WolfeNotes.com

DEP Denies OPRA Public Records Request

Secret meetings with powerful interests are anathema to transparency & accountability

The Murphy DEP denied an Open Public Records Act (OPRA) request for the calendars of private sector meetings held by Acting DEP Commissioner Catherine McCabe and her chief policy advisors, Deputy Commissioner Mans and Chief of Staff Wachter.

The DEP invoked Executive Privilege and claimed that these meetings are secret.

DEP explained the basis for their denial decision, as follows:

Your request for all meeting schedules (for meetings with other than governmental officials) and associated detailed information for Commissioner (sic) McCabe, Deputy Commissioner Mans, and Chief of Staff Eric Wachter for the period of February 1, 2008 to the present is denied on the basis that those records are considered deliberative pursuant to  N.J.S.A. 47:1A-1.1 et seq., and the non-public calendars and itineraries of  public officials are exempt from public disclosure. Public officials must be permitted to schedule private meetings and have confidential discussions about important decisions without the fact of that communication being subject to disclosure. See Gannett N.J. Partners, LP v. County of Middlesex, 379 N.J. Super. 205, 217 (App. Div. 2005) Furthermore, the New Jersey Supreme Court has acknowledged there is a legitimate public interest in keeping confidential the identity of persons consulted  by executive branch officials. North Jersey Newspapers v. Passaic County, 127 N.J. 9 (1992).

The people of NJ have a right to know who their DEP Commissioner is meeting with and what they are talking about.

The Commissioner is a public servant, paid by the people’s taxes, and works exclusively on important public matters of public health and environment. Therefore, public disclosure of her meetings with private sector individuals is essential to the public interest – such meetings never can be “private” or “secret”.

DEP meetings with private individuals also never can be “deliberative” because private sector individuals serve purely an advisory role, and are not involved in actual government decision-making and so are never engaged in actual policy deliberations.

Private individuals who meet with DEP policymakers do not have any “privacy” interests or reasonable expectations of privacy.

Under ELEC rules (see definition of “lobbyist”), anyone who meets with a policymaker is presumed to be seeking to “influence government processes” and must publicly disclose and report that meeting to ELEC. (see ELEC White Paper:

How can DEP claim these meetings are secret and deny OPRA requests when ELEC rules require disclosure and reporting?

We were led to believe that the Murphy administration was progressive and supportive of good government, and agreed that open government, transparency and accountability are foundational principles and prerequisites of democracy.

But that’s enough of the wonk stuff.

Obviously, who the DEP Commissioner meets with is a very strong indicator of not only what interests have power and influence, but what policy deliverables are offered up to “friends” of the Administration.

I’ve been around long enough to recall that the Bergen Record won a national journalistic award for their “Open For Business” series, that documented, among other things, the Whitman administration’s DEP meetings with regulated industries and tied those meetings to campaign contributions and DEP regulatory favors. (see:  “A New Genre of Environmental Reporting “).

But this issue cuts both ways.

Transparency is especially important at a time when friends of the administration are buying billboard ads praising a “New Day” at DEP (sycophants at PPA and the Highlands Coalition) and – perversely – are openly bragging about endorsing and spending “over $400,000” to elect Governor Murphy, while praising and providing cover for Murphy’s flawed “deliverable” deal (see this from NJ LCV).

Who the DEP Commissioner is meeting with and what they are talking about are important indicators of not only who has access and influence on policy, but in documenting what the policy priorities of the Administration are.

I filed the McCabe calendar OPRA request at the same time I filed another OPRA request for various public documents regarding the current ongoing negotiations to re-join the northeast Regional Greenhouse Gas Initiative (RGGI), as directed by Governor Murphy’s Executive Order #7.

The public should know not only the factual technical basis for those RGGI negotiations (e.g. the current greenhouse gas emissions inventory and derivation of the emissions cap), but who the DEP is meeting with to discuss these issues, especially if regulated corporations are involved (as they certainly are).

Of course, disclosure of meeting calendars is important information as well to determine whether the Murphy DEP is “balanced” (a word McCabe herself claimed was her “mantra”) in meeting with public interest groups and corporations and regulated interests.

Finally, that information can show who has access to DEP policymakers and followup investigations can look at critical issues like: whether those same meeting participants have regulatory decisions pending before DEP or have made political donations to Gov. Murphy.

The NY Times sees a LOT of news value in these issues as well, see:

• E.P.A. Chief’s Calendar: A Stream of Industry Meetings and Trips Home

Why is US EPA Scott Pruitt’s calendar published – and widely reported by media and criticized – but NJ DEP Catherine McCabe can dodge all accountability and conduct her affairs in secret?

