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DEP Denies Public Records Request For Enforcement Documents

DEP Denial Makes A Mockery Of OPRA & Transparency

On June 16, the Murphy DEP and Attorney General jointly issued a press release touting their lawsuit against Ford Motor Company.

(I wrote about that lawsuit here. DEP has delayed response to my request for public records on the private lawyers representing DEP).

One highly unusual demand in DEP’s lawsuit against Ford Motor Company seeking unquantified compensation for damages to natural resources at the Ringwood Superfund site included a demand that the Court impose the statutory maximum civil penalties against Ford (i.e. $50,000 per day) for violations of two NJ environmental laws, for a period of over 45 years.

The total civil penalties alone would amount to over $1.6 billion (and that’s before considering the economic value of the natural resources damaged).

In my 35 year experience, I could not recall any case where DEP itself sought or successfully imposed $50,000 per day civil penalties over such a lengthy period. So, I thought a request that a Judge impose them somewhat over the top.

This prompted me to wonder if DEP had even taken any enforcement action against Ford for egregious crimes, which I believe warrant criminal penalties.

So, on June 27, 2022, I filed an NJ Open Public Records Act (OPRA) request for DEP enforcement documents:

I request the following public records:

1) DEP compliance and enforcement actions (Notices of Violation, penalty assessments, settlement agreements, fines collected, etc) issued to Ford Motor Company for violations of the NJ Spill Compensation and Control Act, the NJ Solid Waste Management Act, NJ Water Pollution Control Act and other applicable NJ laws and DEP regulations for activities at the Ringwood Mines Superfund site;

2) Written communications between Ford Motor Company and the NJ DEP regarding compliance and enforcement activities for activities at the Ringwood Mines Superfund site.

I received a reply from DEP today, which denied the request as follows:

Request Item # 1 & # 2 has been denied, being overbroad and improper as it does not define specific records. Government agencies are required to disclose identifiable government records that are specifically described in the OPRA request. See N.J.S.A. 47:1A-1 and -1.1. OPRA does not permit open- ended searches of agency files, nor does the law allow a request for every document an agency has on file on a specific subject matter. OPRA also does not require government agencies to conduct research in order to respond to a request for records. See, for e.g., MAG Entertainment LLC v Div. of Alcoholic Bev Control, 375 NJ Super 534, 549 (App Div. 2005); Bent v Twp Of Stafford, 381 NJ Super 30, 37 (App Div. 2005); Gannett NJ Partners v Middlesex, 379 NJ Super 205, 212 (App Div. 2005), 07/06/2022 which address the principles stated above. Additionally, requests for correspondence must identify the individuals or accounts to be searched and be confined to a discrete and limited subject matter. Burke v. Brandes, 429 N.J. Super. 169, 76-78 (App. Div. 2012); see also Elcavage v. West Milford Twp. (Passaic), GRC Complaint No. 2009-08  (Apr. 8, 2010) (stating that a proper request for email correspondence must contain “(1) the content and/or subject of the e-mail, (2) the specific date or range of dates during which the e-mail was transmitted or the emails were transmitted, and (3) a valid email Custodian Signature Date request must identify the sender and/or the recipient thereof”). In response to the interest of your Request, the NJDEP will email you, within 3 busines (sic) days executed Enforcement documents (e.g. Directives, Orders).

My OPRA request was very specific and narrowly tailored to specific enforcement actions and the communications between Ford and DEP regarding those enforcement actions.

Those documents would reveal, among other things: 1) if DEP were aggressive in taking enforcement actions against Ford (e.g. number of fines, amounts of penalties issued versus penalties collected, etc), 2) the response by Ford to DEP enforcement, 3) the negotiations between Ford and DEP, and 4) the final settlements and fines and penalties collected.

Notice that after denying the most important documents, that DEP only agreed to provide “executed Enforcement documents (e.g. Directives, Orders).” – DEP explicitly omitted the specific records I requested, which included fines and penalties assessed and actually collected.

The DEP denial raises serious concerns and prompts troubling questions.

I can only assume that the DEP does not want the public to know how they enforced environmental laws against Ford

I can only assume that they would be embarrassed by all that.

