WolfeNotes.com

DEP Failed To Enforce Cleanup Laws For Over 20 Years, Making The Problems Far Worse

Commissioner McCabe tried to sweep all that under the rug with false statements about the benefits of voluntary compliance and cooperation

DEP Perpetuates Urban Neglect While Keeping Backyards of The Gentry Green

[Update below – US Justice Department Settlement Policy Rejects These Kind of Private Deals]

The Murphy DEP’s self congratulatory press release on a $4.2 million “Natural Resource Damage” (NRD) “voluntary” settlement at the former American Cyanamid Superfund site is misleading and leaves a lot of relevant information out. (read the Settlement document)

Let me highlight just a few issues that were spun beyond recognition or omitted entirely.

I) The deal was not “voluntary”

DEP described the settlement as “voluntary”:

The agreement, one of the largest voluntary settlements for natural resource damages (NRDs) to the state’s groundwater, compensates the public for resource injuries caused by the sprawling former industrial site that straddles Bridgewater and Bound Brook along the Raritan River.

That is just flat out false.

Under NJ’s Spill Compensation and Control Act and NJ Water Pollution Control Act, corporate polluters are under a legal obligation to compensate the public for damages to natural resources caused by their toxic pollution. Furthermore, DEP implements the NRD program via regulations and the Attorney General backs that up via litigation.

There’s nothing “voluntary” about that.

In an embarrassingly display, Murphy Attorney General Grewal contradicts DEP’s spin and correctly highlights “enforcement“: (MyCentralJersey story)

“As we’ve made clear for years, the [Gov. Phil| Murphy Administration is committed to holding polluters accountable, which is why we breathed new life into our Natural Resource Damage litigation efforts,” Attorney General Gurbir Grewal said in a statement. “Actions like today’s are why I remain committed to continuing our robust efforts to promote environmental enforcement and environmental justice all across New Jersey.”

In another embarrassing major policy conflict between Murphy Cabinet members, AG Grewal also uses the correct rhetoric “holding polluters accountable”, while DEP Commissioner McCabe lamely an falsely touts not only the “voluntary” nature of the settlement, but claims there are benefits of “cooperation” with “responsible parties”.

II)  DEP Cooperation With Polluters Is a Failed Policy

DEP Commissioner McCabe touts alleged benefits of “cooperation” and “applauds” the corporate polluter:

“This agreement demonstrates how the State and responsible parties can work together for the public good,” Commissioner McCabe said. “I applaud Wyeth for working cooperatively with DEP’s Office of Natural Resource Restoration to amicably resolve their liability and to enhance natural resources in the Raritan River watershed. Cooperation like this ensures that our time is better spent restoring and improving outdoor spaces for the enjoyment of all New Jerseyans.”

That is a crock of shit. It reads like a press releasee from Wyeth. What the hell was McCabe thinking? Why would she praise a corporate polluter? Merely for coming to the table to settle and dodging a lawsuit (while paying pennies on the dollar of actual damage)?

DEP’s “cooperation” with corporate polluters – and failure to enforce toxic site cleanup laws – was the target of a highly critical US EPA Office Of Inspector General (OIG) Report. see:

• EPA REPORT BLASTS NEW JERSEY TOXIC CLEAN-UPS – State Failures to Enforce Law Lead to Worst Delays in the Country

The DEP’s failures at the Wyeth (formerly American Cyanamid site) were specifically targeted and audited in that OIG Report.

The OIG Report focused on several toxic clean-up operations that had been going on for more than 20 years without completion and concluded that –

• New Jersey had the worst track record in the nation, accounting for more than one quarter of all unresolved Superfund clean-ups more than 20 years old;
• Delays were primarily due to the state department of Environmental protection (DEP) not using legal tools available to them to force responsible parties to clean up pollution; and
• The U.S. EPA should step in and take over mired state-supervised clean-ups.

Cleanup delays, caused by DEP’s failure to enforce cleanup laws, allowed the toxic pollution to spread and migrate off site via the Raritan River and groundwater, and harm fish, wildlife and human health, including the pollution and closure of drinking water sources, see:

But you would never know any of this by reading DEP’s false and highly misleading self congratulatory press release.

III)  $4.2 Million is Peanuts

My initial reaction was $4.2 million is peanuts, especially for the magnitude of natural resource damages from that site.

Neither DEP nor Wyeth conducted a formal natural resource injury damage assessment and quantified those damages (as per NJ DEP site remediation and NRD program regulations). No doubt DEP’s failure to do that was intended to avoid another Exxon NRD fiasco, where DEP quantified almost $9 billion in NR damages, which then exposed their paltry settlement. See:

• Bungling By DEP Led To Exxon Deal.

