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DEP Public Access Rules Must Be Blocked By the Legislature 

DEP Slogans Mask the Fact That Christie Executive Order #4 Guts State Responsibility To Protect Public Access Rights From Local Abuse

[Udate 2: 4/14/11 – Bergen Record weighs in with a good story: Environmental groups opposed to rules proposed by state on water access

Update 1: Our Country began fighting corporate power and relied on public access to rivers and ports (watch a video of the real history) .

Boston Tea Party – access to the harbor!

I don’t think I’ve seen two more misinformed and downright stupid statements by DEP in the same story.

Despite having written numerous times about how Governor Christie’s Executive Orders and DEP’s pro-business anti-regulatory policies harm protections of public health and the environment.

Despite strong criticism of DEP Commissioner Martin for his lack of qualifications, his warped economistic priorities, and vision that DEP promote economic development.

Despite exposing the false claims that protecting the environment is related to the economic recession or lack of private investment is NJ economic development.

And despite noting that proposed new DEP rules will limit public access to the ocean and to our rivers.

Still, despite writing all this and despite knowing how bad for the environment our current DEP leadership is, we never imagined that these economic issues were related in some way to the public access issues. I just never imagined that kind of warped thinking could creep into the public access issue to so subvert the public interest.

But, like looking through the wrong end of a telescope, DEP Commissioner Bob Martin and his political sidekick Ray Cantor see the (wrong) economic and private property side of the equation.

Check out these statements in today’s Bergen Record coverage of DEP’s new proposed public access rules (click to read rules):

New rules that would keep the public off industrial riverfront property and exempt the owners of those sites from contributing to a fund to build waterfront parks will take a step forward Monday.

A coalition of environmental advocacy groups say the regulations from the state Department of Environmental Protection would block public access points along the Hackensak and Passaic rivers and make it harder to rehabilitate them. DEP officials say the “common sense” rules offer balance between the public’s right to the waterfront and economic expansion by industry. …

“For existing companies, we felt that if they were trying to do some expansion, we felt that it was a tax and that was unnecessary,” Bob Martin, the DEP commissioner, said Friday. …

Ray Cantor, an adviser to Martin, said the measure is intended to help eliminate an unnecessary fee on businesses that want to expand. “If they want an enhancement to the riverside, the best way to do that is allow an industrial site to expand and pay more property taxes,” Cantor said. “We don’t need these large obligations to pay tens of thousands of dollars into a fund.”

I guess if all you’ve got is a pro-business economic development hammer everthing looks like a regulatory nail.

So maybe Bob and Ray don’t know that the public has ancient rights of acccess to rivers and the shore under what is known as “The public trust doctrine” ? (Wiki):

The ancient laws of the Roman Emperor Justinian held that the seashore not appropriated for private use was open to all. This principle became the law in England as well. In the Magna Carta in England centuries later public rights were further strengthened at the insistence of the nobles that fishing weirs which obstructed free navigation be removed from rivers.

These rights were further strengthened by later laws in England and subsequently became part of the common law of the United States as established in Illinois Central Railroad v. Illinois, 146 U.S. 387 (1892). In that case the Illinois Legislature had granted an enormous portion of the Chicago harbor to the Illinois Central Railroad.  A subsequent legislature sought to revoke the grant, claiming that original grant should not have been permitted in the first place. The court held that common law public trust doctrine prevented the government from alienating the public right to the lands under navigable waters (except in the case of very small portions of land which would have no effect on free access or navigation).

In subsequent cases it was held that this public right extended also to waters which were influenced by the tides regardless of whether or not they were strictly navigable. This concept also has been found to apply to the natural resources (mineral or animal) contained in the soil and water over those public trust lands.

Even the NJ Business and Industry Association statement contradicts the DEP logic. Note that NJBIA claims lack of public demand for access to the waterfront, not to any adverse economic impacts of DEP rules on industrial expansion: (and do we even want our rivers further industrialized?)

The New Jersey Business & Industry Association has long supported the rules changes, saying industries don’t need to be hit with fees when there is little demand for access to the waterfront near their properties.

Maybe someone can ask NJBIA how they determined that there was “little [public] demand for access to the waterfront”.

Debbie Mans of NY/NJ Baykeeper gets it right – the public must be compensated for loss of access to their rivers:

“The DEP is missing the point,” said Debbie Mans, head of the NY/NJ Baykeeper. “This fund was set up to compensate the public for being blocked from their resource: the rivers.” Other opponents include the Hackensack Riverkeeper, the Surfrider Foundation and the Ironbound Community Corp.

