WolfeNotes.com

Who Derailed The DEP’s Long Delayed Modest Effort?

Today we explore two important questions:

• Who derailed the Murphy DEP’s rather modest attempt to update NJ’s State Surface Water Quality Standards?

• At what point does regulatory delay become deregulation?

With no explanation, the Murphy DEP has indefinitely postponed a “Stakeholder” meeting on long delayed updates to NJ’s Surface Water Quality Standards (SWQS). This process began about 3 years ago, and the DEP was way behind in updating SWQS at that time.

DEP relies on these “Stakeholder” meetings to precede any regulatory proposal, and the meetings typically drag on for many months, even years, as business and industry lobbyists and lawyers are given access and a platform to “kill the baby” in the crib, and defang or weaken any DEP staff attempts to put teeth in regulations, as required by the science, before they are even formally proposed for public review.

So by the time any DEP rule is proposed in the NJ Register, it has already been weakened and watered down by the running the gauntlet of industry political influence on the “Stakeholder” negotiations.

The federal Clean Water Act (“Act”) authorizes and requires that States adopt SWQS to meet the fishable and swimmable goals of the Act. The SWQS must protect human health and the existing and designated uses of a stream or river (or lakes, bays, and wetlands) from pollution. The SWQS form the basis of pollution discharge permits, pollution cleanup plans, and other restrictions on activities that may pollute our streams and rivers. States also set waterbody specific “antidegradation policies” and “implementation procedures” to prevent high quality waters from being polluted.

The Act mandates that States conduct a review of SWQS every 3 years and update SWQS to reflect current science. State SWQS are subject to US EPA review and approval, and must be as least as stringent as federal SWQS, which are called “water quality criteria”.

NJ DEP was once a leader in adopting strict SWQS, in particular by creatively using the Act’s “antidegradation” policy framework to advance strong regulatory protections.

For example, few people (or environmental groups) understand that the SWQS “antidegradation policies and implementation procedures” are what established the “Category One” (C1) high quality stream protection program and the 300 foot buffers to protect water quality. Similarly, the Highlands Act is based on the antidegradation framework. DEP’s enforcement of SWQS has killed major housing and corporate office park development projects and new and expanded sewage treatment plants and sewer lines to serve that development.

But all that regulatory innovation was done over 20 years ago during the McGreevey DEP and the leadership of Commissioner Brad Campbell (full disclosure: I was an architect of these efforts).

Since then, the DEP’s SWQS program has largely been stagnant and gone in reverse on some grounds (e.g. variances and other site specific regulatory relief).

DEP has made little or no progress in expanding the C1 program, applying the SWQS to critical land use programs, and adopting new SWQS to protect wetlands and human health from hundreds of “unregulated” pollutants.

Non point source pollution, particularly from development is not regulated under DEP’s interpretation of the SWQS. Instead, DEP arbitrarily assumes that installation of engineered “best management practices” (BMPs) automatically comply with SWQS, without any science or monitoring of polluted runoff or impacts on nearby water.

The DEP’s “Forestry BMP” is 30 years old and exempts logging and “forestry” from compliance with SWQS and other regulatory standards and permit requirements. The DEP has failed to adopt SWQS to protect wetlands.

There are hundreds of known chemical pollutants that are not adopted in and regulated by SWQS. There are no enforceable nutrient policies to prevent disasters like harmful algae blooms, fish kills, and the ecological decline or risk of collapse of Barnegat Bay.

As a result, NJ’s water quality continues to decline, risks to human health and ecosystems worsen, and polluters and developers are provided huge regulatory relief.

So, I was surpassed to be advised, just 3 weeks ago via an August 4 email, that DEP was holding a “refresher” SWQS Stakeholder meeting on September 11.

The DEP invitation included a specific and rather narrow regulatory issues agenda as well, including the following:

The anticipated SWQS rule amendments will include updates to human health criteria for toxic substances at N.J.A.C. 7:9B and addition of numeric criteria for eight toxic substances, primarily based on recommendations published by the USEPA in 2015, and new human health criteria for 1,4-dioxane, and three per- and polyfluoroalkyl substances which are commonly known as PFAS: perfluorononanoic acid (PFNA), perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS). 

(Note that the federal EPA criteria DEP is required to meet are from 2015, 9 YEARS ago.)