DEP admits that in paragraph #8: (none of the reports referenced quantified economic damages):

(and despite that bungling, DEP still has failed to adopt regulations to quantify NRD damages – and what ever happened to the Senate bill (sponsored by Chairman Smith) that would have mandated that DEP adopt NRD regulations? See:

• Lessons for NJ Legislative Taskforce Developing Natural Resource Damage Standards

Will anyone ask Senator Smith and Attorney General Grewal and DEP Commissioner McCabe about this?

So how did DEP arrive at $4.2 million?

Answer: It was purely a deal (and a dirty one at that).

It reminds me of the recent oxycodone settlement with the Sackler family.

American Cyanamid and Wyeth are some deep pocketed corporate polluters that have billions in assets that could have been tapped (also recalls the Christie Exxon NRD settlement – 3 cents on the dollar).

IV)  Environmental Justice?

I was shocked by AG Grewal’s statement about “environmental justice”.

Attorney General Gurbir Grewal said in a statement. “Actions like today’s are why I remain committed to continuing our robust efforts to promote environmental enforcement and environmental justice all across New Jersey.”

The settlement money went to purchase land in East Amwell, a wealthy Hunterdon County town that is the opposite of an EJ community. DEP is doing more of this:

• NJ’s Landed Gentry – Open Space Has Become A Tool For The New Restrictive Covenants
• Keeping the Backyards of the Landed Gentry Green – With Public Funds

And while DEP is keeping the backyards of the Gentry green, they are ignoring and neglecting urban interests, like Trenton’s magnificent Duck Island, which could become a fantastic urban riverfront State Park with a little DEP leadership and NRD money:

• Murphy DEP Delaware River Litter Cleanup Day Exposes Hypocrisy, Neglect, And Another Missed Opportunity

What was AG Grewal thinking?

V)  Green Cover

I was very troubled to read that a NJ conservation group was directly involved in the Settlement:

Why I Miss My Real Camera and Lenses

Happy Halloween!

[Update below]

New York State regulators just put the Wall Street financial community on notice that they must begin to include the economic and financial risks of climate change in their business operations.

In an October 29, 2020 regulatory directive, NY financial regulators found:

We live in an increasingly complex world in which crises proliferate and magnify risks to our financial system. Together we are correctly focused on public health, the economy, and racial justice. A fourth crisis, climate change, poses significant financial risks as well.  Climate change is increasing the frequency and intensity of extreme weather events and is projected to have profound effects on the U.S. economy and financial system, which we must address.

NY regulators went on to elaborate on:

A) The Severity of Climate Change

B) Risks of Climate Change and Impact on Regulated Organizations

C) Risks of Climate Change and Impact on Regulated Non-Depositories

D) Risk Management

Based on this climate crisis, NY financial regulators mandated that:

DFS expects that all Regulated Organizations:

i. start integrating the financial risks from climate change into their governance frameworks, risk management processes, and business strategies.  For example, Regulated Organizations should designate a board member, a committee of the board (or an equivalent function), as well as a senior management function, as accountable for the organization’s assessment and management of the financial risks from climate change. This should include an enterprise-wide risk assessment to evaluate climate change and its impacts on risk factors, such as credit risk, market risk, liquidity risk, operational risk, reputational risk, and strategy risk; an

ii. start developing their approach to climate-related financial risk disclosure and consider engaging with the Task Force for Climate-related Financial Disclosures framework and other established initiatives when doing so.

It is stunning that NY financial regulators issued these regulatory mandates at a time when  former Goldman Sachs executive New Jersey Murphy’s administration has done nothing on the financial regulatory side (see NJ DOBI) and is running away from climate regulations.

As recently reported by NJ Spotlight:

Bill Wolfe, a retired DEP policy analyst and the current author of an environmental blog, said the comments “reflect an astonishing abdication of DEP’s regulatory responsibilities,” particularly coming from an administration that claims to be a leader in battling climate change.

“DEP must regulate to achieve deep emissions reductions and reduce risks as clearly reflected by an overwhelming scientific consensus,” Wolfe said. “Delay only makes matters worse.”

Wolfe argued that the DEP is required to regulate development under several laws, including the Flood Hazard Area Control Act and the Coastal Area Facilities Review Act.

Will NJ media fail to report on other State regulatory policy (i.e California and New York) and environmental groups continue to cheerlead for this abdication?

