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In Unprecedented Move, DEP Attempts To Divert Focus & Undermine Petitioner

DEP Claims “Non-compliance” With Illegal DEP Rules, While Failing To Provide Proper Public Notice

Posting On The DEP Website Does Not Satisfy Publication In NJ Register

Source: NJ DEP (3/17/22)

I find such lawless bureaucratic arrogance totally unacceptable and worthy of oversight and even censure.

[Update below!]

I recently filed a “petition for rulemaking” with DEP to force them to strengthen current DEP land use regulations that allow construction of new development in high wildfire hazard areas, see:

• Murphy DEP, Pinelands Commission, and Highlands Council Urged To Restrict New Development In Areas Of “Extreme” Wildfire Risk

DEP recently took a series of steps that exaggerated the risks and impacts of wildfires, including multiple press releases, dramatic media events, several social media posts (Twitter and FB), and even testimony to the Legislature by DEP Commissioner LaTourette.

The petition sought to hold them accountable to respond to the risks they claimed to exist. If these risks are real, DEP has a duty to regulate to reduce risks. If imaginary, DEP must fess up and admit the exaggeration. DEP seems very eager to use and exaggerate these alleged risks as justification for “actively managing” (i.e. burning and logging) forests, but very reluctant to rely on these risks to regulate development. DEP can’t have it both ways.

Today, DEP acknowledged receipt of this petition and filed what DEP called a “Public Notice” .

In the DEP “Public Notice”, in an unprecedented, revealing, and totally unprofessional move, before even complying with legal requirements to summarize the contents of the petition, DEP went out of their way to divert attention from the substance of the petition and attacked the petitioner and sought to undermine the petition and discredit the petitioner.

DEP claimed that the petition failed to “comply” with DEP regulations regarding the filing of petitions for rulemaking because it was not sent “electronically” to the specific email address in DEP regulations.

Note: DEP accepts petitions filed electronically by email. I provided email to not on DEP Commissioner LaTourette, but to the head of DEP’s Office of Regulatory Affairs, Gary Brower:

———- Original Message ———-

From: Bill WOLFE <bill_wolfe@comcast.net>

To: “gary.brower@dep.nj.gov” <gary.brower@dep.nj.gov>

Date: 03/09/2022 6:04 PM

Subject: Joint Petition for rulemaking

Gary – my apologies, I meant to copy you on this petition for rulemaking – see below.

I can’t recall a precedent for DEP chastising a petitioner and claiming “non-compliance”. Not only was DEP’s Notice petty, it was unprofessional.

First of all, the DEP regulations in question are not authorized by the NJ Administrative Procedure Act and in fact violate the letter and intent of that law (see reply letter to DEP below which explains these DEP legal errors).

The so called DEP regulations are illegal and unenforceable. That’s why DEP was forced to accept the petition, rather than to reject it for failure to “comply” with the sham regulations they cited.

Second, again before responding to the substance of the petition, DEP then took exception to sending the petition to NJ Legislators. (see my letter below to Senators Smith and Greenstein explaining why this was so egregiously wrong and requesting legislative oversight).

Third, DEP objected to the the (curiously un-named) individuals the petition was sent to at the Pinelands Commission and the Highlands Council. (Importantly, DEP failed to note that I also sent the petition to FEMA and EPA, given significant federal oversight issues).

The unmistakable DEP objectives in doing that right up front were three-fold:

1) to discredit the petitioner (me) as some kind of incompetent advocate;

2) to divert attention from the substance of the petition; and

3) to undermine the credibility of the petition.

In a remarkable irony, after claiming I failed to comply with sham procedural requirements, the DEP then failed to comply with the real legal requirement that the DEP provide a “Public Notice” of receipt of the petition by sending it to the Office of Administrative Law for formal publication in the NJ Register.

Instead, it appears that DEP is trying to limit the “Public Notice” to publication on the DEP website.

The statute mandates that Public Notice shall be made in the NJ Register. DEP may not adopt regulations that ignore that mandate and substitute a notice on the DEP website.

Of course, I called that out – see letters to DEP and Senators Smith and Greenstein below.

I also have a call in to the OAL staffer who oversees State agency compliance with OAL administrative requirements to request his intervention. I left a lengthy and detailed message on his voicemail, so there can be no ambiguity.

I don’t expect the lame NJ press corps and environmental community to get this deep in the weeds, but am compelled to write about it here so it will get out in the legal and policy community.

[Update: As I knew, DEP is legally obligated to publish Notice in the NJ Register – they just failed to do so in my case.

Here is the legal boilerplate that DEP uses to issue Notices of Receipt of rule petitions: (emphasis mine)

DEP did not include that legal boilerplate on my notice and instead simply stated they would publish it on the DEP website.

Here’s another example of the legal boilerplate:

I absolutely nailed them on this abuse. That’s why I took a screen shot of my “Public Notice” (see above).

