WolfeNotes.com

McCabe Seeks To Divide and Conquer 

Isolates and Marginalizes DEP’s Dupont Critics

Manipulates Public & Provides Cover For Local Officials At Partisan Sham “Hearing”

That headline is not rhetorical – once again, Murphy DEP Commissioner McCabe has revealed herself as either a totally naive fool or a malign manipulative political bureaucrat.

[A reader just shot me an email – slams me for getting it badly wrong and says: “McCabe a wealthy corporate sell out – check her record and financials”]

The most recent case of gross malpractice occurred in Pompton Lakes regarding the notoriously failed 30 year long Dupont toxic site “cleanup”. Follow the most recent developments:

Recall that, months after Gov. Murphy compared Dupont Pompton Lakes to the Love Canal disaster, McCabe was criticized for rejecting the pleas of local residents to support designation of the Dupont site as a federal Superfund site, see: Like Christie, Murphy’s DEP says no to Superfund for Pompton Lakes cleanup (June 3, 2108):

Gov. Phil Murphy’s administration has no plans to seek Superfund status to speed cleanup of a contaminated plume and former DuPont munitions site in Pompton Lakes, despite pleas for such action from many residents who must live with the cancer-causing pollution.

“I don’t see any advantage in Superfund,” Catherine McCabe, acting commissioner of the state Department of Environmental Protection, said last week in an interview with The Record and NorthJersey.com.

(We noted that in seeing no advantage in Superfund, McCabe contradicted her former boss, US EPA Region 2 Administrator Judith Enck, who, after leaving office, told the Record:

Six years ago, a leading EPA official told McCabe’s predecessor, then-DEP commissioner Bob Martin, how Pompton Lakes would benefit from Superfund.

Judith Enck, a former EPA regional administrator, pushed Martin and the Christie administration in 2012 to put Pompton Lakes into the Superfund program.

States must nominate toxic sites to begin the Superfund process, and Enck said the Christie administration was the biggest obstacle.

“I think the new administration should consider sending a letter to EPA for Superfund designation,” Enck has told The Record, referring to the new Murphy administration.

The Record also reported that McCabe’s claims of “no advantage in Superfund” were flat out contradicted by McCabe’s former agency, US EPA:

Superfund status would provide a more ironclad cleanup plan for Pompton Lakes that could not be as easily challenged by Chemours, according to U.S. Environmental Protection emails obtained by The Record and NorthJersey.com.

It would also give residents more opportunity to have their concerns heard. And it would allow them to hire independent contractors to examine mounds of scientific data.

And of course, based on McCabe’s own prior legislative testimony, I predicted exactly this would happen long before it did, see:  Murphy DEP Admits “Continuity With Christie DEP” On Dupont Toxic Fiasco (May 17, 2018).

After McCabe announced her “no Superfund” decision, local residents were especially enraged because McCabe made that decision without meeting with or even talking to them. That betrayed a promise they had received from McCabe’s Chief of Staff, Eric Wachter and thought they had received personally from Gov. Murphy himself on a WNYC radio call in show. (and we predicted that too – see Played in Pompton Lakes – Again)

To make amends for betraying local residents, McCabe agreed to a meeting with them.

On Thursday August 16, 2018, Commissioner McCabe, Chief of Staff Wachter, DEP’s Communications Director and McCabe’s “special assistants” Brendon Shank, Derek Hardy &  Chris Gough finally met with several local residents and members of local activist groups CCPL and PLREI.

McCabe brought her political team – not one DEP expert or staff familiar with the Dupont cleanup attended that meeting. I was told that McCabe apparently was not even familiar with the terms of the 1988 Administrative Consent Order (ACO) between DEP and Dupont. That ACO governs the DEP’s oversight of the cleanup and is a crucial document.

It is simply incomprehensible that a DEP Commissioner would hold a meeting with informed residents without a DEP expert and without detailed briefings on and knowledge of the regulatory oversight documents (i.e permits, ACO, etc).

But before the meeting with residents went down – a meeting which took DEP months to arrange – word of the meeting got out to local officials and others, who then demanded their own meeting with DEP.

Despite residents’ longstanding disagreements with local officials, whose negligence in protecting residents and consistently supporting Dupont, (see: Is Pompton Lakes The Most Corrupt Local Government In NJ?) DEP and EPA borders on corruption, McCabe immediately accommodated that request, which was held just one day after meeting with residents.

In this second meeting, McCabe met with an invited small group of local officials and Republican State legislators representing the District.

Republican Assemblyman Kevin Rooney falsely called that political meeting an “Environmental Hearing”.