The DEP email emphasized that there had been no change in the issues agenda over literally several years of Stakeholder process:

This meeting features no substantial changes from the June 2022 stakeholder meetings and is intended to be a refresher. 

That really disturbed me, because over a year ago, I had objected to DEP’s narrow amendment agenda and urged Commissioner LaTourette to broaden the agenda.

Over this timeframe, I also had filed 2 formal petitions for rule making regarding SWQS. DEP denied both, ironically in part because they had NOT been subject to a Stakeholder development process. Here’s what I urged DEP to do back in August of 2023:

———- Original Message ———-

From: Bill WOLFE <b>

To: “swqs@dep.nj.gov” <swqs@dep.nj.gov>, “shawn.latourette@dep.nj.gov” <shawn.latourette@dep.nj.gov>, “Sean.Moriarty@dep.nj.gov” <Sean.Moriarty@dep.nj.gov>, Maya K van Rossum <maya@forthegenerations.org>, domalley <domalley@environmentnewjersey.org>, “dpringle1988@gmail.com” <dpringle1988@gmail.com>, Anjuli Ramos <anjuli.ramos@sierraclub.org>, “tracy@delawareriverkeeper.org” <tracy@delawareriverkeeper.org>, “kdolsky9@gmail.com” <kdolsky9@gmail.com>, Silvia Solaun <ssolaun@gmail.com>, “jonhurdle@gmail.com” <jonhurdle@gmail.com>, “fkummer@inquirer.com” <fkummer@inquirer.com>, “wparry@ap.org” <wparry@ap.org>, Robert Hennelly <rhennelly55@gmail.com>, senbsmith <SenBSmith@njleg.org>, sengreenstein <sengreenstein@njleg.org>, asmmckeon <asmmckeon@njleg.org>

Date: 08/04/2023 3:16 PM EDT

Subject: SWQS Stakeholder agenda item

Dear DEP Surface Water Quality Stakeholder Manager:

I am responding to your “refresher” SWQS Stakeholder meeting invitation email of 8/4/23.

I request that the Stakeholders meeting include an additional agenda item and that Stakeholders be provided a copy of my petition for rulemaking submitted on 9/22/22, to amend SWQS to Adopt Regulations to Address Acute and Chronic Effects of Aluminum, see:

https://www.nj.gov/dep/rules/petition/pet20220922.pdf

The Department denied this petition on 12/19/22, see:

https://www.nj.gov/dep/rules/petition/pet20220922noa.pdf

The Stakeholders would benefit from knowledge of the content on my petition as well as the bases for the Department’s denial.

Some of the underlying scientific and policy rationales in support of the petition involved the impacts of forestry on water quality. Forestry also has significant climate and carbon cycle implications. Reforms of Department’s various forest management and climate programs and policies are currently underway.

Accordingly, Stakeholders would benefit from an integration of these multiple concerns that are implicated in SWQS. 

I appreciate your prompt and favorable consideration.

Obviously, those 2023 recommendations and regulatory petitions were ignored, so upon receipt of the DEP August 4, 2024 meeting invitation, I immediately objected and fired off another email to DEP Commissioner LaTourette, with a copy to US EPA, the press, and NJ environmental groups.

This time, I included additional and more specific recommendations:

———- Original Message ———-

From: Bill WOLFE <b>

To: “swqs@dep.nj.gov” <swqs@dep.nj.gov>, “shawn.latourette@dep.nj.gov” <shawn.latourette@dep.nj.gov>

Date: 08/21/2024 11:59 AM EDT

Subject: Fwd: SWQS Stakeholder Meeting on September 11, 2024

Dear DEP SWQS staff:

I was just made aware of this Stakeholder process and would like to expand the agenda of amendments under consideration to include at least the following:

1) update aluminum criteria – acute and chronic effects. See my recent petition for rule making for the scientific and regulatory basis:

https://dep.nj.gov/wp-content/uploads/rules/petition/pet20220922.pdf

The DEP denial document suggested that an upgrade was pending. The Department wrote:

“the changes the petitioner suggests would benefit from stakeholder
engagement attendant to a thorough rulemaking process.”

