WolfeNotes.com

McCabe Capitulates To Sweeney Arm Twisting 

A Down Payment On Confirmation?

Or Will McCabe Uphold Staff Enforcement Action?

Echoes of the “Torricelli Tour”

(L-R) Senate President Sweeney; Acting DEP Commissioner McCabe; Assemblyman Burzichelli (Source: YouTube)

When the Senate President can hold a DEP Commissioner hostage and extort a political deal to make DEP stand down on enforcement of an egregious wetlands violation, we’re beyond the rule of law and all principled governing.

NJ Senate President Sweeney – who is still holding Gov. Murphy’s nominee for DEP Commissioner hostage by blocking her Senate confirmation hearings – is now demanding that McCabe abandon an enforcement action for an egregious violation of NJ’s Freshwater Wetlands Protection Act.

I won’t rehash it here, because the nasty story is told in great detail in the following recent news stories:

• N.J. ready to tear down rural cabins it ‘didn’t know’ existed, owner says
• With wrecking crew closing in, state pulls back on plans to demolish rural cabins

Those stories reveal a well orchestrated political campaign – the first news report coming just before Gov. Murphy’s inauguration and the second one just days later. Sadly, Acting DEP Commissioner McCabe immediately halted the enforcement of the State’s wetlands laws, purportedly under her “transition review”:

“Acting Commissioner Catherine McCabe is aware of the situation and will be reviewing it, among a number of other issues she will be reviewing during the transition,” said DEP Spokesman Larry Hajna.

Strike one – that move does not inspire confidence.

Incredibly, McCabe’s “transition” review sounds a lot like the kind of review Gov. Christie DEP nominee Bob Martin conducted under Christie’s regulatory moratorium and Red Tape review process, i.e. review how to block DEP initiatives to protect the environment and instead provide “regulatory relief”.

But McCabe went far beyond a temporary halt for a transition policy review.

Last week, McCabe, who is an attorney, caved to Sweeney’s demands and toured the site with Senate President Sweeney – thereby totally politicizing an environmental enforcement action.

“I wanted Acting Commissioner McCabe to get a first-hand view of the cabins so that she can understand the perspective of the owners and the community who believe strongly they should be preserved,” said state Senate President Stephen Sweeney before the tour. “They should be given a fair opportunity to make their case to the decision-makers.”

Temporarily halting enforcement purportedly as part of a “transition review” is a bad idea, but at least it is defensible.

Taking a tour with the Senate President, press in tow, is inappropriate, reveals bad judgement, and was a huge mistake.

You can watch the corrupt humiliation on YouTube.

This issue presents a major challenge to McCabe’s integrity and credibility and leadership at DEP.

If she capitulates to Sweeney’s demands and kills the enforcement action for an egregious wetlands violation for equally egregious political reasons, she loses all credibility and the respect of DEP professionals. 

That would be fatal to her leadership of DEP.

As I’ve written before, Gov. Murphy has to get the back of McCabe and stand up to Sweeney’s abuse of power.

When the Senate President can hold a DEP Commissioner hostage and extort a political deal to make DEP stand down on enforcement of on an egregious wetlands violation, we’re beyond the rule of law and all principled governing.

The McCabe Sweeney Tour reminds me of my own humiliating Torricelli Tour.

By far the most corrupt, shameful, and embarrassing thing I ever did in my professional career was when I went to Senator Bob Torricelli’s farm in Hunterdon County to conduct a “field tour” and assure him the DEP would soon nominate the stream that flowed through his property as a “Category One” (C1) water and thereby stop nearby proposed development and keep his backyard green.

I returned to DEP Trenton HQ after the “tour” and immediately met with Commissioner Brad Campbell to advise him that I really resented him making me do that and that I’d never do anything like that again. In response, Campbell claimed that he had not ordered me to conduct the tour, but his political staffer sure made it sound like that when she set it up and essentially directed me to go there.

