Legislative Veto of DEP Waiver Rule May Be More About Politics Than Policy

Enforcement Loophole & Technical Manual Bill Is An Indicator

I was out of town and missed Monday’s Assembly hearings on the proposed Legislative veto of the DEP waiver rule, but did testify in support of it last Thursday before the Senate.

In thinking about this, a key question that came to mind is: why are the Democrats supporting the Legislative veto?

Is their support essentially institutional, based on Governor Christie’s executive over-reach and separation of powers? (this was Chairman Senator Smith’s position). This is a constitutional legal argument that is not based on the policy objectives of the DEP waiver rule.

Or is their support grounded in policy: does the legislative finding that the DEP waiver rule is “inconsistent with legislative intent” reflect a pro-environmental rejection of the Christie Administration’s pro-business and anti-regulatory policy agenda?

This would involve a broad challenge to the Governor’s “regulatory relief” policies in Executive Order #2 and repudiate DEP Commisisoner Martin’s radical change of DEP mission to include  “promotion of  economic development”. This seemed to be Senator Greenstein’s position.

This also seems to be what environmental groups are hoping and may be misreading.

Or is it – as stated by Republican Senator Beck – merely a cynical partisan political attack on Governor Christie? (the Senate Resolution is sponsored by Barbara Buono, a likely Democratic Gubernatorial candidate).

Let me suggest one indicator to watch.

While all the attention of environmental groups and the media are fixed on tomorrow’s Assembly vote on the Resolution to legislatively veto the DEP waiver rule (ACR 37/SCR 59), a technical bill (A2584) that would provide enforcement loopholes and make it more difficult for DEP to regulate business also is up.

Environmental and labor groups have made the killing the DEP waiver rule a high priority, attacking it in the Courts, legislature, and media. [Full disclosure: NJ PEER is a plaintiff in the lawsuit.]

The Democrats have responded and are about to pass concurrent resolutions that would legislatively veto the DEP rule. I support all those efforts.

But curiously, the technical manual/ loophole bill is sponsored by many of the same Democrats that probably will vote in favor of the Waiver veto Resolution, including Assembly Regulatory Oversight Committee Chairman Burzichelli (D- Oil & Chemicals).

Burzichelli also a member of the Christie Red Tape Commission and has served as the legislative point man in advancing the Christie Administration’s attack on DEP and “job killing” environmental regulations.

At the outset of the new legislative session, Burzichelli’s Committee was originally assigned the Waiver veto Resolution. Upon re-introduction, it was assigned to his Committee on February 21, 2012.

But as a sign that Burzichelli would not support it, the Resolution was transferred out on May 21 and referred to the Assembly  Environment Committee and released on the same day.

But Burzichelli seems to have extracted a political concession from Democratic leadership along the way.

Another one of his pro-business anti-regulatory bills is also up on Thursday.

And as I predicted, the legislation is flying below the radar (see: More Technical Manuals On the Way?):

While this set of issues certainly are not sexy and amenable to a sound bite, they define both the rules and equipment for playing the game – literally the stuff of how environmental protection gets done; or the how and why of DEP permitted pollution increases and destruction of natural resources.

Like a hockey player’s skates, or a golfer’s clubs, or a surgeon’s scalpel, or the primary producers in the ecosystem – essential elements that are ignored at peril (with raises a question for another post: why do these “in the weeds” issues get virtually no attention by environmentalists and media?)

In fact, I’m afraid that my own post on Technical Manuals directly led to this legislation. Let me explain.

The bill in question, A2584 [1R], would do 2 things:

• require the Department of Environmental Protection (DEP) to authorize the correction of minor technical and administrative violations of DEP permitting rules. The bill would, in particular, establish a new class of minor DEP violations; and
• amend the existing law in this area to provide that the department must comply with the provisions of the “Administrative Procedure Act” in adopting a technical manual that outlines permit application and review procedures.

The first objective opens the door to a whole new vague category of enforcement loopholes. For example, false or erroneous reporting of water pollution discharge or air emissions data now be “minor” and not subject to enforcement penalties.

[Note: the bill is an amendment of the Whitman Administration’s enforcement “Grace Period” law – reminder h/t JT. See PEER ENVIRONMENTAL AGENCY EXTENDS “GRACE PERIODS” TO POLLUTERS — Minor Violations Forgiven in Revival of Whitman Penalty Moratorium]

This is very bad policy.

The second objective – requiring that Technical Manuals be promulgated in accordance with rule making procedures creates new “red tape” and defeats the entire purpose of the original law creating Technical manuals.

Technical Manuals were created by the Legislature to provide a streamlined procedure for DEP to give the regulated community detailed guidance on how to comply with environmental regulations.

For almost 20 years, these manual have served an important purpose. As I previously wrote, here is DEP explanation of the objectives:

This manual has been produced by the Department of Environmental Protection (DEP) to make the permit process less complicated and time-consuming for you. This manual is one of a series of technical manuals produced by DEP under the requirements of the Environmental Management Accountability Plan (P. L. 1991, Chapter 422) with the goal of making the permit application process more consistent and predictable. In each technical manual, you will find summaries and explanations of policies that may not be fully described or explained in environmental laws or regulations. In addition, the manuals contain guidance on how the Department defines other standards, such as “state- of-the-art” control technologies or “best management practices”.

Unless otherwise required by federal or state law, the policies and procedures contained in a technical manual on the date an application is filed will be binding on both the DEP and the applicant.

These manuals become even more important now that the Legislature essentially banned DEP Guidance documents. Here is what’s at stake:

This would please the polluters and developers and is administratively the easiest way out.

But it would create bureaucratic and legal chaos.

It would provide far more control to the regulated community (polluters and developers) as they alone decided how to interpret and comply with regulations. Such an “anything goes” “you decide” approach to technical requirements would undermine DEP’s efforts to promote compliance and frustrate enforcement of environmental laws. Basically, there would be nothing to enforce, as the permittees basically write their own permits.

[note: during Burizichelli’s hearing on that guidance ban bill, my testimony mentioned the impact on Technical Manuals. Burzichelli’s questions to me made it clear that he knew nothing about them. The bill was amended to address my concerns.]

The only reason for this legislation to emerge now is to throw up roadblocks to DEP.

Passage of this bill would weakens enforcement and implementation of environmental laws – across the board . The bill is another bad idea geared by the “job killing” Red Tape mentality.

Let’s hope that this bill is merely a face saving political bone thrown to Burzichelli. That could be the case, because there is no Senate version so the bill could be going nowhere.

And let’s hope it is NOT an indicator that Senator Beck might be right.

We’ll be watching and keep you posted.