https://dep.nj.gov/wp-content/uploads/rules/petition/pet20220922noa.pdf

2) update criteria to address currently unregulated contaminants known to be present in waters of the state, including drinking water source waters. See my recent petition for rule making for the scientific and regulatory basis:

https://dep.nj.gov/wp-content/uploads/rules/petition/pet20230901.pdf

The Department denied this petition (see: 55 N.J.R. 2430(a)) but never posted the denial document on the DEP website. I again urge that the denial document be posted on the website

https://advance.lexis.com/documentpage/?pdmfid=1000516&crid=63387ae6-97e8-4742-9879-4b853d07ca82&nodeid=AABAABAABAAEAADAAB&nodepath=%2fROOT%2fAAB%2fAABAAB%2fAABAABAAB%2fAABAABAABAAE%2fAABAABAABAAEAAD%2fAABAABAABAAEAADAAB&level=6&haschildren=&populated=false&title=55+N.J.R.+2430(a)&config=025154JABiMmFjYzAxMy1hNjIyLTQ0YTctOTY0NS1iOGNlMTRiYzBkNGQKAFBvZENhdGFsb2flnvGwky16hNN9rcMfcun6&pddocfullpath=%2fshared%2fdocument%2fadministrative-codes%2furn%3acontentItem%3a69PB-6GX1-DYFH-X2M1-00008-00&ecomp=bgf5kkk&prid=5e19549d-d856-4725-b036-59e241fa212c

3) Numeric nutrient criteria

4) antidegradation policy and implementation procedures

5) methods and standards to characterize and regulate groundwater and surface water interactions

6) source water protection policies and standards

7) water quality standards for wetlands

8) methods and standards to characterize, monitor, measure and regulate non-point source pollutants, particularly from agricultural lands uses and forestry

I request that the Department distribute this request to all Stakeholders for their review and consideration. I make this request now because I was unable to comment during prior SWQS Stakeholder meetings and had no ability to influence the selection of amendments to be considered. The Department failed to notify me of this SWQS Stakeholder process.

Bill Wolfe

So, who intervened at DEP to derail the scheduled September 11, 2024 Stakeholder meeting?

Was it the polluters, trying to block DEP’s proposal to update several EPA human health toxic criteria?

Or did my recommendations flag serious defects that forced DEP to rethink their issues agenda?

Or is DEP just facing too much political blowback from the “REAL” climate proposed rules and is overwhelmed and can’t fight another regulatory war on SWQS?

When will these long delayed SWQS reforms be finally proposed by DEP?

Will DEP finally close numerous loopholes in enforcing SWQS?

Does anyone care? (if you got this far, you must).

Minnesota Gov. Walz’s Environmental Record Has Been Greenwashed

The Council Is Bending The Rules To PROMOTE Warehouse Development On Farmland

The Highlands Council staff – with no objections by the Murphy administration’s DEP – is claiming that paving over and constructing a 400,000 square foot warehouse on 40 (of 52) acres of environmentally sensitive forests and farmland (development of 80% of total land) would “maintain and enhance water quality”.

And that’s a quote. But I’m getting way ahead of myself.

On July 29, the NJ Highlands Council staff recommended approval of a major warehouse development application under the guise of a “Redevelopment Area” designation of farmland and forested land in rural Lopatcong and Pohatcong Townships (read the full staff Report). It would approve construction of over 1.2 million square feet of new warehouse development.

The Council’s designation would also trigger the DEP water quality management planning rules for extending sewers to serve new development, which is something that is prohibited in the preservation area and highly discouraged in the planning area” under the Highlands Act and Regional Master Plan (RMP):

The RMP does not support extension of water/sewer service in the Conservation Zone or any of the environmentally constrained sub-zones (rear property). The service extension would only be permissible for the proposed warehouse with the approval of the Highlands Redevelopment Area.

Get that? Repeat:

The RMP does not support extension of water/sewer service in the Conservation Zone or any of the environmentally constrained sub-zones … sewer service extension would only be permissible for the proposed warehouse with the approval of the Highlands Redevelopment Area.

The public comment period was scheduled to expire on August 9 but was extended to August 30. In an unusual move that appears to be an attempt to frustrate public opposition, the Highlands Council cancelled its scheduled August 15 meeting.