After I left DEP, I leaked the story to the Star Ledger, who reported a big Sunday edition page one story: Protections for Streams Guard Other Interests – and in that story, Campbell is quoted flat out denying he knew anything about the Torricelli Tour, which is a big lie, because I told him about it.

I realize that the ends don’t justify the means, but in my Tour, at least the corrupt politics were working to BETTER PROTECT the environment, not like McCabe’ Tour, which is designed to thwart enforcement of wetlands laws for an egregious violation.

Word.

Major mistakes – multiple warnings go unheeded – tragedy ensues

Crime and No Punishment

US EPA Consent Decree with International paper, Georgia-Pacific, and Milford Redevelopment LLC (12/6/16, link below)

We arrived back in Jersey just in time for what my email inbox said was the quarterly meeting of the EPA Community Advisory Group (CAG) for the Curtis Specialty Superfund site along the Delaware River in Milford NJ.

I’d previously attended CAG meetings and written about the problems with the cleanup and demolition, so I thought I’d drop in and check out the show.

But before I mention some of the issues discussed at that well attended CAG meeting (about 75 people filled the firehouse), let’s rehash some prior warnings that went unheeded, and tragedy followed:

I)  PCB & Solvent Contaminated Stream Bank Washout Risks Ignored

My first involvement at the site, on May 14, 2012, occurred after serious flooding in 2011 had washed out an unknown quantity of PCB and solvent contaminated soils into the Delaware River. So I warned (with a photo):

My primary objective in attending this meeting was to impress upon EPA the need to immediately stabilize the stream bank (see above photo).

At that time, I was not aware that EPA, USFWS, and DEP had already required that the issue be addressed. According to Arcadis Report to EPA, the consultant working for the polluters wrote:

Too little, far too late.

The PCB contaminated soil removal didn’t occur until fall 2013 – but, since EPA and DEP knew about heavy PCB contamination of the coatings area soils and stream bank steep slope and obvious flooding risks, why wasn’t this work done YEARS ago to prevent the obvious washout risk that occurred?

The EPA “Record of Decision” (ROD) notes that PCB’s were detected in sediments and stream bank soils way back in 2007. And long prior to that, it was well know by EPA and DEP that electric transformers and paper processing technology were major sources of PCB’s at the site. Lastly, of course everyone knows that the Delaware and its tributaries regularly flood and a steep stream bank is highly vulnerable to washout in a flood event:

In contrast to that, albeit downplayed, science, i.e. “may have been mobilized during subsequent high flow events”, check out how EPA spun the issue in the media: Superfund sites along Delaware River escaped major Hurricane Irene damage, EPA says.

EPA was dead wrong.

II)  Site Security Risks Ignored

Far worse than EPA and DEP mistakes to prevent the stream bank washout, those warnings including this warning, tragically which was ignored:

On February 1, 2012 we wrote that DEP had failed to enforce NJ State cleanup laws and properly secure the site:

In July 2003, Curtis Specialty Papers shut down its operations and declared bankruptcy. The facility was abandoned and left unsecured.

On May 14, 2012 we again warned about lack of basic site security measures:

CAG members repeatedly objected to my reasonable recommendations, even minor and basic stuff that would not cost taxpayers a dime, like asking for:

• installation of fences and warning signs to limit site access to kids;

On September 13, 2015 we again warned about site safety threats:

The decrepit cogeneration plant and old Crown Vantage distribution warehouse are not the only eyesores – that are health and safety threats as well – on the site. Take a look at this, perhaps just 100 feet from a lovely occupied residential neighborhood on Delaware Ave:

Sadly, tragedy struck:

Superfund site where woman died is fenced, secure, EPA says (9/13/16)

MILFORD – The Curtis Specialty Paper Superfund Site, where a woman died on Friday after falling from a catwalk, has “security surveillance, lighting and fencing to discourage trespassers,” according to a federal Environmental Protection site.

