Murphy Acting DEP Commissioner McCabe Senate Confirmation Hearing A Deep Disappointment

McCabe dodged policy issues, while defending controversial Christie DEP rollbacks

The Senate Judiciary Committee finally gave Gov. Murphy’s Acting DEP Commissioner Catherine McCabe a confirmation hearing on Monday.

At best, it was disappointing, both in what McCabe said and failed to say. Aside from RGGI and vague empty rhetoric, McCabe made no commitments to new policy initiatives and she not only failed to criticize the Christie DEP policy, she actually defended it (see examples below) and pushed back to rebut Senate questions that were critical of the Christie DEP!  (i.e. enforcement data, Highlands septic density, etc).

McCabe actually supported “customer service” (Bob Martin’s “culture change” mantra), stressed the need to expedite permits, praised the Office of permit coordination that provides consulting services to regulated industries, and denied that the Office of climate change was eliminated (Fact check: it was eliminated. And it was sent from the Commissioner’s office to Siberia, burried in the air program. But not only access to the Commissioner was eliminated. The Office’s name and mission were changed as well in a way that eliminated climate change. We know climate experts who were forced out or have retired and not been replaced.)

The Senate and McCabe both ignored the fact that Gov. Christie’s horrible “regulatory relief”, “federal consistency”, industry pre-proposal review & cost-benefit (Ex. Order #2); “red tape” (Ex. Order #3); and “unfunded mandates” (Ex. Order #4) and privatization policies are still in effect. When will Gov. Murphy repeal them? Stunning.

In addition to blaming the victims for not installing vapor recovery systems, McCabe flat out lied on the Dupont Pompton Lakes site by equating RCRA Corrective Action to Superfund. When was the last time a Congressman toured or news reported on a RCRA site? Exposing McCabe’s lies about equating RCRA Corrective Action to Superfund was the Record’s “toxic secret” series which included a video interview with McCabe’s former boss, EPA R2 Admin Judy Enck. Enck said she SUPPORTED Superfund. If RCRA and Superfund are equivalent, why did Enck – like many people who live in Pompton Lakes – want Superfund?

Despite this remarkable testimony, McCabe still generated exactly the positive news headlines the Gov. and McCabe sought: e.g. see the NJ Spotlight story: ACTING DEP COMMISSIONER MCCABE SAILS THROUGH CONFIRMATION HEARING.

We have a radically different assessment of that hearing than NJ Spotlight’s superficial wet kiss.

And we will be specific. Interested readers can listen themselves to verify all this at the Legislature’s website (click on Archived Proceedings: View or listen to prior proceedings).

Veteran Spotlight reporter Tom Johnson wrote that McCabe was “peppered with questions issues left unresolved from the prior administration”, but failed to report what McCabe replied to those questions. Below we fill some of those gaps in reporting.

Prior to the confirmation hearing, McCabe used a slogan to tout a “new era in environmental protection” under the Murphy administration and her DEP leadership. Sycophantic NJ ENGO’s, who endorsed Gov. Murphy, drank that Kool-aid.

So, the stage was set for exactly the Kabuki dance McCabe delivered and NJ Spotlight reported.

McCabe opened the hearing with a strong statement of her laudable qualifications for the job. She seemed to think that the Senate’s “advise and consent” confirmation power was limited in scope to qualifications and that policy oversight was beyond the scope of the hearing.

Wrong!

Concurrently with the hearing, I tweeted at least 20 problem responses by McCabe (17 plus 3 more, scroll down!). I won’t go into every one of those in this post today – like the predicted and misleading responses on Pompton Lakes – but instead focus on a handful of the worst. These were so bad that I wrote to Senate Environment Committee Chairman Smith the below letter (Sen. Greenstein asked McCabe questions the next day at DEP budget hearing):

Dear Chairman Smith & Senator Greenstein – Thank you both for asking good questions of Acting DEP Commissioner McCabe. I write because I was disappointed and even disturbed by several of her answers, as set forth below.