What is DEP hiding? Why are they hiding these documents? Who are they protecting?

Their denial of these public records makes a mockery of OPRA and all notions and expectations of transparency and accountability.

DEP only wants the public to know of the spin they issue in press releases.

Will a NJ legislator conduct oversight and demand that DEP produce these records?

Will a NJ legislator seek amendments to OPRA to prevent continuing abuses of the loopholes in the law and the absurd requirements established by opinions of NJ Courts?

Don’t hold your breath –

The Legislature is bought and paid for by the same corporate interests that want these DEP records kept secret and that have their way with former corporate lawyer DEP Commissioner LaTourette.

[End Note: I just sent this note to our favorite reporters and editors, who so favorably parroted DEP’s press release:

Gee, I wonder why DEP would deny an OPRA public records request for enforcement documents at Ford Ringwood, especially after they just issued a press release touting their lawsuit, which, among other things, demands over $1.6 billion in civil penalties alone?

Wouldn’t it be relevant to DEP’s credibility to know if they had used their own administrative enforcement powers to impose penalties, before asking a judge to do so?

Court Strikes Down EPA’s Interpretation Of  The “best system of emission reduction”

NJ DEP Shares The Same Interpretation As The Supreme Court

DEP Claims “beyond the scope of the NJDEP’s authority”

The US Supreme Court, in what is widely condemned as a radical pro-corporate polluter opinion, struck down the Obama EPA’s Clean Power Plan.

The Court’s decision focused on and rejected how EPA interpreted the federal Clean Air Act’s mandate that EPA  power plant regulations must be based on the “best system of emission reduction”.

The crux of the decision turned on how EPA broadly interpreted that phrase to mean that the “best system of emission reduction” included actions beyond individual power plant pollution controls and included off site actions, like “generation shifting” to lower CO2 emitting fuel sources (“fuel switching” to natural gas) or energy efficiency and renewable power or pollutant trading to address broader grid scale emissions.

Here’s how the Court’s Syllabus describes that EPA interpretation:

• Christie DEP Approves Another Fossil Fueled Power Plant

Here it is, based on DEP’s own regulatory findings expressed in a response to public comment document on an air permit for the proposed BL England power plant (DEP text from permit is in italics):

“State of the art” in pollution control (SOTA) far too narrow

The DEP regulations define “state of the art” in pollution control (SOTA) very narrowly. According to DEP response to public comment:

“Comment: … The commenters stated that regulated GHG emissions could be reduced or eliminated by energy efficiency, reduction in energy demand, demand management, and/or renewable energy; none of these “pollution control” methods were considered. …

Response: Pursuant to N.J.A.C. 7:27-22.2, New Jersey Title V Operating Permit Requirements apply to a facility as defined in N.J.A.C 7:27-22.1. At N.J.A.C. 7:27-22.1, a facility consists of “the combination of all structures, buildings, equipment, control apparatus, storage tanks, source operations, and other operations that are located on a single site or on contiguous or adjacent sites and that are under common control of the same person or persons.” Thus, requirements for off-site measures that are not under control of the owners or operators, such as reduction in energy demand or demand management, are beyond the scope of the NJDEP’s authority to review an operating permit application. Also, the NJDEP cannot redefine a project to include renewable energy.”

This DEP rule contrasts with a far broader approach under EPA federal rules. Pollution control technology is generally understood and defined by EPA regulations:

“the term “control technology” is defined broadly to be consistent with section 112(d)(2) of the Clean Air Act to include measures, processes, methods, systems or techniques which reduce the volume of, or eliminate emissions of, HAP through process changes, substitution of materials or other modifications; enclose systems or processes to eliminate emissions; collect, capture or treat HAP when released from a process, stack, storage or fugitive emissions point; are design, equipment, work practice, or operational standards; or a combination of the above.

Obviously, “State of the Art” in pollution control for greenhouse gases MUST include consideration of energy efficiency, demand management, and renewable energy. That may require legislation or perhaps the next DEP Commissioner can issue regulations.

