Thousands of DEP Permits Unenforceable

Commissioner Martin’s Legal Order Handcuffs DEP Enforcement

[Update: 6/14/12 – Todd Bates has an excellent article: DEP cut $430,000 Parsippany fine to $0 – EPA examining why $429G penalty was eliminated

Here’s my favorite part:

But Martin’s decision “handcuffs DEP enforcement,” said Bill Wolfe, director of New Jersey Public Employees for Environmental Responsibility, part of a national nonprofit alliance of state and federal officials. Wolf asked the U.S. Environmental Protection Agency last month to investigate.

DEP spokesman Larry Ragonese said “we don’t respond to Bill Wolfe.”

EPA spokeswoman Mary Mears said in emails this week that “we are talking with the state about the concerns raised in the news release and letter” from NJ PEER and getting information. The EPA has allowed the DEP to oversee permitting and enforcement under the federal Clean Air Act.

Commissioner Martin had State Police throw me out of a DEP public hearing for no reason, and I’ve caught DEP spinmeister Larry Rangonese in numerous embarrassing lies (e.g. see this and this), so its no surprise that the press office continues to attack the messenger. end]

The over-arching environmental policy objective of the Christie Administration is to provide “regulatory relief” and slash “job killing Red Tape” (i.e. DEP regulations).

The Administration is using all the arrows in the Executive Branch’s quiver.

Whether environmental groups, the public, or the press understand it, regardless of the strength of environmental laws, most environmental protection (and destruction) occurs as a result of regulations and the enforcement of those regulations.

The integrity of the regulatory framework is supported by a complex set of legal and scientific tools and bureaucratic processes that operate mostly under the radar and behind closed doors at DEP.

We like to pierce that veil and explain what is really going on. So listen up for the latest and possibly the worst since the waiver rule.

Regulated industry is mounting a sophisticated and systematic attack on the regulatory framework (justified by slogans like “flexibility”), challenging long standing scientific and legal policies and practices.

Here’s a thumbnail sketch or general structural overview of how the regulatory system works: environmental laws/statutes  establish broad policies. The details of those policies are provided in DEP regulations. Permits are issued on a site specific basis in accordance with the regulations. Permits are far more specific than the regulations, in the much same way that regulations are far more detailed than the statutes. Permits typically include sampling, monitoring, and reporting conditions that provide mechanisms for DEP to enforce compliance with the permits. Guidance documents are a more detailed technical interpretation of the regulations – sort of a how to manual that guides both the permitting and enforcement processes.

One key tactic regulated industry have used in this attack strategy is to legally challenge any DEP action –  plan, permit, enforcement fine, Guidance document, or Technical Manual – that has not, as the lawyers say, “satisfied due process and been promulgated in accordance with rule making procedures”.

Basically, industry argues that if it doesn’t explicitly say “X” in the black letter of the text of regulations, then DEP may not enforce “X” – in permits or enforcement action (see below for specific examples of air pollution permits).

That is a radical notion intended to cripple DEP and gut environmental laws through the back door.

And that explains why the the Red Tape Commission recommended and the legislature just banned DEP Guidance documents. Industry felt that DEP was using Guidance documents to enforce requirements that were not explicitly codified in regulations.

Industry wants to force everything through the cumbersome rule making process (and then be able to lobby on the back end of the process, a move enabled by the passage of another “Red Tape” driven law to allow DEP to make “substantive changes on adoption“).

Because DEP rule writing staff resources are extremely limited and totally incapable of addressing even current workload, that industry demand would cause a huge bottleneck in the system and virtual gridlock in permitting and enforcement. (we previously documented that in addition to the initial 90 day regulatory moratorium under EO #1, the Christie DEP had proposed and adopted the fewest regulations of any Administration. We will soon update that data).

At the same time, under Executive Order #2, the DEP’s rule making policies and procedures have been radically changed to benefit industry.  So, any rules DEP does adopt, will be far weaker than current requirements and reflect industry influence allowable under new Executive Order #2 regulatory relief policies.

DEP Commissioner Martin has stood 30 years of regulatory policy on its head and agreed with industry lawyers. Martin has expanded this rule making requirement to the enforcement process.

So, see the below from our friends at PEER.

THOUSANDS OF JERSEY POLLUTION PERMITS UNENFORCEABLE — Appeal for EPA Intervention to Nix Radical Christie Stealth Deregulation

Trenton — Anti-pollution enforcement is plummeting in New Jersey because the Christie administration is erecting roadblocks to imposing fines for violating permit conditions, according to Public Employees for Environmental Responsibility, which is calling on the U.S. Environmental Protection Agency to step in.  The state Department of Environmental Protection (DEP) is employing a “harm but no foul” philosophy in which permit conditions cannot be used as the basis of fines unless they are specified in regulation, which is almost never the case.

This enforcement-neutering approach is perhaps best illustrated in a decision by DEP Commissioner Bob Martin nullifying a $400,000 fine his own department had levied for repeat major air pollution violations by a sludge incinerator in Parsippany-Troy Hills.  Martin’s rationale was that the particular air pollution permit condition was not explicitly referenced in state regulations, even though it was mandated in federal regulations governing the Clean Air Act, which New Jersey is administering.  Martin’s decision also reversed a decision by then DEP Commissioner, and now EPA Administrator Lisa Jackson upholding similar permit conditions imposed on the B.L. England electric generating facility.

While his decision was in an air pollution case, it applies to and makes all kinds of eco-permits legally vulnerable.   Martin’s Order allows violators to legally avoid fines based upon DEP permits conditions not explicitly referenced by DEP regulations.  In addition, DEP permit writers can now be pressured by industry lawyers using Martin’s decision to oppose any condition that is not reflected in the text of the regulations.

DEP issues thousands of air and water pollution and land use permits annually.  For example, the latest permit activity report showed more than 15, 000 permit applications pending, with many times more that already in effect.  Each permit typically includes a dozen or more conditions specifying how the activity or facility is supposed to be conducted in order to protect the environment.  Permit conditions usually include a range of requirements, such as monitoring and compliance reporting, operating conditions, seasonal restrictions and field practices to protect wildlife and, perhaps most importantly, technical requirements that determine the maximum allowable pollution discharge limits.

Not surprisingly, DEP fine revenue is falling by more than half.   As this revenue in turn supports DEP inspection and monitoring of polluting industries, the result is an escalating enforcement tailspin.

“This stealth enforcement rollback sinks below minimum federal standards and puts all state residents at risk,” stated New Jersey PEER Director Bill Wolfe, who is asking EPA Region 2 to exercise oversight in these federally delegated DEP programs.  “Gutting pollution enforcement is not ‘business friendly’ – it merely tilts the economic table to favor industries that cheat or cut corners to the detriment of all of us.”

Aggravating this situation is legislation signed earlier this year by Gov. Chris Christie to ban DEP reliance on guidance documents unless those manuals are codified into formal rule-making.  This has the effect of banning scores of technical directives, thus depriving DEP staff of tools to ensure precision and consistency in administering permits.

“Technical guidance documents are not sexy but they are important because they are necessary equipment for accomplishing environmental regulation.  This new law is like sending hockey players onto the ice without skates or sticks,” added Wolfe, a former DEP analyst.  “The net result, as reflected in vanishing fine revenue, is that it is becoming harder and harder to hold polluters accountable.”

Read the PEER letter to U.S. EPA

See Martin decision on Parsippany-Troy Hills sewage incineration plant