It was not a “hearing”.

It was a divisive dog and pony show, an orchestrated and partisan sham to create the false appearance that local officials and State legislators are aggressively holding DEP and Dupont accountable and looking out for residents.

Here’s a screen shot from Assemblyman Rooney’s Twitter feed:

Here’s how former local official and CCPL leader Lisa Riggiola felt about that “hearing”, calling out Rooney in this comment on Rooney’s Facebook page:

A hearing and many of the residents of the plume that have been fighting for their lives for a decade are not invited to a hearing?   You sure this wasn’t a political event for the Republican Party?  Are these some of the same people that have shunned the plume residents, showing them not an ounce of care or respect let alone do anything positive to fight for the right clean up?  You have a hard time after a decade for them to believe that some of them are changed after all these years?

Right on, Lisa! You got it exactly right.

But, of course local and State politicians are going to play these bullshit games.

A DEP Commissioner is NOT supposed to do so and should have the political chops to understand these games and avoid getting manipulated by them (see:  The Murphy DEP Is Out of Control In Politicizing Dupont Pompton Lakes Permit Review).

By holding 2 meetings – both private, by invitation only, and political – McCabe has sown further mistrust and division among the people of Pompton Lakes, while also undermining trust in DEP.

McCabe is playing the same manipulative game as local officials have in trying to isolate and marginalize the residents who criticize Dupont and DEP. She has shown disrespect to them.

But instead of avoiding these games and manipulation, McCabe – just like she did on that wetlands “tour” with Senate President Sweeney – completely caved in and willingly participated in gross political manipulation.

That’s why there were no DEP scientists or experts in the meeting with residents, just McCabe sycophants and political hacks.

Shame on her – again.

Looks Like Commissioner McCabe Didn’t Get The Memo

We’ve previously ridiculed the “moral imperative” on climate change that purportedly drove NJ Gov. Murphy’s recent nuclear bailout and explained how current NJ DEP regulations fail to address climate change.

Today we – very briefly – highlight another huge contradiction between the Gov.’s purported policy goals and his DEP’s actual performance thus far – a performance that makes it impossible to achieve the Gov.’s legislative goals, absent significant policy changes at DEP.

NJ Spotlight recently reported:

Competitive Power Ventures, the owner of a 725-megawatt power plant in Woodbridge Township, is seeking approval to build another natural-gas plant adjacent to its existing unit in the Keasbey section of the community….

The proposal is the fourth natural-gas plant seeking necessary approvals from local and state permitting authorities. But it also raises questions about whether the sector has absorbed the message from the Murphy administration that it wants to have 100 percent clean energy by 2050.

Despite previously reporting on DEP approvals of proposed new gas plants, Spotlight chose to give DEP a pass and merely question whether “the [gas] sector]” has absorbed Gov. Murphy’s message.

The Spotlight story concluded with this “he said” claim (instead of a fact claim):

Environmentalists say the new natural-gas plants conflict with that [Global Warming Response Act] target.

Aside from the meek “Environmentalist say” characterization, and failure to mention the fact that DEP has begun green lighting the construction of almost 2,000 MW of new gas power plants and renewed and issued new permits for major gas pipelines, Spotlight knows that there is really no question that there is a conflict between the proposed new gas plants and Gov. Murphy’s purported goals.

Here’s what Gov.Murphy’s legislation actually says about gas infrastructure:

(7) In order to meet the goals under the “Global Warming Response Act,” P.L.2007, c.112 (C.26:2C-37 et seq.), to reduce greenhouse gas emissions 80 percent by 2050, it will be necessary to significantly reduce emissions from the electric power generation sector. This will require reducing the State’s heavy reliance on natural gas for electric power generation, the primary source of emissions from the electric power generation sector. ~~~ P.L. 2018, c. 16

Did DEP Commissioner McCabe get the memo?

Or Did Murphy not write one?

DEP Invokes A Broad Categorical Secrecy Claim Over DEP Internal Communications

DEP Creates New Secret Category – A “Ghost File” For Withdrawn Permit Applications

Protecting Pipeline Corporations While Keeping The Public In The Dark

The so called “deliberative privilege” under OPRA was designed as a narrow exemption to protect the legitimate “deliberations” of the final decision makers in State agencies in making policy decisions.