So, will NJ’s depleted but intrepid press corp report this new and get their lawyers involved in challenging DEP’s sweeping secrecy claims?

Or do they only investigate and report on Republican Administrations?

And if in fact NJ Courts have ruled as DEP interprets them, will the Legislature close those loopholes and amend OPRA to stop these abuses?

Way Beyond Cynicism

Given the overwhelming scientific consensus that fossil-fuel use is causing potentially irreversible global climate change and the attendant environmental catastrophes, it is a moral imperative that the State invest in energy infrastructure within and outside the State that does not produce greenhouse gases. ~~~ Nuke bailout law, P.L. 2018, c.16

Who knew?

But that’s not all.

You see, our Good Governor and the noble Legislature – and let’s not forget Corporate PSEG, who has poisoned NJ’s air quality and wrecked the climate with decades of carbon power plant pollution – also were morally moved by the deep injustice and plight of poor, mostly black, people locked in NJ’s highly segregated cities:

Poor air quality has a disproportionate impact on the most vulnerable citizens of New Jersey including children, the elderly, and people living in poverty.  Fossil-fuel power plants drive increases in pollutants like ground-level ozone, which aggravates respiratory illnesses for individuals with decreased lung function.  Public health and environmental justice necessitate a reduction in these pollutants to protect the most vulnerable of our citizenry.

“Money Island” – PSEG nuke’s address

Despite a longtime career in NJ environmental politics, I must admit that I really had no idea just how cynical – no, diabolical – the Legislative sponsors and Gov. Murphy could be when I wrote a post tiled “Nuclear Cynicism” months back when the bailout ploy was becoming obvious.

But I wrote that post before having read the billion dollar nuclear bailout bill Gov. Murphy just signed – hit the links and look at all the moral, brave, and caring sponsors! (S2313 and A3724).

Here’s the vote roll call in the Senate, look at all the brave YES votes – only 9 Senators could stand up and say NO.

The cowards in the Assembly passed the bill by a voice vote, so there’s no roll call vote (It was unanimous! Bailing out nukes on the backs of NJ’s poor is now a motherhood and apple pie “moral imperative” worthy of a unanimous consensus!)

I’m now surprised that they didn’t cite Pope Francis’ encyclical “Care for Our Common Home” (the gas pipeline whores came close to that).

Please don’t blame me for being bitter – I’ve often written of a “moral imperative” to act on climate (e.g. see this and this and this and this and this and this and this).

Don’t let it bring you down,

It’s only castles burning ~~~ Neil Young

Each and every one of those efforts were completely ignored by policymakers and the press, including most of our so called environmental colleagues.

I even manufactured “fake news” to get the gravity of the concern out into the mainstream policy debate:

Chairman Lohbauer issued the following statement:

The recent release of Pope Francis’ encyclical “Care for Our Common Home” followed by his US visit, brought home the moral imperative to act to respond to the climate crisis.

The ongoing Paris COP21 climate treaty negotiations has focused the world’s attention on the climate crisis.

The Pinelands Commission, as an institution of the world with a public mission, understands the scientific and moral imperatives to act.

But lets get back to the nuke bailout bill itself.

Prior to its passage and signature of Gov. Murphy, NJ Spotlight exposed the fact that the bailout would include out of state nuke plants, see:

• NEW JERSEY’S NUCLEAR SUBSIDIES COULD GO TO OUT-OF-STATE PLANTS

One would think that such a disclosure would kill the bill. One would be wrong.

Critics of the bailout had raised that issue during legislative deliberations, but were ignored by Legislators and the media, while PSEG failed to disclose that fact:

“It’s been well-known for months that PSEG’s nuclear bailout bill would send money to generators outside of New Jersey, yet only now has the company conceded this could be true,’’ said Matt Fossen, spokesman for the New Jersey Coalition for Fair Energy, a group of rival energy companies and the Electric Power Supply Association.

Acknowledging the truth

“It’s incredibly rich that PSEG would deflect this point at every turn, just to acknowledge the truth yesterday — well after the proposal has gone through its main debate and deliberation,’’ he added.

But left out of the “truth” and faux outrage over how PSEG basically lied to the Legislature by omission, was what should have been outrage over HOW PSEG ultimately outed the truth.

While PSEG failed to disclose this fact to NJ Legislators or media, they had no problem disclosing it to Wall Street shareholders and investors:

In a quarterly earnings call with analysts Monday, Izzo acknowledged out-of-state nuclear units would be eligible to receive the subsidies, a point critics of the bill occasionally made during the months-long debate on the legislation. They were largely ignored.