This approval is the first test of the Council’s highly touted new “Warehouse Policy”, which was purported to more strictly regulate and discourage inappropriate warehouse development in the Highlands. The Council pronounced:

Warehousing Policy

As the source of drinking water for more than 70% of the State’s residents, the Highlands Region requires special protections. For this reason, the Highlands Council developed Highlands specific policy standards for siting of warehouses in the Highlands Region

• Policy Standards for Warehousing in the New Jersey Highlands Region (pdf) **NEW**

The Council’s pending approval of this warehouse “redevelopment” application vindicates my prior criticism of the warehouse policy as toothless and doomed to fail, see:

• Highlands Council Considers “Policy Standards” For Warehouses

This could be one of the worst abuses to promote inappropriate development I’ve ever seen in my 35 year career. Let me highlight just the worst abuses, which illustrate that:

• the Highlands Council is not merely ineptly failing to enforce the law and protect the Highlands forests, farms and water quality. They are actually promoting warehouse development on environmentally sensitive farmland and coaching the developers on how to exploit loopholes; (note the use of the passive voice: “it was recommended”):

The Township originally submitted a Highlands Center designation proposal including these properties. After a review of the proposal by the Plan Conformance Committee on October 5, 2023, it was recommended that the Townships amend the center petition to remove these properties and instead submit a Highlands Redevelopment Area application. This recommendation was based on the proposed redevelopment of the Phillipsburg Mall property and the lack of comprehensive center-based planning that the finding for a consistent Highlands Center would require.

The Council itself cooked up this scheme because the prior plan was not approvable. The Highlands Council – not some lawyer for developers – recommended abuse of the NJ Redevelopment law, which allows developers to skirt Master Plan and Zoning ordinances and has been abused across the State for many years to promote inappropriate developments.

How can undeveloped forests and farmland be “in need of redevelopment”?

• the Highlands Council manufactured an absurd scheme to include an exempt nearby existing Mall development in order to allow the farmland to meet “impervious surface” requirements to allow the redevelopment designation;

The Phillipsburg Mall redevelopment project is exempt from the Highlands Act and has received all local approvals. It is included in the application to reach the necessary impervious surface calculations to qualify the rear area as a Highlands Redevelopment Area.

Did you get that? The Council is allowing developers to use a Mall, which is exempt from the Highlands Act and technically not part of the “redevelopment”, to meet impervious surface (roofs, parking lots) standards on a farm!

• the Highlands Council approved a “restoration plan” that would allow destruction of 40 of 52 acres of “priority preservation” designated farmlands, with this sham claim:

Such a restoration initiative would be protective of the riparian, wetland, and open water resources on the site and would contribute to maintaining and enhancing water quality.

Did you get THAT? The Council is claiming that destruction and warehouse development of 40 acres of a 52 acre farmland and forested parcel (80% of the land) will not only “maintain” but “enhance water quality”!

This contradicts well established science – which is the basis for several DEP regulations – that shows that just 10% impervious surface leads to impairment of water quality. It also contradicts common sense: how can all that polluted runoff from a warehouse roof and heavily truck used roads and parking lot “enhance” water quality?

Does this farmland look like “an area in need of redevelopment”? The land is surrounded by forested lands in the NJ Highlands, which are supposed to be protected from development under the NJ Highlands Act:

Block 102 Lot 9 in Lopatcong (57.2 acres). The property is currently farmland with a wooded area providing a buffer along the Lopatcong Creek to the western edge. The project as proposed would consist of a 367,350 square foot warehouse with a total impervious surface of 15.38 acres. Vehicular access would be provided via internal driveways through the former mall site to US Route 22.

Here are the sensitive environmental features for 52 acres that will be converted to a warehouse: (see Highland Council staff Report recommending approval):

Take a close look at the environmentally sensitive features on this site.

• 100% – all of it – of the site is “environmentally constrained” and a “priority agricultural preservation area”.
• Over 80% of the site is a “well head protection” area. Get that? A warehouse on top of your drinking water recharge!
• Almost 30% of the site is forested.
• There is even 13.3% bald eagle critical habitat.

On top of all this, the Highlands Council is reversing prior plans and allowing an expansion of a previously approved “Center”, which did NOT include these environmentally sensitive farmlands:

Lopatcong and Pohatcong Townships are conforming Highlands municipalities located at the southernmost end of Warren County. Each sought and received Highlands Council petition approval for Preservation and Planning Area lands, along with Highlands Center designations in the 2011-2012 timeframe. The area subject to this Highlands Redevelopment Area application was not included within the previously approved Highlands Centers.

