WolfeNotes.com

Did the AG just make up that $200 million number out of thin air? Pull it out of a hat?

In a stunning admission, the Murphy DEP’s response to my MTBE Natural Resource Damage OPRA request claims that DEP has no documents that provided a basis to negotiate the recent $200 million settlement with Big Oil for contaminating groundwater and drinking water supplies across the state at thousands of sites with the fuel additive MTBE.

DEP replied to my OPRA request as follows:

Christie DEP Pledged Support, Manipulated Residents, And Then Weakened Protections

Murphy Administration DEP Playing Similar Manipulative Games

The same local opportunist taking the bait

Sadly, very few people remember that the very first press release issued by the historically prolific & perverse spinning Christie DEP Press Office – issued on January 25, 2010, just 6 days after Christie’s Inaugural – pledged support for the people of Pompton Lakes in their battle with Goliath Polluter Dupont: (DEP release – read the whole thing, emphasis mine)

DEP PLEDGES SUPPORT FOR POMPTON LAKES RESIDENTS AFFECTED BY MUNITIONS PLANT POLLUTION

(10/P3) TRENTON – The Department of Environmental Protection is redoubling its commitment to the residents of Pompton Lakes by working with its state and federal partners to ensure a prompt and thorough cleanup of contamination from the DuPont Pompton Lakes Works site. …

“The DEP is committed to making sure the residents of Pompton Lakes finally get the peace of mind and full protection from pollution they deserve,” said Irene Kropp, assistant commissioner for the DEP’s Site Remediation Program. “Along with our partners, we will build confidence in the residents and assure them that we are working hard to protect them and rid the community of this pollution once and for all.”

We called bullshit on this cynical crap at the time – and our predictions were right about on the money – just one example: Christie DEP Relaxes Toxic Vapor Intrusion Standards

Part I – The Christie DEP Play

As a part of the Christie DEP’s manipulative game, DEP Commissioner Martin spoke with Ella Filipone, then head of the Passaic River Coalition, and used her as a “trusted” intermediary with the residents and local groups working to cleanup the Dupont site. Ella has since passed, but its fair to say that although Pompton Lakes is located in the Passaic watershed, that the PRC organizationally did nothing on the issue of cleanup of contaminated sites and nothing at all in Pompton Lakes.

So Martin’s outreach through Filipone and PRC was dubious from the outset to anyone who was paying attention or objectively analyzing facts in a clear eyed way, without consideration of self interests or money. But it gets much worse.

Martin used Filipone to manipulate, divide and control local groups and otherwise sow chaos that undermined EPA’s efforts and provided cover for Christie DEP rollbacks. Let me explain, briefly.

At the time Martin was installed at DEP (2010), there were two groups in PL working on the Dupont cleanup:

1. a visible, active, and aggressive group known as Citizens for a Clean Pompton lakes (CCPL). CCPL met regularly and had strong leadership of former local official Lisa Riggiola. CCPL had active members and a website. CCPL was provided technical assistance by Edison Wetlands Association – at that time the state’s most active group on toxic site cleanup issues – and myself as NJ PEER (and as a writer at the Star Ledger’s NJ.Com and later here at Wolfenotes)

2. a much less aggressive, less visible and less well organized group, formed after CCPL emerged, known as Pompton Lakes Residents for Environmental Integrity (PLREI).

Here’s the Martin scam:

Commissioner Martin told Ella Filipone that he would provide a technical assistance grant to PRC and that she could provide DEP funding and technical assistance to PLREI.

Despite our warnings, the leaders of PLREI, promised DEP money, took the bait: (PLREI website)

PLTAG
 
In 2011, our organization partnered with the Passaic River Coalition to form the Pompton Lakes Technical Advisory Group (PLTAG). The PLTAG has been awarded the first ever Technical Advisory Grant by the New Jersey Department of Environmental Protection (NJDEP). We are currently completing the application and scope of work in order to review existing technical data relating to the DuPont contamination in our town. The purpose of this research is to evaluate the data and report our findings to the United States Environmental Protection Agency (USEPA), NJDEP and the general public. Our goal is to make this data more easily accessible and understandable to the residents of our community.