[Update: 10/30/20 – Jeff Tittel of Sierra Club has a good Op-Ed today in the Asbury Park Press, read the whole thing:

• Eight years after Sandy, NJ is more vulnerable for the next Superstorm

It is stunning that almost all NJ environmental groups are still praising this horrible record of Gov. Murphy and DEP Commissioner McCabe, despite this mind blowing fact Tittel buried:

“We are still building in vulnerable areas and granting permits under Christie-era regulations that don’t protect against climate change or storm impacts.” ~~~ end update]

DEP Attacks Critics, While Exposing Further Caving to Business Community Opposition

Senator Smith Invokes Right Wing “Regulatory Takings” Talking Points To Undermine Climate Regulations

DEP Is Rigging The Game In The Business Community’s Favor

NJ Spotlight today wrote a followup piece on their DEP climate regulation story last week.

Last week’s Spotlight story was based on an interview with DEP Deputy Commissioner Shawn LaTourette. It included remarkably irresponsible but revealing quotes – bordering on climate denial – which off course I blasted, see:

• The Murphy DEP Refuses To Regulate To Protect Against Climate Impacts

Just as I predicted (see: DEP In Damage Control Mode), in today’s  story, Mr. LaTourette attempted to walk back those remarks, but in doing so, he dug his hole even deeper.

LaTourette falsely attacked critics (while again hiding his dangerous policy views behind “science”). In doing so, he further exposed DEP’s capitulation to business community opposition, and invited an even more damaging attack by Senator Smith, longtime Chairman of the Senate Environment Committee.

Below I’ll explain what’s really going on, but first read the whole NJ Spotlight story:

• DEP warns environmentalists not to prejudge climate regulation review

I)  False Attack On Critics Will Backfire

In another stunning set of absurd remarks, Mr. LaTourette falsely attacks critics: (emphasis mine)

LaTourette said the critics were wrong to conclude that the DEP would leave it up to an individual to decide whether it was safe to build a house in a particular location.

“They have nothing to react to at this point,” he said. “For folks to jump to the conclusion that what we may propose to help ready our state to face this great risk, for folks to presuppose that whatever it is won’t be good enough, that’s not following the science.”

What an idiot. And now he not only confirms that he’s an idiot, but that he is motivated by bad faith.

As NJ Spotlight thankfully (but only partially noted), the criticism was based on LaTourette’s own statements:

LaTourette’s first remarks included this: “We are not saying: ‘You cannot build in a future flood-risk area.’”

But LaTourette’s “first” remarks were far worse than that. Here’s what he actually said, which included a statement that it was not DEP’s role to regulate and he used red meat right wing rhetoric to attack both government and regulation:

“We’re not at a point, nor do we think it’s our role, to tell people: ‘Don’t build here, you shouldn’t build there, you can’t do that,’” LaTourette said. …

He said the DEP wants to avoid being the “big, bad government” that imposes heavy-handed regulations.

officials have continued to gather input via a series of virtual meetings with stakeholders and aim to formally propose new regulations “early next year,” perhaps in the first quarter, LaTourette said.

And in trying to cover his tracks and justify his false attack on critics, LaTourette lamely tried to hide behind “science” when he said:

“For folks to jump to the conclusion that what we may propose to help ready our state to face this great risk, for folks to presuppose that whatever it is won’t be good enough, that’s not following the science.”

Critics weren’t “jumping” to any conclusion, critics were responding to MaTourette’s dangerous statements.

Of course, this has zero to do with “science” and by making that absurd “science” remark, Mr. LaTourette – a former corporate lawyer – reveals that he knows nothing about climate science and that the term is just another slogan or talking point to him.

If he were engaged in good faith, Mr. LaTorette should have apologized and admitted that he mis-spoke and set the record straight.

His remarks were so egregiously wrong and embarrassing that the Gov.’s Office and DEP Commissioner McCabe should have issued a public statement distancing themselves from his remarks and setting the record straight.

The fact that none of that happened basically confirms that he did not mis-speak and that his warped policy views represent the position of Gov. Murphy.

That is a very bad sign. Very bad. And instead of damage control, Mr. LaTourette sparked additional criticism.

II) DEP Is Caving To Business Community Opposition And Following Christie’s Anti-Regulatory Playbook

But Mr. LaTorette didn’t just falsely attack his critics.

In his effort at damage control, he revealed a major concession: i.e. that DEP will issue what’s technically known under administrative law as a “pre-proposal”, which he mistakenly called a “road map” (that misrepresentation is totally unacceptable, coming from a lawyer):

“Within the next several weeks, certainly before the end of the year, we will lay out a road map that folks can respond to, that we can take more comment on, before a rule is proposed,” he said. “It is the next phase in stakeholdering these important concepts.”