Warehouse development of 52 acres of environmentally sensitive farmland is not the entire plan the Council staff recommended approval of. It includes almost a million square feet of warehouse development on 75 acres of nearby parcels:

Block 102, Lots 9.01 and 9.03 in Lopatcong (30.58 acres) and Block 1, Lot 1.01 in Pohatcong (44.08 acres): The mostly vacant 577,000 sq. ft. Phillipsburg Mall is being redeveloped into an 833,000 square foot warehouse.

The Phillipsburg Mall redevelopment project is exempt from the Highlands Act and has received all local approvals. It is included in the application to reach the necessary impervious surface calculations to qualify the rear area as a Highlands Redevelopment Area.

The staff Report relies on an absurd form of “regional planning” (i.e. including nearby paved Mall property to allow a farm to comply with “impervious surface calculations to qualify the rear area as a Highlands Redevelopment Area”).

But it fails to consider cumulative regional impacts of truck traffic!

The staff Report relies on an old traffic study, and reaches these incredible conclusions (are they aware of the fact that a 18 wheeler truck trip to a warehouse is VERY different from a passenger car going to a mall?:

The results suggest that under the proposed build-out, trip generation would be similar to existing conditions for the weekday morning peak hour, but significantly reduced from existing conditions for weekday afternoon and Saturday midday peak hours.

The staff admit that they lack a credible traffic analysis and that their approval puts the cart before the horse:

The one-mile travel distance on Route 22 between the subject site and the I-78 interchange is in keeping with the Highlands Council Warehouse Guidelines. Assuming ample highway capacities to absorb the increase in flows, such proximate and direct access should ensure that heavy truck traffic needn’t use local roads and byways to get to or from the facility.

A much more comprehensive regional study is needed to understand the impacts of full build-out of these and all the other projects already in the ‘pipeline’ for Route 22 and I-78 on the highways’ through-lane levels of service. Highlands Council staff have discussed this issue with NJTPA and will look to work with NJPTA and Warren County moving forward.

The Council’s pending approval exposes their new Warehouse Policy as sham.

Water to supply the project would be sucked out of the Delaware River from groundwater wells (“induced recharge”), and the Council staff have no problem with this abuse and damaging precedent either:

The Highlands Council has determined that the wells Aqua uses draw essentially all of their supply from the Delaware River through induced recharge. Thus, they do not represent a consumptive or depletive water use relative to the source sub watershed.

The site is underlain by Karst geology (prone to erosion and sinkholes) which makes the required on site recharge of stormwater impossible. That alone could be a basis for denial. Yet once again, the Council issues this absurd and dangerous precedential finding:

Due to the presence of Karst Topography, no recharge on site is proposed. The development should provide for 100% of the average annual pre-construction groundwater recharge volume elsewhere in the same subwatershed.

Elsewhere? Like where? Somewhere over the rainbow?

Yet despite all these major flaws – which individually should be fatal flaws and a basis to deny the application – the staff Report finds the redevelopment area consistent with the Highlands Act and RMP.

The primary basis for that consistency determination is fatally flawed by allowing the impervious surfaces of the Mall to qualify the farmland as eligible for redevelopment are designation.

The other primary basis for approval clearly elevates sham economic development arguments over protection of natural resources, community character and water quality, forest, and farmland.

Here it is – and it reads like it was written by lawyers for the developer:

d. Given that redevelopment is a significant opportunity for sustainable economic development and smart growth in the Highlands Region, this proposed redevelopment project was reviewed regarding consistency with RMP policies and objectives relevant to smart growth and sustainable economic development. The RMP calls for economic development that is “sustainable over time,” and not dependent on “development of undeveloped lands.” The Highlands Act calls for the RMP to “promote compatible…uses and opportunities within the framework of protecting the Highlands environment.”

e. Designation of the proposed Highlands Redevelopment Area provides for beneficial use of the site. By reusing and redeveloping previously disturbed areas, economic investment and community development within the framework of smart growth is assured. The project promotes smart growth policies by maintaining land use patterns, balancing economic development with resource protection, and providing an equitable distribution of the costs and benefits of redevelopment. The proposed parking lot expansion complements the existing development pattern of this area.