Due to administrative holdups at the NJDEP, this grant has taken three years to begin. We are now in the process of meeting with a Licensed Site Remediation Professional (LSRP) and will be moving forward soon. We appreciate your patience. 

At that time, CCPL was seeking EPA funding for a technical assistance grant to Edison Wetlands Association.

Martin’s game was classic divide and conquer and a transparent effort to use DEP funding to manipulate and control the funded group PLREI.

At the same time, Martin was able to undermine CCPL and deny Edison Wetlands Assc. a technical assistance grant from US EPA. Under EPA technical assistance grant funding policies, there must be a unified local group to receive the EPA funding – EPA does not fund internecine local political fights. Martin knew that.

The result of Martin’s ploy was to create tension and conflicts between PLREI and CCPL such that a unified voice could not emerge and a focus on consensus issues drive the debate. The confusion muddied the media coverage and often let DEP and/or EPA off the hook because the two groups could never agree on the issues or an overall strategy.

The conflicts got so bad that EPA Region 2 Administrator Judy Enck’s political hack Lisa Plevin (former senior aid to US Senator Lautenberg) strong armed the leaders of CCPL to fall in line, tone it down, stop criticizing EPA, and consolidate with and behave more like PLREI. I attended these meetings and know this first hand. It was disgusting.

And I blame the leader of PLREI for all this – which I repeatedly warned him would happen.

Even today, 8 years later, PLREI still can’t or won’t admit that they are duped by Martin’s DEP:

Due to administrative holdups at the NJDEP, this grant has taken three years to begin.

Even today, PLREI still seek to:

We are now in the process of meeting with a Licensed Site Remediation Professional (LSRP) and will be moving forward soon.

LSRP’s are corporate tools. They won’t rat out the whole game for a small contract with PLREI.

The technical assistance they someday may get from a LSRP will be nothing like the technical assistance that should have been provided by Edison Wetlands to CCPL.

Part II – The Emerging Murphy DEP Play

Fast forward 8 years – that same local leader that still heads PLREI fell for a very similar scam by the Murphy DEP, see:

• DEP’s Latest Dupont Scandal
• The Murphy DEP Is Out of Control In Politicizing Dupont Pompton Lakes Permit Review
• NJ Gov. Murphy Just Compared Dupont Pompton Lakes To Love Canal – So What Is He Going To DO About It?

Here’s that sad repeat story.

This PLREI leader somehow managed to ask Gov. Murphy a question on a radio call in show. Murphy promised that Acting DEP Commissioner McCabe would call him. McCabe called. We don’t know what PLREI asked for.

McCabe then directed her Chief Of Staff, political operative Eric Wachter to get back to the PLREI leader.

At the time, I was out of the loop camping and hiking in the deserts of Arizona, but would get scattershot email discussions of CCPL folks when I came to town for supplies.

The group seemed confused about their inability to get a copy of the September 2017 public hearing transcript on the Dupont groundwater pilot study. The discussion was mis-focused on this minor transcript issue. There even was talk that PLREI could convince DEP Commissioner McCabe to grant them a favor and get them this transcript.

I told them that DEP was legally required to provide a copy – all they had to do was file an OPRA records request for it.

I warned them that continuing to ask for Superfund designation by EPA would let Gov. Murphy and DEP off they hook – they would simply point the finger at Trump EPA. Trump EPA would never list on Superfund and if they did it would only be to protect Dupont. Pruitt installed a Dow/Dupont lawyer to head Superfiund and other chemical safety and cleanup programs.

I warned that the Bergen Record’s “Toxic Secrets” whitewash and revisionism – which allowed Obama RA Enck to spin and claim she supported Superfund listing (but did nothing to make that happen) laid the media narrative and political groundwork for Gov. Murphy and DEP Commissioner McCabe to look like heroes in seeking Superfund listing, while ignoring State DEP powers, and that as a result of these political games and media narrative, that nothing would get done. That seems to be the emerging Murphy DEP play.