So, there it is. DEP rejects the SOTA GHG policy I find “obvious”.

Just like the US Supreme Court says EPA can not regulate the energy mix on the grid, DEP claims they can only regulate a “facility”. Let’s repeat DEP’s own words here:

requirements for off-site measures that are not under control of the owners or operators, such as reduction in energy demand or demand management, are beyond the scope of the NJDEP’s authority

NJ DEP is as backward as the right wingers on the US Supreme Court who seek to dismantle the administrative state.

Radical “Major Questions Doctrine” Requires Specific Congressional Authorization

NJ Democrats Pushed A Bill That Would Have Imposed Same Requirement On DEP Rules

I thought this little piece of history would be important as the conversation expands on the implications of the US Supreme Court’s decision last week that struck down the Obama EPA’s Clean Power Plan.

In that decision, the Court sought to legitimize a radical new legal doctrine known as the “Major Questions doctrine”.

Basically, that doctrine requires that Congress must enact specific legislation to authorize Executive branch agency regulations.

Hence, federal agencies would be prohibited from promulgating regulations unless they could point to very specific legislation that authorized the regulations in question.

As I’ve written numerous times, the Court’s decision and the “Major Questions” doctrine are longstanding goals of the corporate and radical right wing libertarian community and key tools to attack and dismantle what they call “the administrative state”.

So, I thought people would like to know that NJ Democrats attempted to pass NJ legislation to do exactly the same thing, by requiring that DEP could only adopt regulations that were “specifically authorized” by legislation.

The Democrats pushed this bill as part of implementing Gov. Christie’s “Regulatory Relief” policy under Executive Order #2 and “Red Tape” attack on DEP regulations under Executive Order #3.

That bill would apply across the board to all DEP regulations – air, water, drinking water, hazardous waste, et al – not just block DEP climate regulations.

I testified in opposition to and wrote about that bill multiple times, and specifically on this radical provision at least twice back in 2011, during the Christie Administration, as follows:

In a March 13, 2011 post, I wrote:

“The legislation involved (A2486 2R) (Burzichelli, D-Oil) would codify the Christie federal consistency policy – and go even further by prohibiting proposal of rules “not specifically authorized” by the legislature, a provision the sponsor stated would require legislative approval of more stringent rules prior to agency proposal. This would put the legislature in charge of rulemaking, a radical rollback in the modern framework of Administrative and environmental law, which are founded on a broad delegation doctrine, where the Legislature delegates power to executive branch agencies to use their scientific expertise to fill in the details of complex legislation.”

The next day, after crashing a NJ BIA luncheon and getting the chance to brief a reporter on the issues in the bill, I wrote:

Soon after I got there [i.e. Trenton], I got a call and was invited to a meeting with a reporter for a major metropolitan newspaper, when Jeff Tittel popped in to advise that the bill had been held. I was just explaining the problem of delegation and modern doctrine of administrative law since the US Supreme Court’s 1935 Panama and Schechter Poultry New Deal decisions (professors Nate Hackman and Ted Lowi would be proud), when Jeff blurted out something about the Tea Party, Koch brothers, and a Democratic fundraiser.

That briefing ended abruptly, as the media would much rather write about simple scandal, than complex issues of science, regulatory policy, and administrative law.

The bill ultimately died, and I’d like to think that my legislative testimony opposing the bill and my writing about it helped kill it.

DEP Wetlands, Coastal & Stream Encroachment Permits Are Vulnerable To Challenge

DEP “Reliance” Policy Dooms All Permits

Regulatory Implosion

The DEP has published scientific findings on climate impacts that effectively legally destroy all prior DEP delineations of regulated wetlands and flood hazard areas (coastal and inland).

Specifically, DEP has published science that says that climate change already has and will continue to significantly alter rainfall patterns, storm frequency and intensity, flood elevations, sea levels, and storm surge, thereby changing the hydrology of wetlands and the elevations of flood hazard areas.

The issuance of DEP’s science and findings were driven by Governor Murphy’s Executive Order #100, which makes similar findings about climate impacts.

The DEP science and Gov. Murphy’s Executive Order provide powerful evidence of changes to environmental conditions and facts on the ground. These facts have huge regulatory significance.

