DEP Dispute Resolution – Deals Done in the Dark

DEP Denies Access to Records of New Office of Dispute Resolution

DEP Goes From the “Burning Platform” to the “New World Order”

DEP Commissioner Bob Martin - DEP Mission and "culture" need to change to promote economic development and treat business like "customers".

Our recent accountability project: “Taking a Closer Look at Christie DEP Changes” was dealt another setback today, when DEP again denied access to public records of the new Office of Dispute Resolution.

It is shocking that DEP feels that they can create an accountability free black hole, particularly given the significant role of the Office in environmental regulation and enforcement of environmental laws.

According to DEP’s website, the mission of the Office is:

The Department of Environmental Protection (DEP) has established the Office of Dispute Resolution to provide a forum other than the administrative and trial courts for resolution of disagreements between the regulated community and the DEP. 

This forum aims to serve a dual purpose: not only to reduce lengthy legal proceedings that can be costly for all involved, but also to establish more meaningful and effective lines of communication between environmental regulators and the regulated community.  Our mission is to ensure fair and efficient management and settlement of disagreements through alternative dispute resolution processes.

There is no mention whatsoever of the public in these important negotiations and “lines of communication”. I guess it is clear who DEP is serving and who their “customers” are.

Obviously, that Office has the potential to became a back door for secret deals that compromise enforcement of environmental laws.

To prevent that kind of abuse, that Office requires robust transparency measures to prevent obvious potential abuses, which environmental critics have described as “Let’s Make a Deal”.

[Like the new Office of Economic Analysis, the Office of Dispute Resolution was not established in legislation but was again created by Administrative fiat. And there seems to be issues of federal law and delegation involved, as I see no restriction on intervention in enforcement of federal requirements – calling EPA!] 

The Office was originally created back during the Whitman Administration (1994 – 2001), when Governor Whitman installed a personal crony – her college roommate – to head the effort. The Office was designed to implement Whitman’s “Open for Business” policy and was a key component of her DEP targeted “Strategy for Regulatory Reform” (STARR).

The Whitman “Open For Business” policy was exposed as a attack on the environment in an award winning investigative journalistic series by late reporters Dusty McNichol and Kelly Richmond, formerly with the Bergen Record.

In 2002, the Office was abolished by Gov. McGreevey’s DEP Commissioner Brad Campbell, who agreed with environmental advocates that the Office was inherently flawed, lacked transparency and accountability measures, undermined strict enforcement policy, and was prone to abuse and back room deals driven by politics and undue influence of special interests.

Under Governor Christie, the slogans have changed but the underlying [pro-business – anti-regulatory] policy remains the same.

Whitman’s pro-business rollbacks – under the guise “regulatory reform” – have become even more explicitly an attack on regulation and expansive effort to promote “regulatory relief“, under the guise of reducing “job killing red tape“.

As part of that Christie “regulatory relief” policy, DEP Commissioner Bob Martin restored the Whitman Office.

Commissioner Martin aggressively promoted his rollback “transformation”  agenda, in DEP press releases (e.g. like this and this) and with outreach to the business community.

This law firm’s summary of a DEP breakfast meeting with the Chamber of Commerce is typical in setting the giddy pro-business anti-regulatory tenor of the time: “A Glimpse into the NJ Department of Environmental Protection”

At a well-attended New Jersey Chamber of Commerce Breakfast in late May, Deputy Commissioner Irene Kropp described the evolving organizational responsibilities of three key managers at the New Jersey Department of Environmental Protection (NJDEP), Chief of Staff Magdalena Padilla, Chief Counselor Ray Cantor and Irene Kropp. These responsibilities are evolving as Commissioner Bob Martin develops the Department’s Vision Statement, which should be posted on the NJDEP website soon.  Shortly thereafter, the Department will publish its “Transformation Agenda,” which will be designed to implement the Vision Statement and presumably change the way NJDEP does business. […]

The Department recognizes that if changes are to be made, they need to be made early in the Administration. Time will tell whether the NJDEP can actually “transform” itself into a more user-friendly and service-oriented organization or whether it will simply be business as usual. We are seeing some positive signs.

Deputy Commissioner Kropp didn’t just dance for the Chamber of Commerce – she paraded around the DEP building, threatening DEP colleagues who didn’t fall in line with Martin’s pro-business agenda, including the infamous “burning platform” powerpoint:

Kropp threatens staff

Long term DEP career middle managers described it as the “New World Order” at DEP.

So, important questions jump to mind, such as:

Who is that Office meeting with?

What are the regulatory and enforcement disputes they are negotiating?

What are the outcomes of these negotiations?

What is the effect on the environment and the integrity of the enforcement program?

Why is DEP denying OPRA records requests for this information?

Are there any real investigative journalists still working in NJ?

We’ll keep you posted – no way DEP can get away with this OPRA abuse.

For the record, here is my OPRA request and DEP denial:

I request public records of the Office of Alternate Dispute Resolution, including: 1) participants in the program, including cases/disputes handled; 2) the administrative record of each case, e.g. all documents submitted as part of the dispute; 3) the disposition of cases/outcomes of the dispute resolution process; 4) Reports and/or records generated by the Office, including memoranda, case summaries, emails, phone logs, meeting logs, meeting notes,  and phone logs (sic) regarding disputes brought to the Office.

Here is DEP’s denial, again invoking the “overly broad” loophole – I smell a test case coming on this: 

Addendum Disposition Notes: This request has been denied on the basis that the request is overly broad and of the nature of a blanket request for a class of various documents rather than a request for specific identifiable government records, thereby being an invalid OPRA request (See Gannett NJ Partners v Middlesex, 379 NJ Super 205, 212 App Div 2005). In addition, OPRA does not require the NJDEP to conduct research & correlate data pursuant to N.J.S.A. 47:1A-9 & Mag Entertainment v Div of Alcoholic Beverage Control 375 NJ Super 537 (App Div 3/05), Bent v. Stafford Police Dept 381 NJ Super 534 (App Div 2005), and GRC Decision in Asarnow v Dept of Labor & Workforce Development, GRC Complaint # 2006-24 (May 2006).