It was NOT intended to – and it does not – throw a broad and categorical secrecy blanket over scientific and factual information that is gathered and analyzed and communicated by State agency employees, crucial information that forms the factual basis of those policy decisions. The NJ Supreme Court explains:

OPRA exempts from the definition of “government record” documentary information that constitutes “inter-agency or intra-agency advisory, consultative, or deliberative material.”  …

The deliberative process privilege “permits the government to withhold documents that reflect advisory opinions, recommendations, and deliberations comprising part of a process by which governmental decisions and policies are formulated.” [cite] The essence of the privilege is simple, its rationale built on powerful logic. As explained by Justice Reed when introduced for use in the federal courts, the privilege is necessary to ensure free and uninhibited communication within governmental agencies so that the best possible decisions can be reached.

Free and open comments on the advantages and disadvantages of a proposed course of governmental management would be adversely affected if the civil servant or executive assistant were compelled by publicity to bear the blame for errors or bad judgment properly chargeable to the responsible individual with power to decide and act. Government from its nature has necessarily been granted a certain freedom from control beyond that given the citizen. It is true that it now submits itself to suit but it must retain privileges for the good of all.

This seems to prefer secrecy to transparency and public disclosure.

However, there are important distinctions that must be made in determining what documents are truly “deliberative” and exempt under OPRA. They involve the nature of the information (e.g. whether it is fact or science, versus advise or opinion) and the level within the agency that the information is generated in relation to the final agency decsion-maker (e.g. the “nexus”, or its role in deliberation and how close it is to the final decision by the Commissioner). The NJ Supreme Court explains:

Because the privilege is a qualified one, a litigant can still obtain the requested materials upon a showing that the need for the materials overrides the government’s interest in confidentiality.  Ibid.  At that point, the burden is on the litigant to demonstrate such a compelling need:  “[I]n all but exceptional cases it is considered against the public interest to compel the government to produce inter-agency advisory opinions.”  Ibid. [cite]. In making the determination whether a litigant has demonstrated an overriding need, a court should consider the following factors:  “(1) the relevance of the evidence;  (2) the availability of other evidence;  (3) the government’s role in the litigation;  and (4) the extent to which disclosure would hinder frank and independent discussion regarding contemplated policies and decisions.”  

For example, a DEP field technician’s memo to his supervisor summarizing water quality data is a scientific communication that is far down the management chain and deliberative process for a final permit decision made the Commissioner.

In contrast, a memo or email to the DEP commissioner from an Assistant Commissioner that summarizes the issue, balances public comments, and makes recommendations on a water quality permit decision legitimately could be considered to be “advisory, consultative, and/or deliberative” exempt under OPRA.

The NJ Supreme Court lays out the framework – it is clear that there can be no blanket claims to “deliberative privilege”, and clearly, science and factual information is distinct from consultation and advice, as is the role of the information in the “nexus” of the deliberative process.

In EDUCATION LAW CENTER, On Behalf of Abbott v. Burke Plaintiff Children, Plaintiff-Respondent, v. NEW JERSEY DEPARTMENT OF EDUCATION, Defendant-Appellant, the Court ruled: (emphasis mine)

We hold that a record, which contains or involves factual components, is entitled to deliberative-process protection when it was used in the decision-making process and its disclosure would reveal deliberations that occurred during that process. By that standard, an individual document may not be capable of being determined to be, necessarily, deliberative material, or not, standing alone.   A court must assess such fact-based documents against the backdrop of an agency’s deliberative efforts in order to determine a document’s nexus to that process and its capacity to expose the agency’s deliberative processes.

In my case, DEP has abused OPRA by throwing a broad secrecy blanket over virtually all DEP science, data, and technical analyses conducted by DEP professionals and scientists, regardless of its role in the deliberative process.

DEP staff are “public servants”. They work for the public and virtually everything they do is “on the record” and public, not secret. How could DEP possibly get away with trying to keep all DEP emails on permit reviews secret? For years, in Democratic and Republican Administrations, I have filed OPRA requests and been provided DEP emails regarding permit reviews.

In denying my OPRA, DEP arrogantly failed to even justify their claims about the deliberative process. They imply categorically denied my request.

There is no way that all DEP communications regarding renewal of the SJG permits could all reflect DEP’s  internal, pre-decisional policy recommendations.

Obviously, there is a strong public interest in knowing what DEP professionals say about the application of DEP rules for renewal of permits with respect to the hugely controversial SJG pipeline.

II) Ghost Permit Files – Public Comments Go Down The Memory Hole

DEP also created an entirely new category of OPRA exemption.

I was particularly interested in public comments filed by Princeton Hydro on that permit application, which I was led to believe identified fatal flaws in the permit application that would force DEP to deny the permit.