The Highland Act does NOT authorize or direct the Highlands Council to “balance” economic development and resource protection. It is heavily weighted toward protection. The word “balance” is used just twice in the Act, and the term refers only to a “balanced transportation system”, not balance of economic development and protection. (I know, I wrote portions of it and was part of a very small team that drafted the introduced version of the bill.)

The farmland parcel of land is not “previously disturbed area”, so that’s just a falsehood.

Oh, and of course, leaving the worst for last, there was absolutely NO CONSIDERATION of any energy demand, renewable energy potential, and climate impacts associated with this massive development project.

[End Note: Clarification: The staff Report’s recommended approval with conditions must be voted on and approved by the Highlands Council. That must be done in a public hearing. The staff report was signed off on by Executive Director Ben Spinelli and the approval makes it much harder to the Council to vote it down and creates legal vulnerabilities if they don’t do it correctly with the proper basis. The Council has not voted on the recommended approval. My apologies for creating confusion here.]

A friendly reader shot me an email in response to yesterday’s post.

This reader took exception and questioned why I referred the misconduct of a State government official to the Office of Attorney Ethics (OAE), instead of some government agency with authority over State officials. This reader wrote:

how do you know office of atty ethics handles actions by govt employees. it may only handle attorneys in private practice or those before supreme court. you are complaining about a govt employee action. who to your knowledge keeps govt employees honest and govt agencies honest at the nj state level? who is supposed to do that? anybody?

So I clarified my reasons for going to OAE. Basically, there is no other State agency with jurisdiction to address the misconduct I was troubled by: the AG’s Office of Public Integrity enforces criminal misconduct, and there was no crime involved. The State Ethics Commission enforces the State Ethics law, which does not regulate the conduct I was troubled by. So I went to OAE to address the conduct via professional ethics.

The reader was not satisfied with that response, and fired off this comment:

is there a law that should be in place where citizens outraged by lies can file. maybe we need new laws on the outrageous conduct of govt employees?

Hahhahaaha! Imagine that! That Office would have one hell of a tremendous workload!

But instead of laughing it off, I provided a serious closing observation of what should have happened to DEP Commissioner LaTourette, if we had a functioning democracy, which saddens me:

The legislature could conduct oversight and censure him, but both Houses are controlled by D’s so they won’t.

The Governor could reprimand or fire him, but he won’t because the lies protect the Gov. politically.

The entire DEP Management Team could resign in protest or blow the whistle, but they won’t because they have cushy jobs making good money with great benefits and a pension.

The press could expose him and criticize the lies, but they won’t because they too are corrupt and lazy and stupid and they don’t see reporting on and correcting lies as their job.

Environmental groups could call him out but they won’t because they too are either stupid or corrupt and want to keep the Foundation and DEP grant money flowing.

Disgusting all around.

No integrity anywhere.

And so it goes.

Alleged Facts And Ethics Violations Are Not Challenged

OAE Asserts An Absurd Legal Basis For Dismissal

The NJ Bar Association’s Office Of Attorney Ethics (OAE) “declined to docket” “at this time” the ethics complaint I filed against Murphy DEP Commissioner Shawn LaTourette (to read my August 1, 2024 complaint hit this link).

The OAE “declination” is so seriously flawed and in error, that it raises issues of either professional incompetence or political interference. It was issued on the same day the complaint was filed, so there was not even a cursory review conducted by OAE. Instead, OAE asserted a sham basis to decline.

In August 1 and August 20 letters, the OAE stated the basis for their decision.(hit this link to read the applicable OAE regulations).

Importantly, neither OAE letter challenged the facts or the ethical violations I alleged.

Instead, the OAE misinterpreted my complaint as an air pollution permit dispute (instead of an ethics matter). The OAE erroneously characterized the target of the complaint as regulatory action by DEP (instead of false, misleading and unethical statements by DEP Commissioner LaTourette). And the OAE relied on a legal interpretation of the applicable ethics regulations which is absurd on its face, as I discuss below.

