Murphy DEP Delays Response To Public Records Request On Big Oil Pollution Settlements

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.