

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. (ongoing)

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. (ongoing)

Revise the Water Quality Management Planning rules (WQMP); update and improve sewer service areas through regional planning and coordinate with the State Plan. (ongoing)

Utilize the previously recommended business ombudsman to overcome existing regulatory hurdles without undermining environmental protections. (done)

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. (ongoing)

Revise the Interim Rule to limit its scope to SRRA required elements (ongoing). 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 (done).

Apply the DEP’s efforts toward compliance assistance to all site remediation professionals and responsible parties (done).

Review and revise current requirements pertaining to vapor intrusion within building structures, including how and when to test, notification, and/or mitigate (done/ongoing)

Transfer all responsibility for NRD assessment restoration and recovery to Site Remediation (status unknown).

Adopt regulations regarding NRD assessment, restoration and recovery that are transparent, stable and predictable. (status unknown)

There needs to be a recognition that agriculture, like every other business in New Jersey, has been over-regulated and burdened by DEP rules (done). Farmers should be recognized as stewards to the land and treated as partners in land preservation not potential polluters. (done/ongoing)

Revenue generation should be maximized through the use of concessions, camping and park rentals and forest management. (ongoing)

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 (done/ongoing).

There needs to be a full examination of DEP’s administrative penalty regulations to ensure they are fair and consistent (ongoing)

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. (ongoing)

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. (ongoing)

Chromium Standard: Re-evaluate the current chromium standard, taking into consideration natural baseline levels and peer reviewed scientific data. (ongoing)

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. (status unknown)

V) Other Likely Victims

Other significant policy initiatives not specifically targeted by the above that will come to a head during 2011 include:

• Diversion of clean energy funds (last year Chrisite diverted $460 million)
• revisions to the Energy Master Plan, especially regarding renewables, new fossil power plants, and nuclear power
• elimination of the Societal Benefits Charge (SBC) a small energy surcharge that funds about $800 million/year of energy efficiency and renewable energy programs
• DEP budget
• Barnegat Bay TMDL legislation
• implementation of the Red Tape legislative package regarding revisions to rulemaking procedures
• NJ’s policy on gas well hydro-fracking  and position on rules proposed by Delaware River Basin Commission
• federal and state permit review processes for the planned $5 billion new carbon capture and sequestration coal power plant in Linden
• the first round of recommendations are due from the controversia new Science Advisory Board
• Highlands “septic density standard (settlement of Farm Bureau litigation)
• Highlands water availability/deficit methodology
• Direction of the Pinelands Commission under new leadership of former NJ Builders Assc. lobbyist
• Will DEP expand Privatization to land use and water infrastructure programs?
• Will DEP propose new drinking water protections?

VI) Progress Denied – what won’t get done in 2011

Because Governor Chrisite and Commissioenr Martin have placed their entire policy focus on rolling back DEP programs and requirements to provide “regulatory relief” to corproate business cronies, here are some key new initiatives that are stalled or being totally ignored –

1. Urban environmental quality and environmental justice

2. Treatment based approach to drinking water protections

3.  Strengthening public health policies, and developing new ecological standards and cumulative impact assessment methods

4. Implementation of Global Warming Response Act

5. Preservation of NJ’s Last Remaining Natural Landscape – Delaware Bayshore

6. Control of Hazardous Air Pollutants

7. Strengthening Coastal and Ocean Protections

8. War On Sprawl

9. Environmental, Green Infrastructure, and efficiency/renewable energy investments

10. Enhancing Science and landscape planning tools

What have I forgotten? Your input is welcome!

[Closing note: in case anyone is offended, I knowingly and intentionally used what may be perceived as inflammatory “targeting” violent rhetoric. And I have no apologies for the use of the term “murderers row” to describe chemical and business lobbyists, as I think the policies they advocate increase death rates.]