Under NJ’s Constitution, the Legislature has the power to strike down regulations  as “inconsistent with legislative intent”. Politically, all that is required is a Resolution that is passed by both houses – the procedure does not require the Governor’s approval.

That power – or the threat of invoking it – has been used by the business community to back DEP off strong rules to protect the environment.

Ironically, in this case, it needs to be used to protect the public interest.

So, what Legislator will step up to the plate and sponsor that Resolution?

[Update 2: Kirk Moore has his typical good story in Asbury Park Press about some of the controverial beach access and shore issues. See: New beach access rules to allow towns to propose own plans

What the hell, DEP lets polluters be in charge of toxic site cleanups and DEP Commissioner Martin says it’s DEP’s job to promote economic development.

So, why not let towns – who have a long history of limiting public access – be in charge of public accesss!

Kind of like letting oil companies write energy laws, drug companies run FDA, and the developers write local zoning.

Welcome to the New Normal at Customer Friendly and the Open for Business Christie DEP!

[Update #3 – The DEP press release provides revealing glimpses of what this is really all about.

Commissioner Martin’s statements show that public access has become a victim of not only the Christie Administration’s anti-regulatory policies, but Executive Order #4, which attacks so called “state mandates”.

In these rules, under slogans (“common sense”, “top down”, “one-size-fits-all”) and the pretext that DEP is “imposing state-dictated access rules”, DEP is eliminating a state duty to protect public access and essentially delegating that function to local governments:

“The DEP will work with towns and cities to craft access plans that make local sense and protect the rights and needs of residents and businesses, instead of imposing one-size-fits-all, state-dictated access rules. The Department, however, still has final authority to approve any municipal access plans. The plans must ultimately meet the needs of the public.”

[Update 4 – the proposal itself states that the basis lies in Christie’s Executive Orders and Red Tape Report:

The Department is guided in this effort by the standards set forth in Governor Christie’s Executive Order No. 2 (2010) which demands that rules be governed by a set of “common sense principles. The Red Tape Review Group’s Findings and Recommendations (April 19, 2010) (see http://www.nj.gov/governor/news/news/552010/pdf/20100419_rtr_final_report.pdf  determined that elements of the existing public access rule needed revision.

Excerpts – More evidence in the proposal of Christie slogans that mask a regulatory animus:

In short, the Department is transforming how it accomplishes its environmental and policy goals in recognition that results matter, and such results can be accomplished without extensive and proscriptive regulatory requirements.

Public access can better be provided by applying common sense principles of governing, working with local governments, eliminating unnecessary burdens on residents, businesses, and governmental entities, and by bringing other resources to bear to create a comprehensive public access program that is beyond merely imposing proscriptive regulatory requirements. …

The Department has established teams of professionals to work with municipal officials to put together Municipal Public Access Plans with the intent of enhancing the public’s access to tidal waters in a more comprehensive manner rather than the current, limited, purely regulatory approach.

A federal District Court judge on Thursday ruled that 113 Pompton Lakes residents can not sue Dupont for poisoning their homes with toxic chemicals. As sought by Dupont, the judge dismised the federal court case and issued an injunction blocking a state court lawsuit that had been filed as well.

Jim O’Neill at the Bergen Record wrote the story today, see: Pompton Lakes residents barred from suing DuPont

Basically, the case was thrown out because the judge found that a 2004 Settlement Agreement of a prior lawsuit included a broad liability waiver. The judge found that residents had waived their right to sue for vapor intrusion, despite the fact that they were not aware that vapor intrusion was a problem.

How could residents knowingly waive liability for risks and damages they weren’t even aware of and when information about vapor intrusion may have been witheld from them?

The judge ignored case precedent that would allow residents to sue Dupont. The opinion noted:

In general, settlement agreements will be honored absent a demonstration of fraud or other compelling circumstances.

In our view, the fact that people were poisoned in their homes for decades by a major corporate polluter demonstrates pretty “compelling circumstances”. Furthermore, there are serious questions of possible fraud, particularly in light of the chronology of events, as outlined below.

Essentially, just months after the ink was dry on the liability waivers and immediately after the binding arbitration cases all ended in March 2007, the vapor intrusion problem in Pompton Lakes was suddenly “discovered”.

We are to believe this was mere coincidence. Right. 

If this decision is allowed to stand, it will provide economic incentives to polluters to withold information about toxic risks from regulators, courts, and the public. 

I just find the whole story extremely hard to believe – the timing alone stinks out loud.

Here’s a copy of the decision– so you can read it for yourself.