The former paper mill, located in Milford adjacent to Alexandria Township, has been closed since 2003 and became a Superfund site in 2009. Rachel Elizabeth Curry, 20, of Holland Township, was at the site with friends at approximately midnight when she fell off a catwalk near a smokestack.

This is sickening and unforgivable.

We will write about the meeting after we can get past this disgust I now feel. Although this tragedy occurred in 2016, I only learned about it last night informally and just now Googled the news story.

This kind of tragedy dwarfs the malfeasance by the corporate polluters and lack of a spine by EPA and DEP bureaucrats.

Crimes of this sort shed a whole new light on the standard corporate abuses, illustrated by stuff like this from the EPA Consent Decree (filed December 6, 2016, shortly after the tragedy) with Corporate Polluters International Paper, Georgia-Pacific, and  Milford Redevelopment LLC (aka “defendants”)

In our next post, we talk about the greed that is involved in various esoteric aspects of the “cleanup” (and who the hell is “Milford Redevelopment LLC”?)

“Keep It Green” initially opposed dedication of NRD funds, later opposed dedication of cost recovery and enforcement penalties

Acting DEP Commissioner McCabe’s testimony to the Assembly Budget Committee this week revealed that $69 million in Volkswagen enforcement fines would be diverted to the General Fund (see NJ Spotlight story).

Actually, the DEP response to Office of Legislative Service (OLS) questions let that cat out of the bag. DEP replied as follows to an OLS question about the Volkswagen money:

I find it appalling that DEP apparently had no role in negotiating the Volkswagen settlement, which McCabe blames on the Attorney General. I guess that answers troubling questions I asked about the AG’s rubber stamp of Gov. Christie’s paltry settlement with Big Oil on massive groundwater pollution:

Murphy’s Acting DEP Commissioner McCabe is an attorney and former US Justice Department natural resource lawyer, so surely she understands the legal and policy weaknesses of the Christie NRD legal policy and DEP program.

So why on earth did Murphy AG Grewal (and DEP McCabe) rubber stamp the Christie draft settlements BEFORE conducting a policy review and public process of reform, including promulgating DEP NRD regulations that the courts have found necessary?

But, more importantly, the Volkswagen diversion exposes a major error made by the Keep It Green Coalition and Legislators in the recent Constitutional Amendment to dedicate Natural Resource Damage (NRD) settlement monies. i.e. revealed in McCabe’s phrase “consistent with the disposition of all penalty receipts.”

In an effort to close a loophole and strengthen the proposed Constitutional Amendment to dedicate revenues from Natural Resource Damage (NRD) settlements, in a November 1, 2016 email to the sponsor Senator Smith (and post) I warned of exactly this problem and recommended the following amendments to dedicate enforcement penalty receipts like Volkswagen:

3. Expand the scope to include all enforcement revenues

The SCR is not precise regarding the settlements and revenues covered. For example, would a Water Pollution Control Act or Freshwater Wetlands Act settlement be included within the scope of the SCR? It appears not.

To promote the policy objectives of the SCR, all DEP enforcement revenues could be dedicated.

The other kind of settlements an revenues I asked for precision on include not only enforcement, but cost recovery and the Hazardous Discharge Site Cleanup Fund, which collected over $105 million in the last 2 years (FY’17 and FY’18, see attachments) and are not Constitutionally dedicated NRD funds.

But Senator Smith – and NJ Spotlight – were listening exclusively to the Keep It Green Coalition (KIG) and failed to amend his Resolution.

NJ Spotlight failed to even mention the issue in its cheerleading coverage.

The KIG coalition was simply too stupid to even understand the distinction between NRD settlement money, cost recovery, HDSCF and enforcement penalty receipts.

That was the second huge blunder by the KIG folks, who initially OPPOSED constitutional dedication of NRD money:

 [KIG] don’t want the public to figure out what a HUGE mistake they made by opposing dedication of Natural Resource Damage (NRD) settlement funds and expanding that NRD dedication to ALL cost recovery and enforcement settlement agreement funds.