Repeat: PSEG disclosed a key fact they withheld from NJ Legislators  “In a quarterly earnings call with analysts”.

That puts Wall Street’s bottom line in a superior position to Democracy. PSEG is more accountable to Wall Street than Legislative power.

Stunningly, no one objected to this corporate subversion of Democracy.

And to top it all off, after Gov. Murphy signed the billion dollar bailout bill into law, the PJM held their annual “capacity auction”.

NJ Spotlight reported that PSEG nuke plants “cleared” the PJM auction:

They also had implications in New Jersey, where Gov. Phil Murphy on Wednesday signed legislation that could direct up to $300 million in annual ratepayer subsidies to nuclear units operated by the Public Service Enterprise Group in South Jersey. Without the subsidies, PSEG had threatened to close the plants.

As it turned out, PSEG bid the units into the auction, and all cleared, meaning they will receive capacity payments in 2021 to provide power to the grid when the market demands it.

But what NJ Spotlight failed to make clear in its vague allusions to “implications”, was a fundamental point: the fact that the PSEG nuke plants “cleared” the PJM auction means that they are competitive and profitable and therefore DID NOT NEED THE MULTI-BILLION DOLLAR BAILOUT GOVERNOR MURPHY JUST SIGNED.

Spotlight’s failure to make this essential point clear was no accident – it would have shamed PSEG and made Senate President Sweeney and Gov. Murphy either corporate whores or dupes.

Jeff Tittel of Sierra Club had issued a press release to them, in which he called the bailout a “sham”, and made the following point right up front and many times:

“Yesterday was a Banner Day for PSEG at the expense of the taxpayers; not only did they get a subsidy, but they got a windfall from the PJS (sic) auction. This shows that they never needed the subsidy since the plants will be profitable for at least five more years on their own. We had called for an analysis with PSEG opening their books and didn’t get it. This is because if we had known they were doing so well, they might not have gotten the subsidy. There was no analysis and the billion-dollar subsidy was signed off.

We said all along that they would clear auction and didn’t need the subsidy and we were correct. The plants aren’t going to close and will be selling power for money in the next for years, making money. This shows they didn’t need the subsidy.”

Spotlight ignored that valid criticism.

But they managed to print what must be the most cynical understatement of all time, a quote by a Wall Street analyst who whitewashed the diabolical corruption like this:

Partnering with utilities

“The Murphy administration seems to be partnering with the state’s utilities to advance its environmental agenda,’’ said Paul Patterson, an energy analyst with Glenrock Associates in New York City. “That could be good news for the utilities.’’

Partnership and moral imperative my ass.

This was straight up corporate blackmail by PSEG and political cowardice and corruption.

[End note of disgust: take a look at the photos in this post from Salem, NJ, neighbor to the PSEG nuke plants – look hard. Take a look at the “environmental justice” that Senate President Sweeney, Gov. Murphy, and NJ US Senator Booker ignore and cry crocodile tears for.]

“AMERICAN DREAM”

No New Day or New Era For The Barnegat Bay – Another Example of Continuity

This is what sycophancy looks like

Billboard outside DEP HQ on State Street

As a coastal state, New Jersey is particularly exposed to many of the effects of global climate change, such as rising sea levels and more extreme storms.  Many of New Jersey’s most important commercial and tourism assets are located in coastal areas, and events like Superstorm Sandy have demonstrated the imminent and tangible threats that intense storms pose to New Jersey’s economy and environment.   ~~~ Nuke bailout bill just signed by Gov. Murphy

From the Highlands, to the Pinelands and now Barnegat Bay and the Jersey shore, instead of repudiating and reversing them, the Murphy DEP quietly is embracing Gov. Christie’s DEP failed policies and plans. Follow.

1. The NJ Highlands region is governed by a nationally recognized regional planning, regulation, and management plan. It was attacked by Gov. Christie. Christie fired the Executive Director, installed his own puppets, and rolled back regulatory protections.

In reversing that Christie rollback policy, Gov. Murphy could have announced a national search for a new Executive Director of the NJ Highlands Council  and a rejection of the Christie DEP rollbacks –

He didn’t. In fact, Gov. Christie’s Executive Director appointment is still there and Murphy’ DEP Commissioner McCabe defended the Christie DEP rollbacks..

2. The NJ Pinelands is the nation’s first National Reserve and a US Biosphere Reserve. It was attacked by Gov. Christie. Christie installed his own puppets on the Commission, blocked reforms, and rammed through gas pipelines.