1. Highlands Septic Density rule 

The Christie DEP rule was vetoed by the Legislature as inconsistent with legislative intent. While McCabe recognized and agreed to comply with that veto, she defended the Christie DEP rule, accused critics of exaggerating or misunderstanding its impact, and adopted the same scientific and legal posture as the Christie DEP in regard to the need to revise the prior rule.

I was stunned when McCabe pledged to rerun the groundwater model (technically, there is no formal “model” per se) and re-propose a new rule.

There was nothing wrong with the existing rule, legally or scientifically or as a matter of public policy. The Christie DEP decided to roll it back based on settlement of a lawsuit filed by the Farm Bureau.

McCabe is taking the same legal and scientific position as the Christie DEP in regard to the Farm Bureau lawsuit.

Instead, she needs to work with the AG and petition the Court revoke the Christie DEP settlement agreement with the Farm Bureau and defend the existing rule. There is no need to re-propose any new rule.

 2. Drinking Water Quality Institute and MCL’s

In response to questions about drinking water risks and MCL’s, McCabe stated that she would consider the economic impacts of treatment technology.

She mis-spoke. She confused the NJ law with the federal Safe Drinking Water Act. Federal law authorizes EPA to consider costs in setting MCL’s. The NJ law does not.

Under the NJ Safe Drinking Water Act, DEP may not consider the costs of treatment in deriving the basis for MCL’s and proposing and adopting MCL’s as regulatory standards.

Furthermore, I was shocked that she was unaware of the Christie DEP’s policies and practices in blocking the DWQI from meeting, delaying proposal of MCL’s recommended by the DWQI, and abandoning a Corzine DEP proposed MCL for perchlorate under Gov. Christie’s EO #1 moratorium on regulations.

Not only was McCabe unaware of any of this  – I assume she was unaware because she swore an oath to provide “complete” testimony – but she contradicted and undermined your legitimate Senate oversight concerns.

Finally, in response to several questions on the need for and status of DEP plans to propose new MCLs, she dodged the issue by saying those questions were difficult to answer because they lacked specificity. Ironically, she then went on to pledge to adopt unspecified MCL’s “this summer”.

I believe McCabe was referring to the PFOA MCL developed by the Christie DEP, and not several other necessary MCL’s. Accordingly, it appears that McCabe is merely maintaining continuity with Christie DEP proposals in the pipeline and not reforming the DWQI and DEP MCL adoption process.

Finally, I found her responses to Senator Gill’s questions about childhood blood lead levels and Senator Dougherty’s questions about pharmaceuticals and unregulated chemicals at best evasive, if not highly misleading.

A prior NJ DEP Report found over 500 unregulated chemicals in NJ water supplies and a DEP consultant’s report analyzed the feasibility, performance and cost of treatment technologies to remove these unregulated chemicals. I’d be glad to provide these studies at your request. The fact that McCabe apparently is unaware of all this is troubling. She either failed to do her homework or has been played by DEP bureaucrats.

3. Liberty State Park (LSP)

McCabe did not disagree with Christie DEP LSP policies, and explicitly kept the door open on pending and future development schemes at LSP.

[Update: I’m getting questions on this so let me provide details:

1. On the golf course, while she rejected the bid submitted in response to the Christie DEP RFP, she then went out of her way to add a huge caveat: “this does not preclude further discussions”. This means the door is open. She could have said: “There will be no commercial development in LSP under my watch” but she didn’t.

2. On the marina she said “no final decision has been made, we are still talking to applicant.” That means the door is open. She could have said: I will soon deny this application and protect the LSP”. She didn’t do that.

On top of that, McCabe did not abandon future development schemes or criticize Christie DEP policy or the inappropriate private planning done under contract by NJ Future. ~~~ end update]

4. Compliance and Inspections and Enforcement

McCabe rejected – twice – the factual basis of Senate oversight questions that claimed Christie DEP enforcement actions were reduced from 30 – 60%. Todd Bates of the The Asbury Park Press had previously reported reductions in enforcement fines of even larger percentages, in the 80-90% range if I recall.That reporting led to editorials admonishing DEP for lax enforcement.