Every single DEP wetlands and stream encroachment (Flood Hazard) permit is based on a DEP jurisdictional determination and a delineation of the regulated wetland and flood hazard area.

Every single one of these DEP delineations – and there are thousands of them – comes with a very specific boilerplate “reliance” provision regarding the wetlands and flood hazard delineation.

That “reliance” provision states that, should conditions change or new facts emerge, that the delineations are subject to revision. Here is a boilerplate example:

• DEP wetlands “reliance” regulations: 7:7A-4.6 Duration of a letter of interpretation
• DEP flood hazard delineation regs: 7:13-3.7 Revision of a Department delineation by application
• DEP coastal hazard delineation regs: 7:7-9.18 Coastal high hazard areas
• 7:7-9.25 Flood hazard areas

Based on DEP’s own published science, every single prior DEP delineation may no longer be “relied” upon by property owners, developers, banks, insurance companies, and real estate firms, because the delineation was “based on inaccurate and incomplete information”.

Environmental groups should attack each and every one of these DEP permits and challenge the jurisdictional and delineations based on “inaccurate or incomplete information”.

They should demand that DEP “void the original letter of interpretation and issue a revised letter of interposition” based on DEP’s own most current science.

And do this on every single DEP permit, wetlands LOI, and flood hazard area delineation!

Perhaps groups can start by challenging every new development they oppose – demand that DEP reopen permits and rescind prior jurisdictional determinations and delineations.

There is no need to wait for DEP to propose those long delayed climate PACT land use regulations.

It is almost certain that any new DEP Climate PACT land use/flood hazard regulations will grandfather (exempt) all prior DEP permits and approvals, as well as those in the pipeline. The reliance issue is the tool to attack these permits and delineations that DEP will exempt (grandfather) from new rules.

It also would make sense to formally put insurance companies, banks, real estate firms, local governments (who issue land use approvals conditioned upon DEP permits), and all related institutions on notice that there can be no “reliance” on prior DEP jurisdictional determinations and delineations.

Of course, environmental groups could also file petitions for rulemaking to demand updates to these regulations to reflect best available science.

The House Of Cards is about to fall.

Let the War begin!

[End Note: an ironic h/t to the Cato Institute, whose US Supreme Court brief attacking EPA CO2 regulation reminded me of the “reliance” issues. Live by the sword, die by the sword!]

By now, everyone knows that the US Supreme Court issued a bad decision on EPA regulation of carbon dioxide emissions from existing power plants (coal and natural gas fired – read the opinion “West Virginia v. EPA“).

I will post a substantive assessment of that soon, but for now I just want to make a few broader points based on media reports and reactions from environmental groups.

Media and environmental groups are both exaggerating AND under-estimating the implications of the opinion. That distorts what’s going on because:

1. That obscures and let’s the Obama EPA off the hook for the flawed regulatory strategy in crafting the rule the Court stuck down. There were alternatives EPA didn’t choose – one of which was mentioned in the dissenting opinion by Justice Kagan. For our NJ friends, those strategic decisions were made by Obama EPA Administrator Lisa Jackson, and we criticized them at the time. (also see this post on the EPA NEW source CO2 emission rules, which discusses alternative regulatory strategies for the then neglected existing sources in the updates. The same timid strategy is reflected in EPA’s “Tailoring rule”.)

(and there’s a long NJ history on these rules, see:

• Whitman Set Back EPA Regulation of Greenhouse Gases By Over a Decade

2. It also lowers expectations for the upcoming Biden EPA regulations, thus allowing Biden to blame the Court in much the same way he blames Joe Manchin and the republicans for his failures.

3. In contrast, by focusing narrowly on the Court’s action to strike down the specific EPA regulation at issue, folks are missing the far larger and more significant new “major questions doctrine” the Court articulated – particularly in Gorsuch’s concurrence – which will undermine not only the EPA climate rules, but all EPA regulations as well as far more broadly all the regulations proposed by all federal agencies.