There are several bad things going on here. DEP is rigging the game.

Procedurally, a “road map” prior to a regulatory proposal is not just delay.

It amounts to a major political concession, because it provides an additional opportunity for the business community to organize, lobby, and work secretly behind the scenes – in the dark – to defeat any strict science based DEP climate regulations.

At the same time, this informal “road map” process also undermines the science and expertise of DEP staff, by allowing the business community to make unaccountable attacks on DEP’s recommendations, with no scientific basis and with arguments based on economics and politics.

Decades of DEP regulatory experience tell me that the business community always intervenes politically behind the scenes directly with the Governor’s Office, the DEP Commissioner, and legislators on major DEP rules and important DEP science that forms the basis of rules. To minimize this political abuse, NJ laws limit that intervention and provide transparency and accountability mechanisms.

The NJ Administrative Procedures Act (APA) – the law that governs DEP’s rule making – does not provide for any informal “road map”. The APA law has 3 regulatory procedures, all of which are formal and on the record, so that they may be reviewed by the public, the legislature, and a court of law (meaning that public comments and DEP responses are transparent). Those 3 valid procedures are: 1) a rule pre-proposal; 2) negotiated rulemaking; and 3) rule proposal.

In contrast to a formal “pre-proposal”, “negotiated rule making” or “proposal” (procedures legally authorized under the NJ Administrative Procedures Act), with a “road map”, the business community lobbying and interventions behind the scenes with the DEP Commissioner and Gov.’s Office will not be transparent and may occur in the dark with no fingerprints.

This invites abuse and undermines the science.

This “road map” process is exactly what the business community asked for.

Specifically, in an October 5, 2020 letter, NJBIA Vice President Ray Cantor (a revolving door former Christie DEP Deputy Commissioner) strongly criticizes the DEP’s regulatory process and urges DEP to slow down and provide additional opportunities for his business colleague to intervene politically: (emphases mine)

“Within the next several weeks, certainly before the end of the year, we will lay out a road map that folks can respond to, that we can take more comment on, before a rule is proposed,” he said. “It is the next phase in stakeholdering these important concepts.”

It’s obvious that NJBIA’s Cantor has the ear of DEP’s LaTourette. And it’s pathetic that LaTourette parrots NJBIA legal gibberish.

Finally, LaTourette’s DEP is following Gov. Christie’s regulatory policy and procedures, not those of Gov. Murphy.

In the first hour of his first day in Office, former NJ Gov. Christie issued Executive Order #2 , which was designed to “provide immediate relief from regulatory burdens” and prevent “costly”, “job killing”, “red tape” regulations on the business community. EO#2 includes an “advanced notice” process to solicit private sector  input before rules are proposed (the NJ APA does not define and authorize an “advanced notice” process. Christie just made that up). Christie’s EO #2 provided the exact “road map” informal process that Mr. LaTourette just confirmed.

Christie EO #2 provides:

III)  Senator Smith Invokes Right Wing Property Rights Talking Points

Finally, more troubling still were the comments of Senator Smith, longtime Chairman of the Senate Environment Committee.

I’ve worked closely over many years with Senator Smith and know – with the exception of the Highlands Act which he sponsored at the policy direction of Gov. McGreevey – that he strongly opposes DEP land use regulations and often carries the water of the development community.

Senator Smith – despite contradicting himself on the risk of sea level rise and supporting DEP Tourette’s absurd prior comments –  really undermined necessary strong DEP regulations by playing, right out of the box, the “takings” card: (emphasis mine)

If the DEP is taking an incremental approach to climate regulation now, that’s because it can’t afford the lawsuits that it would attract if it issued strict rules on development in future flood zones, argued Sen. Bob Smith (D-Middlesex), chairman of the Senate Environment and Energy Committee.

Smith, who frequently warns about the dangers of rising seas at the Shore,said any move by DEP to prevent development of future flood zones would prompt “inverse condemnation” suits claiming that the government has taken private property without compensating the owner, who is therefore entitled to payment.

“If the department took the position that ‘we’re going to tell people where they can and can’t build’, that’s inverse condemnation and you’ve got to have the bucks to back it up,” he said. “To take the role that some people would like to see them take, they don’t have the resources to do it.”

He said the DEP is taking a limited approach to new climate regulation for now, in hope of convincing the public that stronger measures will be needed later.

Smith, in addition to advocating very bad policy, is just flat out wrong on the NJ law on “regulatory takings”. His remarks reflect politics, not science and mis-state the NJ law on “regulatory takings”..