In reversing that policy, Gov. Murphy could have announced a national search for a new Executive Director and blocked controversial gas pipelines.

He didn’t. In fact, Gov. Christie’s Executive Director appointment is still there. Gov. Murphy has been silent on the controversial pipeline issue.

On top of those political and policy failures, Gov. Murphy’s DEP Commissioner, in her confirmation hearing testimony, aside from completely ignoring the Pinelands, defended Gov. Christie’s DEP rollback of a core Highlands water protection known as the septic density standard.

That was a rollback in protections under one of the nation’s most stringent land use regimes that was rejected by a NJ legislative veto. DEP Commissioner McCabe claimed the whole debate was caused by a “failure to communicate good science” about a “minuscule” impact to the region (McCabe’s words, not mine).

So, why would the NJ Pinelands Preservation Alliance and the NJ Highlands Coalition – purported defenders of those regions – declaim a “new day” and praise Gov. Murphy and his DEP Commissioner Catherine McCabe?

Where is the “New Day” they see?

Why do the ignore what McCabe has actually said, done, and has failed to do?

3. Barnegat Bay has been described by a world renowned academic from Rutgers as suffering an “insidious ecological decline”, who criticized Gov. Christie’s Management Plan for the Bay and urged the need to “seriously ramp things up” and adopt a TMDL.

Now, in addition to those failures in the Highlands and Pinelands, the Murphy DEP and Commissioner McCabe have announced another continuity with the Christie DEP: on Barnegat Bay.

I have written many times about flaws in the Christie DEP Barnegat Bay Management Plan.

It is way past time to declare that Christie Plan a failure.

Gov. Murphy could have issued an Executive Order and press release that abandoned Christie’s failed plan and charted a new course, with science based enforceable standards, based on Clean Water Act TMDL requirements.

He did nothing (despite the fact that one of his 3  environmental campaign platform planks was to “protect the shore”).

Instead, in fact, a recent McCabe DEP press release, DEP explicitly adopted the Christie’ DEP’s failed plan for the Bay.

The key to the debate was the Christie DEP’s failure to enforce the Clean Water Act’s TMDL requirements.

Remarkably, the failed Christie strategy for the Bay is specifically referenced and linked to the McCabe DEP press release:

The DEP will also consider funding any other project consistent with its DEP Barnegat Bay Restoration, Enhancement and Protection Strategy at www.nj.gov/dep/barnegatbay/docs/BarnBay-REPS.pdf

These grants fund voluntary local projects and project work that is not part of a TMDL and in fact undermine theTMDL program.

In a similar situation, when the Obama EPA discovered that similar local voluntary programs had failed in Chesapeake Bay, Obama issue an Executive Order directing EPA to enforce TMDL requirements.

For years, environmental groups, legislators (blocked by Christie DEP vetoes), and the media blasted the Christie DEP for failure to enforce the CWA TMDL requirements in favor of a flawed locally based voluntary plan.

Yet now they all are silent on the Murphy DEP’ embrace of that same failed plan.

4. Finally, in addition to adopting Christie’s Barnegat Bay plan, and directly contradicting Gov. Murphy’s pledge to make shore protection a priority – especially given the threats of climate change – in her first press release, Acting DEP Comm. McCabe continued Christie’s “engineering” approach to shore protection that ignores climate change risks.

Read DEP’s own press release, bragging about dredging and pumping sand on beaches: http://www.nj.gov/dep/newsrel/2018/18_0008.htm …

Continuity continues. McCabe embraces failed Christie policy.

We will keep you posted about continuing policy developments.

[End Note: McCabe more recently attempted to walk back her prior support for beach engineering, with this internally contradictory gibberish in a more recent press release:

Acting Commissioner McCabe also noted that beaches and dunes are in good shape despite an active winter storm season, in large part due to projects constructing them to U.S. Army Corps of Engineers design standards. She also committed the DEP to using the latest science to develop strong strategies to adapt coastal areas to sea-level rise resulting from climate change.

USACoE beach replenishment is not sustainable and therefore is not the “latest science”.

McCabe has done nothing, other than rhetoric, to implement her commitment to “develop strong strategies to adapt coastal areas to sea-level rise resulting from climate change.”

There is nothing in the DEP budget to fund that work.

There is no change in DEP management of organization to implement that work. In fact, McCabe has retained the same manager that implemented Christie’s climate denying engineering based shore policy.

There was nothing in McCabe’s recent testimony at her confirmation hearing and on DEP’s budget regarding that commitment.

Press release rhetoric is cheap.

