The Murphy DEP Is Out of Control In Politicizing Dupont Pompton Lakes Permit Review

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.]