In the August 1 letter, the OAE stated the following: (boldface mine):

NOTICE THAT DOCKETING IS DECLINED ON THE BASIS OF SUBSTANTIAL SIMILARITY OF PENDING LITIGATION PURSUANT TO R.1:20-3(f).

It is the determination, pursuant to R. 1:20-3(f), to decline to docket the grievance as a matter of discretion, where the criteria of the Rule are presented.

(f)Related Pending Litigation. If a grievance alleges facts that, if true, would constitute unethical conduct and if those facts are substantially similar to the material allegations of pending civil or criminal litigation, the grievance shall be docketed and investigated if, in the opinion of the secretary or Director, the facts alleged clearly demonstrate provable ethical violations or if the facts alleged present a substantial threat of imminent harm to the public. All other grievances involving such related pending civil and criminal litigation may be declined and not docketed. If the matter has already been docketed when the related pending litigation is discovered, the matter may be administratively dismissed, provided the matter is still in the investigative stage. The grievant shall be informed in writing of any decision, together with a brief statement of the reasons therefor and a copy of any Court Rule or written guideline supporting declination. Once a formal complaint has been filed, the matter shall not be dismissed nor held in abeyance pending completion of the related litigation, unless so authorized by the Director. Whenever an attorney is a defendant in any criminal proceeding, the Director shall docket the matter and may, in the Director’s discretion, investigate and prosecute the disciplinary case.

I have determined not to docket the grievance at this time (my emphasis), because related litigation is ongoing (cite). After the conclusion of the pending litigation, you make choose to resubmit a new grievance against the attorney, or to refile the same grievance.

I challenged their decision as a “a mischaracterization and misinterpretation of my grievance” and a misinterpretation and flawed application of the OAE regulatory term “related pending civil and criminal litigation” and requested reconsideration. I wrote:

Please be advised that this is purely a matter of law and ethics, not merely a policy dispute:

I was NOT referring to the DEP’s pending regulatory decisions in that matter, and explicitly stated that this was NOT a policy dispute.

My grievance is based on Commissioner LaTourette’s knowingly false statements. As you know, attorney ethics prohibit false representations of the facts and law. This is unprofessional and dishonest behavior that warrants ethical sanction.

I also called and left 2 detailed questions and statements on the OAE phone line.

On August 20, the OAE replied to respond to my criticisms and to clarify their decision.

OAE doubled down on their initial errors and made an additional misinterpretation of my complaint. OAE wrote:

This letter is in further reference to our letter to you of August 1, 2024 declining to docket your grievance on the basis of substantial similarity of pending litigation pursuant to R. 1:20- 3(f), as well as your phone call of this date requesting clarification of the declination.

Please be advised that your grievance references “ a pending Clean Air Act Title V. Operating Permit Modification sought by permit applicant Passaic Valley Sewerage Commission.” Pending litigation is meant in its broadest sense to encompass any pending litigation or pending agency or governmental action as referenced in the body of your grievance. The Office of Attorney Ethics is not the appropriate body to address your dispute regarding the actions of the New Jersey Department of Environmental Protection.

“pending agency or governmental [permit] action” is NOT “pending civil and/or criminal  litigation”. And notice how the OAE omitted the terms “civil and criminal” that are used in the applicable regulation.

The compounding series of errors is incredible.

How could the OAE misconstrue an ethics complaint directed at an individual lawyer, the DEP Commissioner, for alleged false and misleading public statements, with a complaint targeted at the DEP involving a permit decision? (especially when my complaint anticipated this evasion and specifically stated that this was NOT about a policy dispute with DEP).

Worse, it boggles my mind how an OAE lawyer could interpret the phrase “related pending civil or criminal litigation” within the meaning of R. 1:20-3(f) as applicable to a regulatory permit process?

In addition to the blatant mischaracterization of my complaint, this kind of egregious legal error (i.e. “litigation” does not mean a regulatory permit process) suggests that OAE lawyers are incompetent or that there was political intervention to block OAE enforcement against a politically powerful lawyer.

When I wrote to challenge this blatant legal error, the OAE informed me that the regulations prohibit appeals of OAE decisions to decline to docket (investigate) ethics complaints (which OAE calls “grievances”).

That all amounts to an abuse of process, as far as I’m concerned.

Regardless, given that the complaint was dismissed “at this time“, I plan on refiling the complaint after the PVSC permit matter is resolved.