Court Rejects Christie DEP’s Privatization Of Regulatory Responsibilities

Court Rejects DEP Privatization of Radon Protections

Court Blocks DEP Enforcement of “Guidance” Documents

Decision Has Huge Implications For Many Privatized Programs, Including Toxic Vapor Mitigation

NJ Spotlight reports today that a NJ Appellate Court decision rejected the Christie DEP’s policy of privatization of regulatory responsibilities, with respect to radon gas mitigation systems, see:

COURT FAULTS DEP IN CHANGES TO RADON RULES

A state appeals court has faulted the Department of Environmental Protection for improperly revising rules on how it oversees companies that test for radon in homes, finding that, in essence, the DEP handed over some of its regulatory functions to firms it oversees. …

Delegating regulatory functions

“In effect, what the DEP appears to be doing, is to delegate its own regulatory functions to a private entity as, in effect, a junior partner,’’ (sic – the Court actually wrote “junior regulator”) the court said. “That delegation of a regulatory responsibility is not permissible under the law. …

Absent statutory authority, there can be no such delegation. ‘This is especially true when the agency attempts to subdelegate to a private person or entity, since such person or entity is not subject to public accountability.'” (citations omitted)).’’

Importantly, the Spotlight story failed to explain that the Court, in applying the NJ Supreme Court’s “Metromedia” decision, also rejected DEP’s enforcement of a “Guidance Document” in the absence of rule making. The Appellate Court wrote:

I’ve explained and applied that doctrine and recently written about how the DEP’s forest “stewardship” program violates the NJ Supreme Court’s  Metromedia doctrine, (hit link for that).

Perhaps most significantly, as I’ve written here several times, the Christie DEP has outsourced Climate Change Mitigation (i.e. GHG emissions reductions) and Adaptation programs to private groups, including NJ Future and Sustainable NJ. The private group NJ Future even got funded by the Christie DEP to prepare a secret plan to privatize Liberty State Park, the crown jewel of the State Park system. DEP funds elite private group NJ Audubon to prepare forest logging plans.

The Appellate Court’s decision has huge implications for many DEP programs, for two reasons:

First, many DEP regulatory responsibilities have been delegated – or outsourced – to private sector entities, a privatization policy that preceded but was actively promoted and expanded by the Christie DEP.

Second, many DEP programs are implemented via Guidance Documents. Curiously, the Democratically controlled Legislature, acting in concert to implement the Christie administration’s regulatory rollback agenda, attempted to restrict DEP’s use of Guidance documents back in 2011, see: Bill Banning Enforcement of Guidance Moves to Governor Christie’s Desk.

Why is Gov. Murphy’s DEP Commissioner dodging this issue? DEP ducked and referred the press to the Attorney General’s Office.

Over more than a decade, so much of DEP has been privatized, outsourced, and/or based on Guidance documents. Do Gov. Murphy and the Democrats want to continue to abdicate and privatize?

Or will they act quickly to assume and restore their regulatory responsibilities to protect public health and the environment?

A key example is the controversial Vapor Intrusion Guidance.

Toxic chemical vapors could be migrating into homes and buildings at hundreds of sites across the state.

The vapor issue is now in the national spotlight, because due to vapor risks, EPA recently announced an intention to begin to consider vapor intrusion as a factor in Superfund listing decisions.

But it is not just the Site Remediation Program that would be impacted.

Here are some other examples of DEP implementation Guidance:

• Highlands Act
• Drinking Water Protection Programs
• Exceptional Wetlands Designation
• Regulated Medical Waste Management
• Environmental Guidance for Local Construction Code Officials
• Watershed Management
• TMDLs (AKA, water pollution cleanup plans)
• Nitrate Dilution Modeling
• Septic Management
• Model local Stormwater, steep slope, fertilizer application, and Stream buffer ordinances
• Stormwater permitting
• Wastewater Management Planning
• Management of Solid Waste After Floods
• Recycling, Solid and Hazardous Waste Management
• Asbestos Management
• Daycare Facilities
• Schools SARS Syndrome
• Farmland Preservation Program
• Safe Schools

Perhaps thew most egregious example of privatization is the DEP’s toxic site cleanup program, which was privatized by the legislature, at the request of the Corzine administration and thenDEP Commissioner Lisa Jackson.

That delegation is very poor public policy, but, because it was done by the legislature, it is NOT vulnerable to challenge under the Court’s ruling.

But DEP has delegated numerous DEP regulatory responsibilities to the private sector, either without any DEP oversight or under the guise of the kind of self certification program that the Court rejected.

A currently controversial illustration of the DEP’s delegation to private contractors is the installation and management of toxic vapor intrusion systems in homes in Pompton Lakes, NJ. Approximately 450 homes there have been poisoned by toxic chemical vapors from the Dupont site.

Residents recently appealed to DEP to correct problems in dealing with those vapor systems and got this Kafka-esque bureaucratic runaround from the DEP regarding the title known “3rd Party Contractor Program”. According to an October 23, 2018 email from Heather Swartz, DEP Office of Community Relations (email provided upon request):

It became apparent to me … that I need to clarify the division of responsibilities for addressing the vapor intrusion issues at the DuPont Pompton Lakes Works site.  DEP and EPA are co-leads for the larger vapor intrusion pathway project, meaning both agencies have equal responsibility for developing policies and providing technical input with regard to testing and installing systems at the homes being addressed by Chemours’ contractor, HDR.  However, when the 3 ^rd  Party Contractor Program was developed several years ago, EPA was designated the lead for that aspect of site cleanup.  DEP role for the 3 ^rd  Party Contractor Program is limited to providing technical support.  Consequently, EPA is solely responsible for developing and implementing policies related to the 3 ^rd  Party Contractor Program.  This would include determining what contractors can participate in the program and what types of meetings are appropriate.

This “3rd Party Contractor Program” appears to share the same defects found by the court in terms of delegating DEP’s regulatory responsibilities to protect public health. Specifically, the Court noted the lack of accountability in private delegated programs. In the Pompton Lakes case, that lack of accountability to the homeowners is front and center.

This is a statewide problem at hundreds of toxic waste sites in NJ.

We urge our friends in Pompton Lakes to make some noise, so that media cover the issue and perhaps a lawsuit can be filed to enforce the Appellate Court’s reasoning in the radon case.

Similarly, in addition to the legal vulnerable programs highlighted above that rely on Guidance Documents  the DEP relies on private contractors – some certified, some not – in many regulatory programs, including air and water pollution control, laboratory testing, and drinking water protections.

These programs all are vulnerable to the Court’s decision – so, that decision may have opened a Pandora’s box and may begin to unravel years of DEP abdication and privatization.