I suspected that by allowing Transco to withdraw the flawed permit application and re-apply instead of simply denying the application, that DEP was protecting Transco.

I assumed that someone in DEP had a similar view and had put it in writing during the permit application process.

So I filed the following requests for public records:  I boldfaced relevant request denied:

Absent revision to NJ DEP rules and policies, the Murphy administration will lack an enforceable legal basis to deny pipeline and power plant permits

I sense that NJ environmental leaders fighting pipelines and gas power plants quietly are relying on a regulatory strategy adopted by NY Gov. Cuomo’s State Department of Environmental Conservation (DEC) to deny State Water Quality Certificates (WQC) required by the federal Clean Water Act.

I also suspect that NJ Governor Murphy’s Attorney General and DEP Commissioner are considering this NY DEC strategy as well.

As NJ Spotlight reported:

Not only does FERC ignore climate-change implications, the Attorney General argued the agency fails to consider the full range of environmental impacts. “As the Attorney General for a state impacted by natural gas pipeline approvals, I know that FERC needs to be much more careful in its overall approach to pipelines,’’ he said.

New Jersey Department of Environmental Protection Commissioner Catherine McCabe agreed, saying “now is the time for the agency to analyze and reduce environmental harms. “Reducing and responding to climate change is a priority for the DEP,’’ McCabe said, “and there is an urgent need for FERC to improve its review process to account for all environmental harms.’’

That Murphy administration attack on FERC’s environmental review as “fatally flawed” echoes exactly the argument made by NY DEC as its rationale for denying State WQC to a recent pipeline.

Here’s NY DEC denial in a petition to FERC:

I have long advocated this strategic approach to using State WQC powers to kill pipelines, but my technical regulatory recommendations are significantly different than the way NY DEC has done things. Essentially, this is because NY DEC State environmental laws and regulations are very different from NJ DEP’s.

This is a complex distinction, but it is very important because it will determine the outcomes. Let me try to explain.

Most recently, NY DEC declined to renew a State air quality permit for the Competitive Power Ventures (CPV) proposed 680 MW gas plant in nearby Orange County, NY (see this for that complicated story).

The effect of that NY DEC state air permit denial is being exaggerated as a “huge win” that killed the project.  Actually, all NY DEC did was force the project to apply for an EPA federal Title V air quality permit. Trump administration EPA approval of that permit is virtually certain, so NY DEC merely delayed the operation of the CPV plant, which is completely constructed. (Google “Repeal of Obama Clean Power Plan”)

But more importantly, last year, the NY DEC also denied a State Water Quality Certificate (WQC) for a 7.8 mile gas pipeline to feed the CPV plant, known “Valley Lateral Project” or as the Millennium Pipeline (see this for DEC denial document).

I just looked into that NY DEC 2017 denial of a WQC for the Millennium pipeline to the CPV gas plant.

NY DEC relied on 2 factors in NY State regulations to deny the Water Quality Certificate for the pipeline to the CPV power plant:

1) a US DC Circuit Court decision in a case won by the Sierra Club. That case turned on the failure by FERC to consider greenhouse gas emissions during the NEPA environmental review process. In the pipeline WQC denial, citing the Sierra Club decision, the NY DEC claimed that FERC had failed to consider GHG emissions during NEPA review:

The “lack of complete environmental review” was based on failure to consider GHG emissions. The “change in law” was the DC Circuit case that found FERC failure to consider GHG emissions.

2) NY DEC then relied on NYS DEC regulations that provide factors to deny permits – one of them is a change in law. NY DEC cited the Sierra  FERC case as a change in law.

So, Sierra Club is a national leader on the regulatory aspects of pipelines and Sierra’s anti-pipeline strategy relies heavily on the DC Circuit court decision strategically.

The focus of that strategy is on demonstrating that FERC environmental reviews are fatally flawed and then using State permit regulations to use FERC’s flaws to deny State permits.

Thus, we can see how NJ  Sierra Club must be pleased by the recent NJ DEP and AG criticisms of FERC reported by NJ Spotlight above.

Now, here’s how I see the fatal flaw in the NJ strategy and the huge upcoming disappointment.

A few weeks ago, NJ DEP Commissioner and NJ Attorney General issued a joint press release blasting FERC for a fatally flawed environmental review process. That tactic is virtually identical to NY DEC criticism of FERC. I’m almost certain that  NJ ENGO’s perceived that as a step in following NY and laying the foundation to deny pending NJ pipeline permits (power plants are a different issue – as we’ve written, current NJ air permit regulations do not consider GHG emissions in terms of setting emission limits or as a basis to deny or condition a permit.).

