The Latest Christie DEP Legacy: If This Doesn’t Warrant Legislative Oversight, Then Nothing Does

DEP Digs In Even Deeper in Fenimore Landfill Fiasco

What Has Become of the Legacy Landfill Law?

Didn’t DEP learn that allowing old closed landfills to reopen and accept more waste in order to generate funds is a very bad idea?  

[Update below]

You really can’t make this stuff up. Follow the latest foolishness in the Fenimore Fiasco.

The huge – almost unprecedented – controversy surrounding Fenimore landfill in Roxbury Township has gotten tons of media attention, emergency legislation, and significant DEP resources.

The recent continuing “in your face” campaign of strenuous protests by scores of Roxbury residents and the local group REACT have prompted Gov. Christie’s personal involvement.

Residents are outraged not only by the rotten egg smell in their town, but by how they have been treated by the DEP and completely shut out of State decisions regarding cleanup of the mess DEP made. Star Ledger reports:

“The second area of concern is with numerous aspects of the basic DEP decision-making process: the lack of transparency throughout this entire process; how this area was designated a brownfield; how Fenimore Landfill was approved to be reopened in violation of the State’s current rules and regulations; how a former felon was permitted to operate the landfill; the poorly considered decision to dump Sandy debris there; the DEP’s failure to keep the public adequately informed of the issues; and a suspicious refusal to provide soil samples of the area.”

Last summer, in one of the most aggressive, rapid, and successful legislative campaigns in NJ environmental history, well organized, well informed, and angry local activists successfully garnered rare emergency legislation, see  N.J.S.A. 13:1-125.1, known as the Legacy Landfill Law, enacted on June 26, 2013.  (see P.L. 2013, c. 69).

The bill that Gov. Christie signed into law was sponsored by Senate Environment Committee Chairman Bob Smith. Keep that in mind as we tell the story of the latest outrage in this outrageous story.

Recently, the Legislature again stepped into the fray – but this time, instead of passing emergency legislation giving DEP power to fix the problem, this time the environmental committee chairs from both Houses  (Senator Bob Smith and Assemblywoman Grace Spencer) wrote Governor Christie to demand an investigation by the Attorney General into the DEP’s handling of the Fenimore fiasco, see:

• Legislators Want AG to Investigate How State “Grossly Mismanaged” Fenimore Landfill

Given this ugly history and controversial context, the latest DEP move has me scratching my head – I am absolutely dumbfounded as to how something like this could possibly happen. Let me now explain – you really can’t make this stuff up.

As we noted, the local residents’  group REACT was the force behind passage of the “Legacy Landfill” law last June. That law requires DEP to take action, including adoption of new regulations required to implement the law.

DEP finally got around to forming a “Stakeholder” group to develop those regulations to implement the law 9 months later in March 2014.

There have been significant recent changes to how DEP develops regulations.

Specifically, Gov. Christie mandated, among other things, that DEP form “Stakeholder” groups before proposing any new regulations, under Executive Order #2.

The policy objectives of the Stakeholder process are to provide “regulatory relief” and “to prevent unworkable, overly-proscriptive or ill-advised rules from being adopted.”  – here is the applicable language from EO #2:

1. For immediate relief from regulatory burdens, State agencies shall:

a. Engage in the “advance notice of rules” by soliciting the advice and views of knowledgeable persons from outside of New Jersey State government, including the private sector and academia, in advance of any rulemaking to provide valuable insights on the proposed rules, and to prevent unworkable, overly-proscriptive or ill-advised rules from being adopted.

DEP Commissioner Bob Martin has decided that his DEP “Stakeholder” meetings required under EO #2 are to be conducted “by invitation only”.

Virtually every one of dozens of DEP Stakeholder groups are dominated by regulated industries, many with no environmental or public interest representative at all – none (you can take a look for yourself here).

So, who did DEP invited to the “Legacy Landfill” law Stakeholder rule development meetings?

Sometime in March 2014, DEP wrote this invitation letter:

So, I was curious – who did DEP invite?

I went to DEP’s website to find out. But there are no  attendees; agenda’s; meeting recordings/notes/minutes; technical support documents; and consensus or going forward rule development plans posted there.

Shockingly, after finding no information on the “Stakeholder” page of DEP’s website, I reached out to ask and neither the local group REACT or the law’s sponsors Chairman Bob Smith knew anything about these “by invitation only” DEP “Stakeholder” meetings.

How can something like that happen? Who did DEP invite? Landfill owners and operators? Christie Crony & Roxbury Mayor Rilee?

This is simply stunning arrogance and/or gross incompetence –

If something like this doesn’t spur legislative oversight hearings, then virtually nothing will.

BTW, to top it off, DEP’s invitation letter was sent by email, with this OPRA exemption warning:

This E-Mail and its contents may be Privileged & Confidential due to the Attorney-Client Privilege, Attorney Work Product, Deliberative Process or under the New Jersey Open Public Records Act.

Just curious: this letter and process came from DEP’s “”Manager of Constituent Relations”. Wonder what it takes to get fired at DEP?

 [Update – 6/22/14  – I just read this post this morning and realized that in my focus on how DEP excluded REACT, I overlooked a significant policy issue.

DEP is taking the opportunity to develop rules that would vastly expand the scope of the “Legacy Landfill” law in a way that seems intended to repeat the Fenimore Fiasco.

Specifically, the Legacy Landfill law applies only to landfills that “ceased operations” prior to 1982 – here is the law’s definition:

But the DEP letter describes a landfill initiative that is far broader than “Legacy Landfills”, but all “closed landfills”

The Department is re-opening the Solid Waste rules in order to implement requirements and controls established for legacy landfills and closed sanitary landfill facilities that accept the placement of new materials.

So, the DEP is contemplating rules for many more landfills than just legacy landfills –

Worse, it seems that the intent is not limited to merely cleaning up pollution from legacy landfills, but to allow new disposal activity  (i.e. “accept placement of new materials”) at previously closed landfills!

Didn’t DEP learn that allowing old closed landfills to reopen and accept more waste in order to generate funds is a very bad idea?  – end update]