DEP actually tried to fob off a fake public notice!!! They will have to fix it.  ~~~ end update]

[Update #2 – 3/17/22 – haahahahaaha! DEP was caught red handed! Good thing I took a screen shot! After I called them on it, wrote to legislators, and called OAL, DEP fixed their attempted scam!!! Take a look at what the “Public Notice” looks like now – I made it easy. They even revised the DEP website link:

Response to DEP

From: Bill WOLFE <bill_wolfe@comcast.net>

To: DEP RulePetitions [DEP], gary.brower@dep.nj.gov, shawn.latourette@dep.nj.gov, senbsmith <SenBSmith@njleg.org>, sengreenstein <sengreenstein@njleg.org>, jonhurdle@gmail.com

Date: 03/17/2022 12:01 PM

Subject: Re: Notice of Rec’t of Petition for Rulemaking

Dear DEP:

Thank you for acknowledging receipt of the subject petition. I have two issues of serious concern regarding the Department’s failure to comply with statutory requirements:

I) The Department Failed To Provide Notice To OAL Of Receipt Of Petition

The NJ Administrative Procedure Act mandates that the Department file a notice with the Office of Administrative Law for publication in the NJ Register. see: N.J.S.A. 52:14B-4(f)

“Upon the receipt of the petition, the agency shall file a notice stating the name of the petitioner and the nature of the request with the Office of Administrative Law for publication in the New Jersey Register.”

However, the Department’s Notice of receipt fails to comply with this legislative mandate. The Department stated:

“This notice and the full text of the petition filed in this matter are available on the Department’s website at

http://www.nj.gov/dep/rules/petition.html.”

The Department’s Notice  failed to state that the Act requires that the Department provide Notice to the Office of Administrative Law and publication in the NJ Register.

Mere posting of the subject petition on the DEP website does not comply with the requirements of the Act.

I demand that the DEP comply with the Act and provide Notice to to OAL as required by law and that OAL publish the petition in the NJ Register, as required by law.

II) Alleged non-compliance with DEP’s procedural requirements

As you know, as a fundamental matter of law, the Department’s regulations regarding the procedures for petitions for rulemaking may not be – either procedurally or substantively – more narrow in scope, restrictive, or burdensome than the statutory authority pursuant to which to they are promulgated (i.e the NJ Administrative Procedures Act).

Similarly, any DEP regulatory requirements may not be arbitrary or capricious and must be reasonable and supported by facts in the record.

The Department claims a lack of “compliance” by the petitioner with DEP’s regulations:

“Petitioner did not comply with N.J.A.C. 7:1D-1.1, Procedure to petition for a rule, which the Department promulgated in accordance with the N.J.S.A. 52:14B-4(f) of the Administrative Procedure Act.”

The alleged basis for this claim of non-compliance is:

“The Department’s rules state that petitions for the promulgation, amendment, or repeal of a rule by the Department shall be sent electronically to the dedicated email address identified in the rule, or in hard copy to the Office of Legal Affairs at the provided address. N.J.A.C. 7:1D-4.1(c)”

This claim has no basis in law. This claim is ultra vires and in conflict with law. This claim is arbitrary and capricious.

The Department’s regulations regarding petitions for rulemaking are authorized pursuant to the NJ Administrative Procedure Act (Act).

The Act does not mandate that petitions for rulemaking be submitted electronically to a specific “dedicated email address” or via hard copy to a specific DEP office.

The Act not only does not provide these mandates, the Act does not authorize the Department to establish such arbitrary and unduly burdensome procedural requirements, that See N.J.S.A. 52:14B-4(f)

https://law.justia.com/codes/new-jersey/2013/title-52/section-52-14b-4/

The Department’s rules are more burdensome and restrictive procedurally than the Act.The Department’s rules are not authorized by the Act. The Department’s rule violate the letter and intent of the Act, which is to provide a procedure for citizens to participate in the regulatory process.

The Department’s rules are arbitrary, capricious and unreasonable and lack a factual basis in the record, as demonstrated by the Department’s own formal receipt of the subject petition which DEP claims does not “comply” with such regulations.

I will soon submit a petition for rulemaking to demand that the Department repeal these arbitrary, capricious and ultra vires procedural requirements the Department’s response relies on.

We look forward to the Department’s compliance with the Act via filing a notice to OAL and to the timely and favorable consideration of the subject petition.

Respectfully,

Letter on legislative oversight issues 

Dear Senator Smith – I recently filed a petition for rulemaking to DEP.

Because the legislature has broad Constitutional oversight powers of the Executive Branch as well as specific veto authority of State agency regulations, and because DEP Commissioner LaTourette’s legislative testimony was a basis for the petition, I copied yourself and Senator Greenstein as Chair and Co-Chair, respectively, of the Committee of jurisdiction, the Senate Environment Committee.

In the DEP’s legally mandated formal Public Notice of receipt of the subject petition, in a highly unusual and unprofessional move, the DEP took exception to providing a copy to legislators, calling that, among others, a “procedural flaw”. DEP wrote:

“Rather, Petitioner emailed the petition to various Department employees (including the Commissioner), individuals associated with the Pinelands Commission and the Highlands Council,as well as to a State Senator and other individuals outside of the three agencies to which he directs the petition. Despite these procedural flaws,…”

I find such lawless bureaucratic arrogance totally unacceptable and worthy of oversight and even censure.

For you information, below please find a copy of my reply to DEP’s Notice. In addition to the unprofessional arrogance of objecting to providing information for legislative oversight, ironically, in asserting claims of procedural non-compliance, DEP itself appears to be in non-compliance with the procedural requirements of the NJ Administrative Procedure Act.

I urge your oversight in this matter. The DEP’s behavior is unprofessional and unacceptable.

I am copying DEP Commissioner LaTourette to enable him to assert management oversight and corrective action of whomever is responsible at DEP for this behavior and non-compliance.

Respectfully,