4. This decision was not unexpected and is the culmination of a 50 year long campaign of radical ideology and the result of a corporate strategy initiated in 1971 by the Powell Memo. It was locked in with the appointments of Justices Gorsuch and Kavanaugh, which we predicted and wrote about.

• Gorsuch is a fundamental threat to the “New Deal Administrative State”

• Confirmation of Judge Kavanaugh Would Cement Corporate Capture Of The Supreme Court

[Notes: Chief Justice Roberts – a former Federalist Society contributor and corporate lawyer  for the Chamber of Commerce, a major player in the Powell Memo strategy – wrote the majority opinion. It is not hard to see how radical ideas from the Cato Institute’s Amicus brief influenced his opinion and the concurrence by Justice Gorsuch.

For a discussion of the Powell Memo’s longtime corporate deregulatory strategy, read the absolutely superb Amicus brief filed by US Senators Whitehouse, Sanders, Blumenthal and Warren. Note that corporate NJ Senator Booker is not on that brief. Remember that the next time he spouts some green BS. Here’s a taste of the argument:

As the excesses of powerful industries were reined in, however, these same regulations fostered resentment among those seeking to operate without such restraint.

These cases are the direct product of that resentment…. The theories and arguments were incubated, grown, propagated, and distributed by a well-funded apparatus that has selfish and destructive goals. These industry interests hope to cripple the federal government’s ability to regulate them by fostering hostility toward what they pejoratively call the “administrative state.” Their efforts, carried out by their front groups, proliferate through the political process, through faux intellectual ideas and grassroots campaigns, strategic appointments and policy proposals in the executive branch, and massive campaign contributions to those running for Congress.]

5. We were vindicated (again!). While all the environmental groups were cheerleading the “transformative” nature and they all predicted huge emission reductions from the Obama EPA rule, we were one of the few (the only voice in NJ, as far as I know) who strongly criticized it (at the time it was proposed) as doing very little. Here’s Kagan’s dissent at page 23:

6. Although NJ DEP implements the federal Clean Air Act, the DEP’s proposed CO2 emission rule was based on NJ State law. But that does not mean that there will be no impact on the DEP proposal. The Court’s decision, indirectly, will have spillover effects and raises related legal issues for a NJ DEP proposed regulation of CO2 emissions (and some are embedded in DEP’s interpretation of the NJ State law standard of “advances in the art of pollution control” – or what’s commonly known as “State of the art” SOTA). I also have written about those legal vulnerabilities and specifically warned DEP Commissioner LaTourette and NJ policymakers. See:

• How The Global Warming Response Act Was Stripped

• Who Stripped DEP Permit Authority From The Global Warming Response Act And Why Did They Do It?

• Federal Courts’ Attacks On Biden and EPA Climate Regulations Have Huge Implications for NJ And Murphy DEP CO2 Emission Proposal

7. And while I’m on the topic of accountability, it wasn’t just coal states like West Virginia the sued to block the Obama Clean Power Plan – As I wrote, NJ Gov. Christie did as well:

NJ was one of those 28 states that challenged the Obama EPA rules – the Christie Administration joined coal states like West Virginia (read the brief).

Here’s a note I sent to out friends at Catskill Mountainkeeper in reply to their alert to members – I’ll expand upon the points in a future post (and give me a break: this isn’t a law review article, it’s Wolfenotes!):

Hi – just wanted to clarify and correct your statement I just received, which said:

“the Supreme Court ruled that the EPA was not authorized to regulate carbon emissions from existing power plants under the Clean Air Act”

That is NOT what the Court ruled.

The Court struck down the specific form of regulation that EPA adopted under the Obama Clean Power Plan.

By describing the decision this way, you not only get it technically wrong legally.

You also:

1) absolve the Obama EPA for a poor strategic legal choice in drafting the regulation struck down by the court (there were alternatives, including one mentioned in Kagan’s dissent), and

2) More importantly, you diminish expectations on the Biden administration’s EPA upcoming regulatory efforts. At worst, thus allowing Biden to use the Court as the bad guy the same way he uses Manchin and the Republicans. 

Please correct your inaccurate and poorly phrased alert to members.

Bill Wolfe