DEP Makes Token Gestures And Minor Concessions To Strong Public Criticism
DEP Masks The Identity Of Public Commenters And Specific Grounds For Opposition
DEP Makes No Commitments To Reform The Flawed NRD Program
The Murphy DEP today finalized the controversial sweetheart “Natural Resource Damage” (NRD) settlement with massive corporate polluter BASF (see the typically spun DEP Press Release).
That proposed NRD settlement generated strong public opposition, particularly by the people of Toms River, who had no role in negotiating it or awareness of the deal and were blind sided by its public release by DEP.
People in Toms River were particularly outraged that the DEP allowed BASF to retain and develop about 250 acres of the toxic site.
I submitted extensive critical public comments to DEP (e.g. see:
The DEP responded to “relevant” public criticism by minor renegotiated revisions, including:
- DEP increased their own revenue from $100,000 to $500,000 for natural resource damage assessment and project oversight costs
- an additional 50 acres were designated for conservation, environmental compliance, and public access
- BASF must provide unspecified additional funding for long-term maintenance of the restoration projects outlined in the agreement, and that maintenance period was extended from 10 years to 20 years
These are token gestures, not real substantive responses to the public’s criticisms, including my own.
(We also must note that these gestures were negotiated with BASF, not unilaterally imposed by DEP. That really tells you all you need to know about the pro-corporate, anti-regulatory Murphy DEP).
The DEP also failed to make commitments to assure that the flaws in DEP’s NRD program – which produced the BASF and other flawed NRD deals, including the notorious Christie DEP Exxon pennies on the dollar deal – are corrected. Perhaps the largest flaw stems from the fact that DEP never complied with a judicial settlement agreement to promulgate NRD regulations (e.g. standards and methods to value NRD injuries) and Senator Smith’s NRD Legislative standards Task Force was abandoned due to corporate opposition.
Additionally, DEP deviated from longstanding practices in responding to public comments in regulatory matters. DEP failed to identify the specific concerns of each individual comment, the identity of the individual commenter, and the DEP’s response. This frustrates transparency and accountability and makes it impossible for the public to know exactly who DEP is being responsive to and the full nature of the public concerns. This information is required for the public to assess if the deal is truly in the public interest, as required by law.
[Update: I filed a public records request for all public comments submitted to DEP. I’ll let you know if I find anything interesting.]
Dear Commissioner LaTourette – I am now reading the Department’s “response to public comments” document for the final BASF NRD Settlement Agreement.
As you know, I submitted extensive public comments on the initial proposed settlement.
Hence, I was deeply offended by the fact that the Department – contrary to traditional legal response to public comment practices conducted in all DEP permit and regulatory matters pursuant to the NJ Administrative Procedures Act (APA) – failed to identify the individual commenter and individual comment.
This practice violates the spirit – if not the provisions – of the NJ APA as well as good government.
There is significant value in the public’s ability to understand the specifics of the individual comment, because that facilitates accountability and oversight of the Department. It allows the public to understand the magnitude and underlying technical basis of the public’s concerns. That transparency enables the public to understand if in fact the Department has been responsive to public concerns and whether the final agreement is in the public interest, as required by law.
Similarly, the identification of the individual commenter promotes transparency and accountability. It mutually holds the public commenter and the Department accountable to facts and law. It allows the public to understand the substantive interests of each individual commenter as well as exactly who the Department is responsive to.
Finally, I must admit that I have a certain personal interest in this matter, because it is clear that the Department took some of my specific criticisms under advisement and responded substantively to them via renegotiated revisions to the initial proposed settlement. As you know, my criticisms are frequently ignored by policymakers and DEP managers. Obviously, I resent that personally.
And from your frequently expressed economistic perspective, there is value in credibility and ability to influence DEP decisions – that’s why the corporate lawyers and lobbyists and public relations firms and experts and engineers get paid the big money.
I urge you to redraft the response to public comment document to identify the specific individual public comment and individual commenter as done in all other regulatory matters pursuant to the NJ APA.
Respectfully,
Bill Wolfe