Follow the chronology of the case closely, in light of the facts that:

• In 1984, Congress passed landmark legislation to amend RCRA, creating the Corrective Action Program that mandates cleanups at RCRA facilities;
• Dupont is a RCRA facility and groundwater at the Dupont site was known to be polluted by volatile organic chemicals in 1988;
• Dupont was legally bound to investigate and cleanup massive soil and groundwater pollution at their Pompton Lakes site under a 1992 EPA RCRA Corrective Action permit and a 1988 Administrative Consent Order (ACO) with the NJ DEP;
• US EPA first adopted RCRA Corrective Action Vapor Intrusion Guidance in December 2001;
• The December 2001 EPA Guidance was updated and replaced by 2002 RCRA Vapor Intrusion Guidance
• A February 2002 DEP memo warned the NJ DEP Commissioner about risks from vapor intrusion and flaws in DEP regulation:

Indoor Air from Contaminated Groundwater

The issue is relatively new as it relates to vapors from dissolved constituent plumes entering homes at above chronic levels. This issue is not an isolated incident (Wall Township) and has become an issue across the country. As more cases of this type surface it may cause the protectiveness of sites with natural attenuation remedies and the protectiveness of the groundwater quality standards to be re-evaluated.

• Based on this 2002 warning, NJ DEP adopted its own Vapor Intrusion Guidance in 2003 and updated it in 2005

The objective of the 2002 EPA RCRA Vapor Intrusion Guidance was:

The draft guidance (Evaluating the Vapor Intrusion to Indoor Air Pathway From Groundwater and Soils) examines a single exposure pathway–the “vapor intrusion pathway.” It is intended to be a screening tool to aid users in determining whether a vapor intrusion pathway is complete and, if so, whether the completed pathway poses an unacceptable risk to human health. A complete pathway means that humans are exposed to vapors originating from site contamination.

Vapor intrusion is no new discovery – the fundamental physics and chemistry are 100 years old.

By the mid 1980’s, the chemical industry fully understood the nature and magnitude of the legal liability, risks to human health, and huge cleanup costs associated with vapor intrusion, as well as the implications of EPA RCRA Corrective Action cleanup requirements.

To reduce these huge cleanup costs and legal liabilities the chemical industry adopted a strategy to attack EPA RCRA regulations.

The industry strategy was adoted in 1988 and known as “The RCRA Corrective Action Project“. Dupont was a promient player in that project.

Here’s an industry document we obtained that lays out this strategy behind “The RCRA Corrective Action Project”:

The RCRA Corrective Action Project was established in 1988 by a group of concerned Fortune 50 companies in the wake of EPA’s earliest draft corrective action regulatory proposals. Current Project members include BP, Chevron, Dow Chemical, E.I. duPont de Nemours & Co., Inc., General Electric Company, General Motors Corporation, Sunoco Inc., U.S. Steel, United Technologies Corporation, and Waste Management, Inc.

The RCRA Corrective Action Project has two main purposes. One is to advocate cleanup standards and procedures that achieve environmental benefits in a risk-based and cost-effective manner. The second is to provide unique opportunities to stay informed on critical issues and strategies through informed discussions with each other and with senior EPA and state leadership and staff, as well as through special presentations at Project meetings.

Project Goals

Throughout the 1980s and mid-1990s, both public debate and governmental action were dominated by the Superfund program. Many companies have calculated, however, that their prospective costs and liabilities for remediation of contaminated sites will be far greater under RCRA than under Superfund. Actual cleanup activity moved more slowly under RCRA, which allowed government staff to become committed to a number of policies and practices that are detailed, rigid, and unrealistic. This created critical needs for regulatory officials and industry representatives to work together constructively to make adjustments so that RCRA corrective action will be flexible, practical, and achievable. RCAP has played a major role in meeting that need.

So, in light of all this history, are we now to believe that Dupont knew absolutely nothing about vapor intrusion in Pompton Lakes until 2008?

Are we to believe that scientists and lawyers at one of the world’s largest and most sophisticated chemical companies did not know until 2008 that vapor intrusion resulted or would would result from the plume?

If Dupont’s lawyers and scientists did NOT consider the RCRA compliance obligations and the contingent liability associated with VI, then they were incompetent. If they did, then they are liars for failing to disclose that information.

And aside from EPA RCRA regulatory requirements, if Dupont scientists and lawyers ignored or were unaware of vapor intrusion risks, then they failed to honor their fiduciary duty to shareholders and comply with SEC full disclosure obligations (SEC requires disclosure of contingent liability).

So, in light of this chronology, let’s now consider applying the elements of fraud.