Instead of wasting a demand on the transcript issue, I advised them to raise the bar and make a set of substantive demands, lest they get manipulated and used – again. Big stuff like this:

1. Issue an Executive Order directing DEP to act as follows, within 30 days:

2. NJ DEP must assume direct oversight of all facets of the cleanup of the Dupont PL site under NJ cleanup laws;

3. NJ DEP Commissioner McCabe must revoke the 1988 ACO – here’s the basis to do that, from DEP boilerplate ACO document: (DEP has other enforcement authority as well)

IX. Reservation of Rights

35. The Department reserves the right to unilaterally terminate this Administrative Consent Order in the event that the Department determines that [Person] has violated the terms of this Administrative Consent Order.Before the Department unilaterally terminates this Administrative Consent Order, the Department shall notify [Person] in writing of the obligation(s) which it has not performed, and [Person] shall have thirty (30) calendar days after receipt of such notice to perform such obligation(s).

In place of the ACO, DEP must issue a Spill Act Directive to Dupont, which lays out enforceable technical requirements, deadlines, compensation for DEP oversight costs, and enforcement penalties.

4. Using Dupont’s money, DEP must hire contractors to conduct the remaining cleanup at the site.

5. DEP must reopen the partial Natural Resource Damage settlement with Dupont negotiated by former DEP Commissioner Brad Campbell. That sweetheart deal was corrupt, provided no benefits to Pompton Lakes, and actually allowed Dupont to donate contaminated land (see Bergen Record story: Dupont deal gave state more tainted soil

Bill Wolfe of the Public Employees for Environmental Responsibility’s New Jersey chapter agreed. “DuPont got a sweetheart deal and DEP didn’t do their homework,” Wolfe said. “The deal must be renegotiated and DuPont forced to pay fair compensation, especially to Pompton Lakes residents who have suffered for decades.”

DEP can use the soon to be completed US FWS’s NR damage assessment as part of the basis for additional NRD compensation $.

6. DEP must threaten – and, if Chemours/Dupont  is intransigent – collect treble damages authorized by the NJ Spill Act.

Well, as I’ve written, they’re on the road to getting screwed again – and are ignoring my suggestions and following the “Strategy” of the same individual and playing right into the emerging DEP sham.

Fool me once, shame on you. Fool me twice….

[Soon to come: Part II – “Good Girl Gone Gulch”- or – “An Activist and Woman At Yale” (h/t to. Yalies William Buckley and Gus Speth)

And there’s nothing sexist in the above.

Given the current climate on these issues, let me explain.

I spent a month in and around the deserts and mountains of Bisbee Arizona – the local bumper sticker is “Like Mayberry on Acid”. It’s an old copper mining town with lots of history, especially labor battles and union organizing. The core of downtown is “The Gulch” or “Brewery Gulch”. Old school bars and a good local brewery.

A local store sells tee-shirts and other cool stuff – probably the best is “Good Girls Gone Gulch”.

That’s it – with respect to the Yale allusion – you’ll soon see.]

Settlements executed and approved by the Court months ago – what explains delay?

Disclosure of methodology for calculating economic damage to natural resources is key

The DEP just requested an unexplained delay in complaint with the Open Public Records Act (OPRA) 7 day statutory deadline for response. In a March 23, 2018 email, DEP’s OPRA office wrote:

The New Jersey Department of Environmental Protection, Office of Record Access received your Open Public Records Act (OPRA) request on 3/14/18 to which the above tracking number was assigned. As such, the seven (7) business day deadline (due date) to respond to your request is 3/23/18.

Your request requires additional time beyond the due date because of the time required to search for the responsive records. Your request requires an extension of time until [4/2/18].

How could DEP need more time “to search for responsive records” of this significance? Didn’t Acting Commissioner McCabe review these documents before DEP signed off on the Christie DEP negotiated deals?

DEP provided no explanation for the need for additional time. Given that the NRD settlements were executed, subject to public comments, approved by the Court months ago, and the subject of a press release by the Attorney General, the documents I requested should be readily available.

These documents are critically important to public understanding of the NRD settlements and whether the Murphy DEP is engaged in reforms to the controversial pro-polluter Christie DEP NRD program.

These documents will provide critical facts including: how many oil and gas station facilities were part of the settlements; where they are located; how extensive the groundwater pollution is, in terms of location and concentrations of pollutants; where the groundwater pollution threatens or already have contaminated municipal and private water supplies; and how DEP calculated economic value of the damaged groundwater resource.