In that press release, McCabe also showed a willingness – just like her predecessors – to be a cheerleader for shore tourism. McCabe has touted “science and law” as her guiding principles – she omitted the cheerleading role.

McCabe says she’s “unfamiliar” with DEP C1 Exceptional Waters Stream Buffer Program

Agrees that 1,300 new housing units in the Highlands is “minuscule”

A Question of Balance?

Call me (call me) on the line
Call me, call me any, anytime.  ~~~ Blondie

Like Obama’s “all of the above” energy policy … Murphy will say he’s pursuing a “balanced approach”. ~~~ Bill Wolfe (1/31/18)

Balance is my mantra. ~~~ Murphy DEP Commissioner Catherine McCabe, confirmation hearing (5/14/18)

[Update: 5/23/18 – the press finally got it right – the narrative is framed:

• Dismayed environmentalists say Murphy borrowing from Christie’s playbook ~~~ end update]

Acting DEP Commissioner Catherine McCabe faced her confirmation hearing last Monday. Overall, we viewed it as a huge disappointment and outlined some of our concerns. 

We are not alone. The Record also ran a story highly critical of McCabe’s response to the Dupont Pompton Lakes site, see: Phil Murphy says DuPont pollution in Pompton Lakes still under review

[Update: the cave on Murphy’s commitment to end the bear hunt is another example, see:  Acting DEP chief: Bear hunt is on for this fall. And so is this: Just $50M From NJ’s Exxon Settlement Will Go to the Dept. of Environmental Protection, which generated a “Thumbs down” by Record editorial~~~ end update]

In what I plan to write more about, today’s post drills down on 2 important issues McCabe faced questions on and spoke to: 1) how her DEP would address the Christie DEP Highlands rule and 2) the Category One (C1) exceptional waters stream buffer program.

I found it stunning that McCabe challenged Environment Committee Chairman Bob Smith (D) on his criticism of the Christie DEP Highlands septic density rule – essentially defending the Christie DEP – while making concessions to fact free attacks by conservative Republican Senator Cardinale (R), who claimed that a specific DEP staffer classified a “mud puddle” as a navigable water. He said this same DEP staffer found wood turtle on a development site, ultimately forcing the proposed development to relocate to NY State.

But why was McCabe unfamiliar with and not willing to defend DEP’s C1 buffer program, while at the same time familiar with and challenging critics of Christie’s Highland septic density rollback?

I)   “Mud puddle” – “Wood turtle”:  McCabe undermines her own staff – invites improper political intervention in DEP regulatory decisions

Senator Cardinale’s claims were egregious fact free ideological attacks that demanded pushback – but McCabe rolled over.

And in the course of rolling over, she echoed Christie DEP policy and practice about expediting permits and streamlining reviews through the Office of Permit Coordination (an Office established by the Whitman “Open For Business” Administration).

Still, Cardinale pressed on. After presenting his “mud puddle as a navigable waterway” case he asked:

If you have employees in your department making those types of decisions, and it came to your attention, what would you do?

McCabe did not defend the DEP, the wetlands rules, the integrity of the regulatory process, or her own staff. Instead, she replied:

I would go out and look at the site and talk to not only our staff members but talk to the people who are seeking the permit to find out what the situation really is.

Get that?

The developer’s perspective is “what the situation really is”. 

McCabe also said she would conduct a site visit. That is a completely inappropriate role for the Commissioner, as we’ve written about McCabe’s wetlands enforcement tour with Senator Sweeney. Additionally, the DEP land use programs issues thousands of permits every year – she could not possibly conduct site visits at the hundreds of sites that generate disputes between developers and DEP staff.

Still not satisfied, Cardinale continued his assault.

He then outlined a case, with the same company, 5 years later, where the same DEP staffer documented wood turtle on site and as a result the company left NJ for NY.  Cardinale droned on and asked:

Do you believe there shouldn’t be some way in the Department to circumvent the lengthy periods of time it takes to resolve issues such as that so that we do not have an un-neccessary movement of people out of the state. And this is not just residents, but the jobs, into NY state.

Instead of engaging that debate and defending her staff, McCabe again folded. Here’s what she said:

If  you hear of a situation like that developing again, where there is a question of a business is leaving NJ, because it is having a problem with out permitting process, I encourage you to bring it to my attention so I can make sure it is resolved as quickly as possible.

Is McCabe a Blondie fan? (call me!)

So McCabe is no only going to conduct field visits, she is going to be answering the phone and conducting hundreds of quasi-judicial informal hearings on contested permits, based on political intervention and what is legally called “ex parte communications”. (see the Blondie song above)

I wrote about why that was a totally inappropriate approach, in response to McCabe’s wetlands enforcement tour with Senate President Sweeney.