The elements of a cause of action for fraud are: (1) that a material representation was made; (2) the representation was false; (3) when the representation was made, the speaker knew it was false or made it recklessly without any knowledge of the truth and as a positive assertion; (4) the speaker made the representation with the intent that the other party should act upon it; (5) the party acted in reliance on the representation; and (6) the party thereby suffered injury.

Homework for the legal eagles out there:

1) During this tortuous 25 year cleanup and litigation saga, are we to believe that Dupont never made any representations – or withheld materially relevant facts – about vapor intrusion?

2) That no false or misleading representations were made, including omission of facts?

3) that Dupont lawyers and scientists always told the truth, the whole truth, and nothing but the truth about what they knew about vapor intrusion?

4) that Dupont didn’t have  a huge economic stake in disclosing vapor intrusion information to regulators and the public?

That Dupont had no interest in having the plaintiffs agree to a liability release that was broad enough to apply to vapor intrusion, and thus  an incentive and motive to mislead and have people to act in reliance on incomplete or false information about vapor intrusion risks?

That there’s not one written document in Dupont files about any of this that could emerge during discovery?

5) that regulators, the public, and plaintiffs acted in reliance on information provided by Dupont?

6) that no harm occured?

Food for thought – and appeal and criminal investigation, in our view.

From an Administration that champions cost-benefit analysis, this is particularly ludicrous 

Recreational Fishing Alliance lobbyists. Jim Donofrio (R).

Kirk Moore has a superb and what should be explosive story in today’s Asbury Park Press:  Fisheries caught in budget’s tight net – Herring catch on hold, others may follow.

Moore’s story tells the sad tale of how the shortsighted ideology and craven politics of Governor Christie – catering to the irrresponsible selfish greed of some in NJ’s recreational fishing lobby -  are harming the science and management of coastal ecosystems and fisheries.

The fisheries story is just the latest example of backtracking on ocean ecosystems. 

Governor Christie has completely ignored important recent legislation establishing a coastal and oceans ecosystem based management policy.

Christie has gone further by defunding and recommending elimination of the Coastal and Ocean Protection Council. That Council was created to scientifically guide DEP in developing and implementing the new ecosystem management policy. 

DEP has proposed rules to limit public access to the shore, and is now considering weakening coastal zone management and land use protections.

Now, the efforts of some recreational fishing lobbyists to attack and ease government restrictions on the fish they can catch – as predicted - perversely have produced exactly the opposite result. Here’s why:

Recreational fishing lobbyists rabidly attacked recent proposed legislation to establish a salt water fishing license fee.

When the salt water fishermen’s registry bill was being considered, many predicted that lack of an adequate fee would hurt both fisheries management and fishermen, and reduce the economic benefits to shore communities that flow from recreational fishing. DEP estimates the value of marine ecosystems at $5.1 billion annually.

We proposed a solution and explained that additional funding was necessary to support data collection and fisheries science required to support state and federal management decisions.

Those warning were ignored – fees were eliminated from the legislation and the Governor signed the bill into law.

Christie and Legislators would not support the Department of Environmental Protection’s recommended paltry $5/year salt water fishing license fee. The typical fisherman spends more on bait, gas, and beer in one day.

As a result, here’s what’s happening – from an Administration that champions cost-benefit analysis, this is particularly ludicrous:

UPPER FREEHOLD — Beset by a crushing workload, decimated staff and years of inadequate funding, the state Bureau of Marine Fisheries is preparing a draft plan to identify what can be jettisoned from a program that serves a $2 billion industry in New Jersey … yet gets less than 1 percent of that from the state budget.

Already there’s a plan to suspend fishing for river herring in 2012 because state biologists won’t be able to fulfill legal requirements under the coastwide herring management plan, said marine bureau chief Brandon Muffley. It’s just one of 22 plans for various species that must be kept updated under interstate and federal rules.

“By default, if you can’t prove your fishery is sustainable, you’re out of compliance,” Muffley said. River herring are the first to be set aside because biologists “need to do one for each individual river system,” he said. …

Bureau administrator Thomas McCloy said there’s already been “erosion” of some fisheries because the state cannot collect enough data. The current two-fish daily limit on winter flounder … which bait and tackle shop owners blame for destroying the traditional late winter/early spring season … “is a direct result of not having the data to defend our fishery,” McCloy said.

So, fishermen should ask Jimmy D. over at RFA why they are not allowed to catch more fish.

It’s because NJ lacks the data to support management decisions.

Next time fishermen complain about restrictive quotas, or catch sizes, or bag limits, they shouldn’t criticize the National Marine Fisheries Service (NMFS) or the Atlantic States Marine Fisheries Council (ASMFC) or the DEP.

Just call Jimmy D at RFA.