Background

In response to recent news reports on the Murphy Attorney General’s press release announcing $200 million in natural resource damage (NRD) lawsuits with major oil companies for poisoning groundwater across the state with the gasoline additive MTBE, I filed a public records request for the underlying “damage assessments” that formed the basis of the AG’s settlements.

On March 14, I filed an OPRA for:

I request copies of the Natural Resource Damage Assessments DEP conducted for MTBE injuries to groundwater in support of the NRD Settlements that were announced by Attorney General Grewal’s 3/12/18 press release, including Sunoco, BP, Amoco, Atlantic Richfield, Shell, and all others.

The underlying damage assessment documents are critical to understanding whether the negotiated settlements reflect actual economic damages, or whether they replicate the notorious Exxon settlement, where the Christie Administration settled for pennies on the dollar of DEP’s $8.9 billion damage assessment.

The NRD damage assessment documents will also reveal the DEP’s methodology for calculating economic damages for “lost use” and related NRD injuries associated with the MTBE groundwater pollution.

NJ Courts have struck down DEP NRD lawsuits due to DEP’s failure to promulgate such a methodology in regulations.

Former DEP Commissioner Brad Campbell – who revived a moribund NRD program after 8 years of neglect by the Whitman Administration – entered into a litigation settlement agreement that pledged to adopt NRD damage assessment regulations, as noted by a Deputy Attorney General:

A March 23, 2003, letter from deputy attorney general Richard Engel to Picco said the DEP “has long planned to promulgate regulations to improve the current Natural Resource Damage program” and “is currently developing its regulatory proposals, and plans to file one or more rule proposals prior to Aug. 1, 2005.”

The “forthcoming rules clearly will afford the NJ SEED plaintiffs an administrative forum, subject to judicial review, in which to present policy and legal arguments presented in or related to the pending litigation,” Engel said in the letter.  ~~~~ see:  NJ Law Journal

The DEP never followed through with Campbell’s legal commitments to adopt NRD regulations.

As a result, the failure to adopt NRD regulations was a major contributing factor in the assessment of “litigation risk” by the Christie AG, which led to a paltry pennies on the dollar settlement with Exxon.

The fact that DEP is requesting delay in response does not inspire confidence that reform of the NRD program is a  priority to the Murphy Administration, or Acting DEP Commissioner McCabe, who served as a natural resource lawyer for the US Justice Department so surely knows the significance of the issues.

We will keep you posted in terms of what DEP provides on their new April 2 deadline.

Egregious political abuse of the permit process – gross “ex parte” communications

What is Acting Commissioner McCabe – a former Judge – thinking?

[Update below]

Political appointees to the Murphy DEP have intervened in a permit process begun under the Christie Administration. The way they have intervened is totally improper.

Specifically, after a radio phone call-in conversation between Gov. Murphy and a resident of Pompton Lakes, Gov. Murphy directed Acting DEP Commissioner McCabe to reach out and “investigate”.  In response, at the direction of Acting Commissioner McCabe, a DEP political appointee – and former aid to Senate President Sweeney – Eric Wachter, now DEP Chief of Staff – reached out and is working with a handful of residents of Pompton Lakes.

There is nothing inherently wrong with that outreach, but the way Wachter has intervened is totally wrong.

Wachter has directed DEP regulatory (permit) staff to contact residents of Pompton Lakes who testified and/or attended a September 26, 2017 public hearing on a discharge to groundwater permit for a pilot study that Dupont has proposed to conduct.

Wachter directed DEP regulatory staff to provide a copy of the transcript of the public hearing – again, nothing wrong with that – and allow them to review and revise and supplement their public hearing testimony, 6 months after the public comment period closed.

Here is the DEP email to residents from DEP regulatory staff (directed by Wachter)

Review of the public hearing transcript has revealed that it may not have captured some of the comments made during the testimony phase of the public hearing.  To ensure that we address your concerns and questions about the Permit by Rule Application, I have attached a copy of the transcript to this e-mail.  I am asking that you review the statements attributed to you in the transcript on pages 25-27, and let us know if it accurately reflects your comments.  I

That is a classic political abuse of the permit process known as “ex parte communications” –

Don’t be intimidated by the fancy legalese and latin. Here is an accessible article that explains why “ex parte” communications are prohibited in regulatory (permit) decisions that are required to be based on an administrative record. Hit the link and read the whole thing:

Talking Behind the Public’s Back – The Ex-Parte Problem

We all like to be “in the know.” There are few things quite as aggravating as feeling like you’re the last person to know what’s going on and being “on the outside looking in.” That’s especially true when as a citizen you’re trying to find out what’s happening on a proposed development project that may affect your community, or possibly even your own home or business.