Based on the NJ DEP/AG press release, I wrote a post criticizing them for hypocrisy, noting that NJ DEP State environmental reviews and permit regulations don’t consider GHG emissions, See:

• NJ Environmental Regulations Ignore Climate Change

So, I assume that NJ Sierra Club and NJ ENGO’s view my analysis as undermining their strategy.

But here is where it gets really tricky and why the NY regulatory strategy will fail in NJ.

NY DEC was able to make the argument that the FERC NEPA review was fatally flawed only because NY has a State NEPA (i.e. SEQRA). But despite its own State law, the NY DEC relied on FERC NEPA review to pre-empt or replace the NY SEQRA review process.

NY DEC then argued that the fatally flawed FERC review is a reason for denial under NY State DEC WQC permit rules.

But that NY DEC strategy won’t work in NJ for four reasons, because:

1) NJ does not have a State SEQRA.

Instead, NJ DEP conducts its own State “environmental review” in two ways: a) as a participant in the FERC NEPA process and b) under various piecemeal State permit regulations.

So, NJ can’t argue, like NY DEC did,  that FERC’s flawed NEPA review is fatal because FERC did not pre-empt or replace NJ DEP reviews and because their own NJ DEP reviews are fatally flawed too. NJ DEP does not they rely on FERC to supplant State environmental reviews.

2) NJ has its own EPA federally delegated State wetlands program.

NJ DEP relies on the NJ State wetlands program to satisfy the WQC review process. The DEP wetland review does not rely on FERC and does not have the specific basis for permit denials that NY DEC relied on.

So NJ can’t argue that fatally flawed FERC reviews are grounds for State WQC and permit denials.

3) the NJ WQC rules, which are codified in the freshwater wetlands rules, as NJ DEP interprets them, do not provide ANY basis for denial of a WQC.

The NJ DEP WQC rules allow “BMP’s” and “avoidance, minimization and mitigation” to satisfy compliance with Water Quality Standards (that’s because DEP relies on the NJ State freshwater wetlands act regulatory scheme to satisfy WQC requirements).

Additionally, NY DEC denied the WQC on the basis the stream disturbance from the proposed pipeline would cause temporary violations of temperature and sediment water quality standards. But NJ DEP rules explicitly authorize “temporary” violations of water quality standards.

4. The Sierra Club DC Circuit decision does not apply to NJ.

NY DEC relied on that DC Circuit Court decision as a “change in law”. Under NY DEC regulations, NY DEC may deny a permit if there is a “change in law”.

NJ DEP rules also allow DEP to deny a permit due to change in law.

But for NJ, because NJ DEP relies on State law and not FERC, there is no change in STATE law.  There is no change in law in NJ.

NJ DEP must not simply follow NY DEC, but must instead revise its own State regulations and permit review processes to address the “fatal flaws” they note in FERC’s reviews.

This would require revisions to both GHG emissions and the WQC review processes.

Absent such revision of NJ DEP rules and policies, the Murphy administration will lack an enforceable legal basis to deny pipeline permits.

I haven’t posted photos in awhile On The Road, mainly because I’m spending more time in the woods and mountains and am rarely in town near an internet connection.

I think my last post was from the Canadian shores of Lake Superior.

The skeeters and deer flies of northern Minnesota were intense and really bothered the poor dog. We came down the shore from Canada, through Superior National Forest and Boundary Waters and stopped in lovely port town of Grand Marais for a few days, then headed northwest through Ely and International Falls along the northern border.

So, as I sit this morning in a lovely northern Puget sound town Laundromat, here’s a summer update and some shots as we traveled west from there.

California is a disaster, but the wildfires aren’t as bad in the northern rockies and pacific northwest as they were last year, but the heat has been intense and the conditions are extremely dry. Sometimes it feels like an oven, it smells like the pine duff is smoldering, and that the forest is about to burst into flame.

NorthDakota was flat and hot and we went across as fast as possible.

Arriving in Montana, the streams and rivers were flowing high and cold, due to a record snowfall season in parts of Montana, Idaho, and Wyoming.

We spent a few weeks in Absaroka – Beartooth Wilderness – truly spectacular, particularly camping along the clear and cold Yellowstone, Boulder and West Boulder Rivers:

As we headed west towards Idaho, we stopped at Natural Bridge – a geological formation where the Boulder river has eroded a hole that makes it look like the river disappears into the ground. Here’s what it looks like on the outfall end. We scrambled down a makeshift “trail” – extremely steep and difficult, especially up and out but we got a rainbow!