Cardinale, his pound of flesh in hand, finally relented: “I thank you very much for that”.

McCabe was just awful, showing no spine whatsoever. Cardinale is a notorious hack. McCabe should pushed back, not groveled. I have locked horns with him, after he called Bergen County C1 streams “drainage ditches”, see:

• Senator Cardinale Walks Back “Drainage Ditch” Remark
• Senator Cardinale Calls NJ Streams “Drainage Ditches”

II)   McCabe Says She Is Unfamiliar with DEP’s Category One Exceptional Quality Waters Program(C1)

Cardinale then moved from mud puddles and wood turtles, to an attack on the DEP’s Category One (C1) stream buffer program.

After he summarized his understanding of the C1 buffer program, he complained that he saw numerous development projects that were building within 300 feet of a stream. So Cardinale asked:

Can you clarify for me what this 300 hundred feet really means?

McCabe responded:

I am not yet familiar with NJ’s stream buffer rule... I don’t know what particular circumstances it would apply to and what could explain  the buildings that you’re seeing, but if there is a particular situation you would like me to look into, I would put that on the top of my pile and learn it quickly.

More groveling.

The C1 buffer program was a cornerstone of Democratic Governor McGreevey’s environmental legacy, second only to the Highlands Act, which was based on the same legal anti-degradation policy under the Clean Water Act.

It is one of DEP’s most powerful regulatory tools to protect water quality and restrict development, It is one of the strongest stream buffer programs in the Country.

It was a target of the Christie DEP for rollback and the subject of extreme controversy, including a legislative veto of Christie DEP rules that weakened the C1 program (a final veto was derailed by a Sweeney deal. Could dodging Sweeney be why McCabe claims she is unfamiliar?)

For an Acting DEP Commissioner, more than 4 months into her tenure, to still be “unfamiliar” with this program is outrageous and totally unacceptable.

Actually, I simply don’t believe McCabe is not familiar with the C1 program. The C1 program was mentioned in Transition, it is critical to controversial pipeline decisions, and I sent her information on the C1 buffer program months ago. Maybe that’s why she’s since blocked my email.

It does not pass the straight face test that McCabe is unfamiliar with all this. If she really is, she is grossly incompetent and should not be confirmed by the Senate.

McCabe not only failed to defend the DEP C1 program and push back against criticism from a conservative Republican’s attacks, she then defended the Christie DEP’s Highlands septic density rule and pushed back against Chairman Smith.

III)  Highlands

Senator Smith, Chairman of the Environment Committee, led the charge to oppose the Christie DEP rollback of the Highlands Septic Density Standard, which resulted in a rare legislative veto of that rollback as “inconsistent with legislative intent” to prevent the degradation of high quality Highlands waters.

Smith asked McCabe about the status of the Christie Septic Density rule.

Remarkably, McCabe defended the Christie DEP rule, challenged Smith’s premises, downplayed the impact of the rollback, and pledged to re-propose another septic density rule!

Senator Smith:

In the old administration, there was an effort to change the Highlands septic density rules. The legislature .. invalidated those rules. ..Is there any plan to do anything?

McCabe replied:

I don’t think we need to do anything…. We’re back at the drawing board. I’ve taken a look at the science myself.

Frankly, I think what happened was failure to communicate between our scientists and the legislature.

Whaaaaaat? Failure to communicate? Are you kidding me? It was a fucking rollback, you idiot. Was she watching the movie classic “Cool Hand Luke” the night before? Failure to communicate indeed!

McCabe went even further:

I have asked to have the model re-reun so that we can use only data that pre-dates the time [passage] of the Act. What happened apparently was that they changed the result where the standard would be based on adding in a lot of new data. Now that’s good science… 

No, it is NOT good science. It’s statistical manipulation. It was BAD science because the data did not represent actual background groundwater water quality.

McCabe continued:

I think that what we’ll do going forward and get the results from the rerun is that we’ll show you how that works out and we’re happy to work with the legislature on a path forward. But I have learned from our scientists is that people had a a misimpression of just how much of a difference that change made. It did not change all that much on the ground.

Smith interjected:

Minuscule

McCabe agreed

Yeah.

Smith

1,300 more homes

 Do you think 1,300 more homes disturbing an unknown acreage of land in the Highlands Preservation Area is “minuscule”?

Shame on McCabe.

