WolfeNotes.com

I need to expand upon one point in my brief note yesterday. Consider  this an alert.

The Assembly quietly just passed what amounts to the enforcement version of the controversial DEP waiver rule (see A2584).

Recall that the main problems with the waiver rule were that its broad scope, vague standards, and lack of safeguards would provide discretion to allow the DEP Commissioner to waive many current regulatory requirements that safeguard public health and the environment.

The enforcement bill approved by the Assembly is actually broader in scope than the waiver rule and it too includes similarly vague standards. Here’s why.

The enforcement bill applies to all DEP enforcement regulations, including federally delegated programs, legislatively mandated standards, numeric and or narrative standards, and public health and safety protections, all of which are excluded under the waiver rule.

The waiver rule applies only to new future permit applications, so is limited. But the enforcement bill would apply to thousands of existing permits, which is far more significant in scope and a far greater risk to the environment than the waiver rule. And we’re talking about violations of those permits, so some negative environmental impact or harm is likely.

The bill would vastly expand the scope of the current definition of “minor violation” under the “Grace Period” law.

Under the Whitman Administration’s Grace Period” law, DEP was prohibited from issuing enforcement fines and sanctions for “minor violations”.

Back in 1995, I worked closely on that legislation. The opposition we were able to generate   basically forced Governor Whitman to issue a “Conditional Veto”. I worked with Whitman’s Counsel to develop protective CV standards in the broad bill passed by the Legislature (I still fondly recall that meeting Curtis Fisher and I had with the Front Office. I took a hard line, would not compromise, was almost thrown out of the meeting, yet I won the concessions!).

The current Burzichelli enforcement bill would vastly expand the scope of the Whitman law. The bill would do that in two ways:

first, by allowing just one of the protective criteria to be met (see boldfaced language in section 5.b. below).

Previously, in order to be considered a “minor violation”, all the criteria had to be met.  The violation must meet each of these criteria:

• not the result of the purposeful, knowing, reckless or criminally negligent conduct;
• pose minimal risk to the public health, safety and natural resources;
• not materially or substantially undermine or impair the goals of the regulatory program;
• has existed for less than 12 months prior to the date of discovery by the department or local government agency;
• The person responsible for the violation has not been identified in a previous enforcement action by the department or a local government agency as responsible for a violation of the same requirement of the same permit within the preceding 12-month period; and
•  The activity or condition constituting the violation is capable of being corrected and compliance achieved within the period of time prescribed by the department

Instead, the Burzichelli bill would allow ANY SINGLE criteria to quality as a minor violation, including voluntary disclosures (see section 5.b.):

 A violation shall be designated by the department as a minor violation if any of the categories described in paragraph (1), (2), or (3) of this subsection is applicable to the violation :

Second, the bill would create a vague and extremely broad new category of “minor violation”, i.e. “technical errors” or “omissions”.

This would cripple DEP’s ability to enforce environmental laws and regulations and invite widespread abuse.

Examples:

• if the soil sample from the lab says that toxic lead is at 900 parts per million (requiring cleanup) and the company falsely reports 90 ppm (no cleanup required), then that fraud could be considered minor; or
• The air monitoring report submitted to DEP says emissions are at 50 ppm, but the actual monitoring data is 50,000 ppm, that fraud also could be considered minor; or
• If a permit condition requires wetlands delineation or reporting or restrictions on habitat, but that information is omitted in compliance monitoring reports to DEP, then that egregious violation could be considered minor.

The potential scenarios to invoke the “technical error” or “omission” defense are infinite. 

I trust you can see the abuses that would flow from this bill.

And I haven’t even mentioned the negative implications of the “Technical manual” provisions of the bill.

Let’s hope no Senate version is introduced and that this bill is quietly killed -or people wake up and mount an opposition.

Here is the actual language from the bill (underlines and/or  boldface text is new)

2.    Section 5 of P.L.1995, c.296 (C.13:1D-129) is amended to read as follows:

5.    a.  The department shall promulgate rules and regulations designating specific types or categories of violations within each regulatory and enforcement program of each environmental law as minor violations and non-minor violations.  In designating minor violations, the department shall utilize the criteria set forth in this section.  All types or categories of violations not designated as minor violations shall be designated as non-minor violations.

b.    A violation shall be designated by the department as a minor violation if any of the categories described in paragraph (1), (2), or (3) of this subsection is applicable to the violation :

(1)   (a)  The violation is not the result of the purposeful, knowing, reckless or criminally negligent conduct of the person responsible for the violation;

(b)   The violation is based on an administrative, technical, clerical, or other non-substantive error or omission in a notice, report, manifest, or document; and

(c)   The violation is capable of being corrected and compliance achieved within 45 days; or

(2)   (a)  The violation is not the result of the purposeful, knowing, reckless or criminally negligent conduct of the person responsible for the violation;

(b)   The violation poses [minimal] no risk to the public health, safety and natural resources;

[(3)] (c)      The violation does not materially [and] or substantially undermine or impair the goals of the regulatory program;

[(4)] (d)     The activity or condition constituting the violation has existed for less than 12 months prior to the date of discovery by the department or local government agency;

[(5)  (a)] (e)  (i)  The person responsible for the violation has not been identified in a previous enforcement action by the department or a local government agency as responsible for a violation of the same requirement of the same permit within the preceding 12-month period;

[(b)]  (ii)     in the case of a violation that does not involve a permit, the person responsible for the violation has not been identified in a previous enforcement action by the department or a local government agency as responsible for the same or a substantially similar violation at the same facility within the preceding 12-month period;

[(c)]  (iii)  in the case of a violation of the “Coastal Area Facility Review Act,” P.L.1973, c.185 (C.13:19-1 et seq.); the “Freshwater Wetlands Protection Act,” P.L.1987, c.156 (C.13:9B-1 et seq.); “The Wetlands Act of 1970,” P.L.1970, c.272 (C.13:9A-1 et seq.); R.S.12:5-1 et seq.; the “Flood Hazard Area Control Act,”P.L.1962, c.19 (C.58:16A-50 et seq.) or any rule or regulation promulgated thereunder, or permit issued pursuant thereto, the person responsible for the violation has not been identified in a previous enforcement action by the department or a local government agency as responsible for the same or a substantially similar violation at the same site or any other site within the preceding 12-month period; or

[(d)] (iv)  in the case of any violation, the person responsible for the violation has not been identified by the department or a local government agency as responsible for the same or substantially similar violations at any time that reasonably indicate a pattern of illegal conduct and not isolated incidents on the part of the person responsible; and

[(6)]  (f)  The activity or condition constituting the violation is capable of being corrected and compliance achieved within the period of time prescribed by the department pursuant to subsection b. of section 3 of P.L.1995, c.296 (C.13:1D-127) ; or

(3)   The violation has not caused any actual harm to the public health, safety, or environment .

c.     [Any] Notwithstanding the provisions of any law, rule, or regulation to the contrary, any violation subject to the mandatory assessment of civil administrative penalties pursuant to subsection b., c., or d. of section 6 of P.L.1990, c.28 (C.58:10A-10.1) shall not be designated as a minor violation pursuant to this act.