In order to trigger a compensable “regulatory taking”, a DEP regulation must totally extinguish all economic use of a property and violate “reasonable investment backed expectations”.

The risks of sea level rise, storm surge, extreme weather events, flood hazards, and related climate impacts have long been known, and not only to scientists and DEP regulators, but to the general public and investment community.

DEP has been issuing warning Reports on coastal hazards for decades and adopted a federally approved coastal management strategy that addresses coastal risks related to climate. NJ’s coastal land use law, CAFRA, was enacted over 40 years ago.

DEP also has been mapping and regulating inland flood risks under the 40 year old NJ Flood Hazard AreaControl Act.

If anyone didn’t know about all this, surely Superstorm Sandy opened their eyes almost a decade ago. Due diligence comes from simply reading the paper!

So there can be no “reasonable investment backed expectations” to develop in high risk areas.

Furthermore, there are many alternative uses of property that provide economic opportunities, aside from development. So, it would be rare indeed for DEP to extinguish all economic uses of land.

There is no NJ case law I am aware of directly on point with respect to DEP climate regulation and takings, but the precedent is strongly in favor of DEP’s rules, if they are based on science and designed to protect public health, safety and environment.

[Update – a reader agrees, and offers concrete examples:

you did a good job correcting Sen. Bob on takings law…empty land, unbuildable land at the nj coast still has a value as a buffer and privacy measure for neighbors – a market for empty lots for privacy sake…the price of that probably goes way up over time…

I’m a customer: I bid $5 for any unbuildable lots…will take up to ten to add to my portfolio and sell them to neighbors for $10,000 each. ~~~ end update]

Finally, Smith also completely misses the point regarding the objectives of development restrictions to address climate change:

“I don’t think it’s going to be enough to provide the information and the guidelines,” Smith said. “Not everybody is altruistic or thinks in the current moment what is really in their best long-term interests. Their view is very short term, and it’s very hard for them to do the right thing.”

DEP regulations are not designed to protect individual and economic interests. Of course individuals often seek economic gains that violate the public interest, risk pubic safety and health, and harm the environment – that’s why we have regulation in the first place.

DEP regulations are designed to protect the public interest, public health and safety, and the environment.

Shame on Smith, he’s as bad as DEP’s LaTourette.

[End Note: Of course, the science and regulatory issues are far broader than just addressing the risks from flooding under CAFRA and FHACA.

DEP’s own “climate PACT” initiative addresses both emissions reductions and “adaptation”.

In fact, it will be interesting to see how broadly DEP interprets its existing authority to mandate emissions reductions, especially from currently unregulated sources and sectors (e.g. buildings, transportation, forestry, agriculture, “small sources”, etc).

Equally, other state environmental agencies, such as NY State DEC, have built scientific and legal bridges between greenhouse gas emissions and adaptation, including important things like fossil infrastructure (e.g. pipelines) and air and water pollution control laws, greatly expanding regulatory authority to address climate, including “upstream” lifecycle and cumulative impacts.

DEP has very broad authority to comprehensively regulate emissions and adaptation, mandate emissions offsets, mitigation, and energy efficiency, etc but all indications thus far are that they are taking a very narrow approach and repeating historical flaws in various flawed DEP individual permit “silo” programs, instead of comprehensive planning and regulation.

Finally, we note that the recent “environmental justice” bill Gov. Murphy just signed into law does NOT address climate justice. That’s right: it does NOT regulate greenhouse gas emissions or adaptation in EJ communities.

How will DEP Climate PACT regulations address the EJ issues?

We’re not optimistic. More to follow, of course.

PS – In the body of this post, I didn’t want to waste readers’ time or a bullet on this lame idiot Jennifer Coffey, who bases her assessments on personal phone calls to DEP hacks.

In what is an unprecedented move, Jenn TRIPLED down!

Jennifer Coffey, executive director of the Association of New Jersey Environmental Commissions, said she had been concerned about what the new regulations would say, after reading LaTourette’s earlier comments, but feels more comfortable after speaking with him.

“I am confident that the DEP is going to be proposing concrete actions under NJ PACT to mitigate the impacts of climate change and to reduce greenhouse-gas emissions,” she said

That’s how you earn those large Wm. Penn and Dodge Foundation and DEP grants. It’s how you get political appointments to DEP lackey private industry controlled groups like the Water Supply Advisory Council. ~~~ end]

Coconino National Forest (just outside Flagstaff Az)

I get the urge for going
When the meadow grass is turning brown
And summertime is falling down and winter is closing in. ~~~ Joni Mitchell (1968)

(But I like Tom Rush’s version)