As we noted:

There was nothing wrong with the existing rule, legally or scientifically or as a matter of public policy. The Christie DEP decided to roll it back based on settlement of a lawsuit filed by the Farm Bureau.

McCabe is taking the same legal and scientific position as the Christie DEP in regard to the Farm Bureau lawsuit.

Instead, she needs to work with the AG and petition the Court revoke the Christie DEP settlement agreement with the  Farm Bureau and defend the existing rule. There is no need to re-propose any new rule.

Beware folks – a wolf in sheep’s clothing is among us.

(next – Senator Sarlo seeks “balance” and Sen. Dougherty exposes risks of unregulated prescription drugs in water supply.)

Acting Commissioner McCabe’s Testimony on Dupont Angers Pompton Lakes Residents

McCabe gave false testimony on a key legal issue

“misleading the Senate is disqualifying”

Although the Murphy DEP has declared “a new era in environmental protection“, I have been writing – citing several examples – about how many NJ DEP regulatory policies under Gov. Murphy’s Acting DEP Commissioner McCabe are virtually the same as the Christie DEP, amounting to policy continuity, not contrast, and certainly no “new era”.

Today, the DEP press Office admitted that.

In a killer story in today’s Record – Phil Murphy says DuPont pollution in Pompton Lakes still under review – the DEP press office said this:

When asked by The Record if McCabe could clarify her testimony, DEP spokesman Larry Hajna said McCabe’s remarks “stand for themselves” and mirror the longstanding policy that was undertaken during the Christie administration.

Wow. I wonder who will be shown the door: Hajna or McCabe.

But an even worse abuse was not mentioned in the Record’s otherwise superb story.

The fact of the matter is that McCabe misled the Senate Judiciary Committee in the first sentence of her reply to a question by Senator Smith requesting a status report on Dupont Pompton Lakes site. McCabe swore an oath to provide “complete” testimony. She simply failed to do so.

Echoing US Senator John McCain on CIA torture: misleading the Senate is disqualifying.

McCabe, an experienced environmental lawyer, mis-stated the legal basis of her own DEP’s oversight of the Dupont Pompton Lakes site. McCabe said this:

McCabe: Pompton Lakes is being handled as a Resource Conservation and Recovery Act corrective action cleanup. EPA and DEP have been working on it for years. It’s the same process, really, with very minor differences, as the Superfund process, where we study it in depth and come up with the best solution to protect public health first and then to do a long-term cleanup.

McCabe’s false testimony on DEP’s legal powers to oversee Dupont site is shocking for an experienced lawyer.

It is true that the Dupont Pompton Lakes site is a federal EPA RCRA Corrective Action site. The RCRA Corrective Action program was established by Congress in RCRA amendments passed in 1984, known as “HSWA”.

However, NJ DEP oversight of the Dupont Pompton Lakes site is NOT conducted pursuant to the federal RCRA Corrective Action program. NJ has not sought and the US EPA has not delegated RCRA Corrective Action program to the State of NJ.

The NJ DEP oversight of the Dupont Pompton lakes site is pursuant to NJ State cleanup law and a 1988 Administrative Consent Order between NJ DEP and Dupont.

McCabe surely must know this. If she doesn’t, she is not competent. (I discuss the federal RCRA versus NJ State law issues in this post):

The Dupont site is jointly under NJ DEP and US EPA jurisdiction pursuant to federal law.

EPA oversees the Dupont cleanup under the Resource Conservation and Recovery Act (RCRA) as amended in 1984  “Hazardous and Solid Waste Amendments” (HSWA) “Corrective Action” program.

The RCRA/HSWA created a complex regulatory framework and cleanup program whose implementation can be delegated to States by EPA. However, NJ never sought EPA delegation of the Corrective Action program, instead relying on State law and the 1988 ACO.

I previously managed the NJ DEP HSWA Corrective Action program, so had front row seats to all this when it was going down.

I firmly believe that she intentionally misled the Senate Committee by creating the false impression that federal law governs the Dupont cleanup.

I believe that McCabe did that to evade responding to local residents, who have written McCabe to demand, among other things, that the NJ DEP revoke the 1988 ACO and assume control of the cleanup under NJ’s cleanup law known as the Spill Compensation and Control Act (Spill Act).

So, in addition to angering Pompton Lakes residents and confirming continuity with the Christie DEP policies, McCabe is guilty of misleading the Senate in her confirmation hearing testimony.

As US Senator McCain said, that should be “disqualifying”.

McCabe also made other misleading statements in her response to Senator Smith on Dupont.

McCabe said this:

It’s [RCRA Corrective Action] the same process, really, with very minor differences, as the Superfund process, where we study it in depth and come up with the best solution to protect public health first and then to do a long-term cleanup.