Yet, that’s what can happen when our government’s decision-making processes give the appearance, real or imagined, of being either one-sided or impartial, and full due process is not provided for.

In a democratic society, open, fair decision making is critical to whether the public trusts what the government is doing.

Ex parte is Latin meaning “from or on one side only, with the other side absent or unrepresented.”  In a democratic society, open, fair decision making is critical to whether the public trusts what the government is doing.

The irony is that residents of Pompton Lakes are SUPPORTING this DEP abuse, instead of simply demanding that DEP either hold a new public hearing.

Can you imagine their anger if DEP did the same ting with Dupont? i.e. quietly worked behind their backs and allowed Dupont people to supplement their testimony 6 months after the public comment period closed?

Dupont’s lawyers know that this DEP practice is blatantly illegal – therefore, in the event that DEP actually denied their permit for the pilot test, they would sue DEP and a court would blast DEP for this abuse.

Mr. Wachler at DEP is either incompetent or he is intentionally sandbagging the DEP permit review to allow Dupont to prevail and then blame a court for having to issue the Dupont permit.

What I can’t figure out is that Wachter is acting at the Direction of Acting DEP Commissioner McCabe. McCabe is not only a lawyer, but a former judge on EPA’s  Environmental Appeals Board.

Acting Commissioner McCabe from 2011 to 2014 served as a judge on the EPA’s Environmental Appeals Board, and from 2005 to 2011 she served as Deputy Assistant Administrator of EPA’s Office of Enforcement and Compliance Assurance.

She obviously knows this kind of agency behavior is strictly prohibited.

What the hell is really going on?

Who is running the show at DEP?

[Update – 3/24/18 – If DEP legitimately wants to clarify the testimony and/or transcript to better understand public concerns, then the correct way to do that is simply file a public notice announcing re-opening of the public comment period and scheduling another public hearing.

The fact that they seem to ignore the correct procedure is troubling – a big part of restoring integrity to DEP is to convince the DEP staff and the public that politics and cronyism are no longer acceptable in DEP decision-making.]

I was just recalling that I read somewhere that Gov. Murphy’s first budget allocated $5 million to “rejoin RGGI”. I even wrote DEP an email asking where all that money was going and why it was necessary:

Hank – I read that Gov. Murphy’s budget included a $5 million appropriation to DEP or BPU “to rejoin RGGI”.

How could dusting off and updating the prior regulatory proposal and adoption documents possibly cost $5 million?

Where is that money going? Consultants? DEP budget?

I figured that it must be a mistake – if not, I’d offer to write the rules to rejoin for $5,000!

So, I looked into it and sure enough, the misleading distortion and spin is coming both from Gov. Murphy (an administration that’s starting to look like the gang that couldn’t shoot straight on environmental and energy issues) and his friend, Jeff Tittel.

Tittel wrote this, which is flat out wrong:

“We also see a continuation of raiding funds from the Clean Energy Fund. The budget takes about $90 million from the Clean Energy Fund for other purposes including $80 million for NJ Transit and $5 million to implement RGGI.

The budget does NOT include “$5 million to implement RGGI.”

Gov. Murphy’s budget address is equally misleading, and, because he has lots of paid professional staff who must know better – worse than Tittel’s flat out error.

Here is Murphy’s budget address text on point (@ page 6):

The Governor fails to note that his budget, according to NJ Spotlight, proposes to divert $136 million in Clean Energy Funds, an amount that dwarfs the $5 million he proposed for the Energy Savings Improvement Program, which only applies to State government (and therefore offsets other necessary State appropriations, a zero sum game).

Tittel just took the Gov.’s misleading spin and distorted it into falsehood.

No big deal, because no media outlets picked up on it anyway.

But the lies and spin are already huge – by the Murphy administration and by his friends – and that’s a very bad sign.