The original introduced version of SCR84 included the NRD funds dedication. That provision could have been expanded by a simple amendment. Instead of seeking that amendment, the KIG fools OPPOSED IT ALL!

Idiots.

But in a Green version of the Peter Principle, they are swimming in millions of dollars of Foundation grants.

Media & pipeline opponents miss the point on State Water Quality Certificate powers

Gas industry clearly sees State 401 WQC power as its most serious threat

On April 10, 2018, a group of the largest fracking gas companies and the American Petroleum Institute, calling themselves the Natural Gas Council, wrote President Trump a letter, claiming that States were “hijacking” the FERC review process and “undermin[ing] the Federal Energy Regulatory Commission’s exclusive authority to approve interstate natural gas pipelines”:

The letter praised Trump’s Legislative Outline for Rebuilding Infrastructure in America and urged Trump to issue a directive to federal agencies that essentially would preempt State powers under the Clean Water Act:

The Gas Council’s letter frames and messages key issues of federalism, over-regulation, and infrastructure policy in a way that resonates with the right wing corporate interests that are driving the Trump administration, an argument that is music to their ears.

The Trump administration is likely to do the same deregulatory favors for the gas industry via FERC that the Pruitt EPA has done for coal, oil, and gas industries.

The Gas Council letter was written to Trump in an obvious attempt to influence the Federal Energy Regulatory Commission (FERC), which just began hearings to review its policy on natural gas pipelines.

The powerful gas industry – and their champions in Congress and the Trump administration – want more pipelines, more gas exports, and for FERC to expedite their current rubber stamp, making FERC approvals faster, cheaper, and more even reliable, while excluding pesky environmental groups and landowners.

Congress held hearings to send that message to FERC:

At the start of Tuesday’s three-hour hearing, Rep. Greg Walden (R-OR), chairman of the full House Energy and Commerce (E&C) Committee, said that as the nation’s generation mix shifts toward natural gas “we’re going to need more pipelines.”

“I am hopeful that Chairman [Kevin] McIntyre’s review of FERC’s procedures for evaluating applications for new gas pipelines will result in more efficient and timely decisions,” Walden said. “With our abundant shale resources, we can be entirely self-sufficient on natural gas, but we must construct new pipelines.”

The media and even NJ’s leading environmental Congressman Frank Pallone are narrowly focused on FERC and landowner interests (exercise of eminent domain).

They are oblivious to the real threat of FERC preemption of State Clean Water Act powers targeted by the natural gas industry: (gas industry daily)

But Rep. Frank Pallone (D-NJ), E&C’s ranking member, said he hopes FERC’s review of its 1999 gas pipeline certificate policy [PL18-1] will lead to greater protections for property owners.

“For years, I have expressed concern with the process FERC uses to review pipeline applications, and its tendency to green light the construction of potentially unnecessary pipeline projects,” Pallone said. “Homeowners in the path of a pipeline have little recourse to stop pipeline companies from seizing their land through eminent domain.

“It’s time for a new approach. I believe a more regional review of these projects should be implemented rather than the current process where every pipeline appears to be reviewed individually, without any consideration of the pipelines in the area.”

Meanwhile, NJ Spotlight has not reported on the Gas Council’s letter and continued its blackout of the 401 WQC issue, with a story today on the FERC review.

The Spotlight story parrots the same misfocus as the gas industry’s PR arm, see: FERC REVIEWS ITS POLICIES FOR APPROVING NATURAL-GAS PIPELINES

When will media, pipeline opponents and NJ legislative leaders address the Clean Water Act 401 WQC issue?

When will they begin to publicly call on Gov. Murphy to exercise that power to kill proposed pipelines, including PennEast?

The gas industry clearly sees that power as its most serious threat.

Gov. Murphy Has Not Revoked Christie “Regulatory Relief” Policy In Executive Orders

Policy Continuity at DEP – Sole Exception Is RGGI