McCabe knows that is not legally or practically true.

The polluters have far more control over cleanup decisions under RCRA. The EPA has far less power under RCRA. The public has far less involvement under RCRA.

McCabe’s statements comparing RCRA to Superfund also contradict her previous boss, EPA Region 2 Administrator Judith Enck and a former DEP site manager. The Record reported:

A federal regulator told The Record she pushed to have the DuPont site added to the Superfund list so it could receive more federal money and contractor support, enjoy potentially quicker approvals for cleanup measures, and take into account public input. But state and local political leaders, including Bob Martin, the state’s top environmental official under then-Gov. Chris Christie, blocked those efforts. 

“It always seemed to me that the company was trying to slow-walk the problem,” Judith Enck, former regional administrator of the federal Environmental Protection Agency during the Obama administration, said in a recent interview. “They worked hard to pay as little money as possible and stretch it out over a long period of time, and sadly I think they are succeeding at that.”

“I find it increasingly hard to believe that it has taken this long to do the work. If you are truly trying to protect human health” said FRANK FARANCA, A FORMER DEP OFFICIAL

And when was the last time you saw your local Congressman tour and RCRA site, like they do at Superfund sites? When was the last time the media wrote stories about RCRA sites like they do at Superfund sites?

McCabe knows all this, plus all about EPA legal powers under Superfund are stronger than under RCRA. She didn’t provide “complete” testimony and misled the Senate by omission and commission.

McCabe said this:

One of the early actions that they took was to move to put soil vapor extraction systems in to protect the homes that are over the plume because it is a plume of dangerous chemicals that’s coming out of the old plant there.

The Dupont cleanup has been under DEP jurisdiction since even before 1988. Prior to the 1988 ACO, DEP issued NJPDES discharge to groundwater permits to Dupont’s hazards waste impoundments (e.g. the shooting pond). DEP had jurisdiction over the Dupont site since the late 1970’s under NJ’s Solid Waste Management Act as well.

Dupont, NJ DEP, and EPA were aware of the vapor intrusion problem since at least 2000. But the vapor intrusion problem was not even disclosed to the public by Dupont, DEP and EPA until early 2008  and the vapor extraction systems, described by McCabe as an “early action”, were not installed until after that (2008 – 2010).

That’a 10 – 30 year delay – hardly the “early action” that McCabe describes.

If the Governor and McCabe are listening, as I wrote and the residents of Pompton Lakes have written McCabe to request, here is a path forward:

1. Issue an Executive Order directing DEP to act as follows, within 30 days:

2. NJ DEP must assume direct oversight of all facets of the cleanup of the Dupont PL site under NJ cleanup laws;

3. NJ DEP Commissioner McCabe must revoke the 1988 ACO – here’s the basis to do that, from DEP boilerplate ACO document: (DEP has other enforcement authority as well)

IX. Reservation of Rights

35. The Department reserves the right to unilaterally terminate this Administrative Consent Order in the event that the Department determines that [Person] has violated the terms of this Administrative Consent Order.Before the Department unilaterally terminates this Administrative Consent Order, the Department shall notify [Person] in writing of the obligation(s) which it has not performed, and [Person] shall have thirty (30) calendar days after receipt of such notice to perform such obligation(s).

In place of the ACO, DEP must issue a Spill Act Directive to Dupont, which lays out enforceable technical requirements, deadlines, compensation for DEP oversight costs, and enforcement penalties.

4. Using Dupont’s money, DEP must hire contractors to conduct the remaining cleanup at the site.

5. DEP must reopen the partial Natural Resource Damage settlement with Dupont negotiated by former DEP Commissioner Brad Campbell. That sweetheart deal was corrupt, provided no benefits to Pompton Lakes, and actually allowed Dupont to donate contaminated land (see Bergen Record story: Dupont deal gave state more tainted soil

Bill Wolfe of the Public Employees for Environmental Responsibility’s New Jersey chapter agreed. “DuPont got a sweetheart deal and DEP didn’t do their homework,” Wolfe said. “The deal must be renegotiated and DuPont forced to pay fair compensation, especially to Pompton Lakes residents who have suffered for decades.”

DEP can use the soon to be completed US FWS’s NR damage assessment as part of the basis for additional NRD compensation $.

6. DEP must threaten – and, if Chemours/Dupont  is intransigent – collect treble damages authorized by the NJ Spill Act.

What will Murphy do?

Now that he’s personally insinuated himself in the controversy and dropped the L bomb, the whole state is watching.