Pay to Play On Special Septic Certification

Why are Democratic legislators attacking a Christie DEP regulation as “burdensome”?

Should a Maine based company that installs septic systems be able to convince the legislature to pass a bill that would over-ride a specific DEP regulation and open the NJ market to their technology and the company’s installers?

Should that Maine company parachute into NJ and – with virtually no public debate or environmental analysis – be able to get in front of very long lines in the legislature and DEP of those seeking changes to environmental laws and regulations?

Should that Maine septic company be granted market access in NJ, to the detriment of existing NJ based companies and professional engineers who currently do that work?

Should Democrats in the Legislature correct a problem created by Christie DEP regulations, under the guise of removing “burdensome” regulation?

Well, that’s exactly just what happened today, as the Senate Environment Committee approved a bill, S2914 (Greenstein – D, Mercer):

This bill would prohibit the Department of Environment Protection (DEP) from imposing certain certification requirements … the additional credential requirements for installation are inappropriate and burdensome for small businesses.

I testified in opposition to the bill on principle as violating separation of powers doctrine because the Legislature was trampling on the Executive’s regulatory role, in the absence of any substantive or factual legislative record or a demonstration that the bill’s proponents had exhausted multiple opportunities for a regulatory remedy by DEP.

The bill is a terrible precedent that could open the floodgates to many regulated industries seeking regulatory relief via special legislation – the very essence of pay to play.

Those floodgates are already wide open in Washington DC as the Trump Administration and Republicans in Congress are seeking to dismantle “the administrative state”, and environmental regulation in particular.

Why would NJ Democrats want to go there?

I also questioned whether allowing this company and technology and installers into the NJ market would impact the environmental performance or homeowner costs of septic systems.

Things got very animated after the bill’s proponent – a spokesman for a company from Maine –  interrupted my testimony to ask who I was!

Listen to the testimony – hit the link to “view or listen to prior testimony”.

I got some pushback from Chairman Smith, who cited the recent legislative consideration of the Highlands Septic Density Standard. I had to remind him that there was a robust public regulatory process by DEP and that his Committee held a rigorous oversight hearing on that issue. The Legislature was proposing a veto of those rules under a specific veto provision of the Constitution approved by voter referendum, not broad legislative power to block a regulation on behalf of a single (out of state) company. In addition, testimony during that process revealed significant flaws and loopholes in current DEP septic regulations, suggesting that they needed to be strengthened, not over-ridden as “burdensome”.

After the hearing, I spoke with the Man from Maine. He shook my hand and said “no hard feelings” and in frustration complained that he had anticipated the problem with the DEP rules and hired a Trenton consulting firm back in 2012 and “spent a ton of money” on securing the relief under the bill.

That sounds a lot like pay to play to me. And special legislation too.

So I just sent the below follow-up testimony:

Dear Chairman Smith:

I’d like to clarify the record and supplement my testimony this morning on S2914 as follows:

1. Separation of powers

Separation of powers issues remain despite the amendment to make the bill identical to the Assembly version A4350[1R]

http://www.nj.gov/dep/workgroups/docs/septic-20161216-invite.pdf

The amendment states that the bill would become “inoperative” upon adoption of future DEP regulations. By definition, that means that the legislation would apply upon enactment in the absence of DEP rules and until the adoption of DEP rules.

As such, the legislation would target and over-rule a duly promulgated administrative regulation.

2. Special legislation

In addition to Constitutional separation of powers issues, based on the testimony today and lack of clarity from thee sponsor Senator Greenstein, the bill may suffer problems as a result of restrictions on special legislation.

The bill appears to apply to, benefit, and be based on the lobbying of a specific named individual company from Maine that installs a specific septic technology.

3. Role of DEP Office of Legislation

Senator Thompson defended the bill based on a lack of opposition from the DEP Office of Legislation.

For the record, I worked in the DEP Office of Legislation and Intergovernmental Affairs as a legislative analyst for 4 years (1990 – 1994). At that time, there were at least 8 professionals assigned to that Office. The Office served a policy role, representing the views of the Commissioner and/or the Governor’s Office.

In contrast, today, John Hazen is a virtual 1 man operation. The volume of bills has not decreased since then.

But even with a staff of 8, it was not unusual for a bill considered by a Committee to not undergo technical review by the DEP program impacted by the bill.

It was also not unusual for the Department’s position on a bill to over-ride the concerns of technical program staff, or be influenced by policy or political concerns. There were also cases where the DEP would stand down on a particular issue and let the Legislature take the policy lead.

Accordingly, lack of opposition by DEP Office of Legislation should not be interpreted as support for it or a lack of concerns with it.

4. DEP Septic Stakeholder process

The lobbyist for the Maine based septic installed stated that the DEP had conducted a “public process” regarding the relevant regulations.

Please be advised, as I stated during my testimony, that that claim is factually false.

Specifically, on December 16, 2016, DEP held a a stakeholder meeting regarding “Standards for Individual Subsurface Sewage Disposal Systems” regulation (N.J.A.C. 7:9A) See:

http://www.nj.gov/dep/workgroups/docs/septic-20161216-invite.pdf

That meeting was not “public”. It was “By invitation only”, see the following notice from DEP’s website:

12/16/2016 – Standards for Septic Systems Stakeholder Meeting- Invitation Only
December 16, 2016 11:00:00 am

Invitation (pdf)
Rule requirements for authorized septic installers, for discussion (pdf)

However, by removing a regulatory barrier and effectively open the market to this company and its technology, there could be significant implications with respect to protection of groundwater quality from septic discharge, should the bill be enacted into law. There were no facts entered into testimony today that addressed the environmental implications of the legislation or the environmental performance of the septic technology described.

I again urge you to abandon this bill. At best, DEP has made a technical regulatory blunder that should be remedied by DEP regulation, not special legislation.

Please include these comments in the record for the bill.

Respectfully,

We’ll keep you posted.