In addition, I have written that the DEP has not submitted the legislatively mandates annual report under the Clean Water Enforcement Act for over 8 years.

I urge you to request that DEP provide accurate data on enforcement over the last 8 years and pledge to comply with CWEA annual reporting requirements.

5. DEP regulatory authority to review pipelines

McCabe’s responses to pipeline questions were disappointing, evasive, and possibly in error. She also testified that she was not familiar with DEP’s C1 stream buffer program, which suggests either incompetence, dishonesty, or failure to conduct due diligence.

Despite being sworn to provide “complete” testimony, McCabe failed to mention recent Christie DEP regulatory changes that either continued prior lax oversight policies or actually weakened the regulatory framework for pipelines, i.e. the recent adoption of revisions to stream encroachment and wetlands regulations that apply to pipelines. Both rule proposals generated strong public opposition and the Legislature almost finally vetoed the stream encroachment proposal as inconsistent with legislative intent.

If McCabe is unaware of these huge controversies, she has not been properly briefed by DEP staff. If she has been briefed and is aware of these issues, she misled the Senate by omission.

Furthermore, despite specifically mentioning the New York State regulatory action to deny NY DEC approvals for a pipeline, McCabe may have misspoke on the legal basis for doing so. McCAbe cited Clean Water Act “Section 404Q.” That section applies to US EPA and Army Corps federal powers.

Instead, I believe she meant to cite NY DEC and NJ DEP’s Section 401 Water Quality Certification powers.

I urge you to request that DEP provide the legislature with a formal legal opinion from the AG on the DEP’s legal powers under Section 401 of the Clean Water Act and DEP’s State freshwater wetlands regulations on “water quality certification” powers. 

In the alternate, you could request that OLS provide a legal analysis of this body of law.

*6. RGGI

McCabe emphasized that the costs of re-entering RGGI would be “marginal” (as in small). She mentioned models. McCabe and BPU are currently negotiating, among other things, new NJ specific caps.

As you know, the initial RGGI cap and the NJ specific cap negotiated by Corzine DEP Commissioner Jackson were considerably higher that actual emissions. While RGGI has since watched down the initial caps by over 40%, I am very concerned, especially after hearing McCabe tout the “marginal” costs and the cost constraints that serve as exit ramps in the NJ RGGI law (i.e. when allowances exceed a $2 ton trigger?) that the new caps will not be restrictive and drive the emissions reductions required to meet the goals of the Global Warming Response Act.

To avoid a repeat of history, I urge you to conduct oversight and ask DEP to hold public hearings on proposed technical issues, like new RGGI caps.

7. Integrity of the regulatory process

In response to Senator Cardinale’s attacks on an individual DEP employee and the DEP Category one and wetlands regulatory programs, McCabe asked Cardinale and all legislators to call her if they learned of controversies in DEP regulatory implementation and enforcement, In response, she pledge that she personally would conduct a site visit to determine the facts and law.

This is a highly improper role for the DEP Commissioner and it invites improper ex parte communications and interventions.

The DEP must make regulatory decisions on the basis of the administrative record. The Commissioner is the final decision-maker and must be independent and objective and maintain an arms length posture. The Commissioner must base decisions on the formal record, not ex parte legislative communications.

I was deeply disturbed by McCabe’s testimony in this regard, where she seemed oblivious to these fundamental principles of environmental law and administrative practice. This is unforgivable given the fact the McCabe is an experienced attorney and former EPA Appeals Board judge who clearly knows better.

To cover bureaucratic malpractice with some rhetoric about being responsive to the people and closer to the problem as a State official – I refer to the responses where McCabe talked about the contrast between federal EPA and State DEP – is intolerable.

There are several other issues I was troubled by but they are beyond the scope of this already too long letter.

I urge you continuing oversight of these important issues.

Respectfully,

Bill Wolfe

ps – I would have copied McCabe on this letter but she has blocked my email. I urge you to forward it to her.

* the RGGI issue was not included in the letter.