Water Pollution Enforcement Put Under the Gun of Christie Moratorium

Middlesex County sewage treatment plant

Today DEP held the last informal “stakeholders meeting” on water pollution control enforcement regulations, one of 12 major environmental rules targeted and blocked by Governor Christie’s moratorium and “Red Tape Review” process.

In another disturbing scene, DEP  regulators were brought under pressure by industry lobbyists to be more “business friendly“. This time the focus was on industry efforts to pressure DEP to relax a range of compliance and enforcement policies and practices, from facility inspections, to record-keeping, to monitoring and reporting, through mandatory enforcement fines and penalties.

However, the stunning success of NJ’s Clean Water Enforcement Act provides perhaps the clearest example of why the Christie Executive Order and Red Tape Review attack on DEP regulations and environmental protection are so ill conceived.

Oversight of polluting industries by DEP inspection and enforcement are necessary to assure protection of public health and the environment. Strict DEP enforcement maintains a level playing field so that good actors that comply are not placed at an economic disadvantage by unscrupulous businesses, and serves as a deterrent to violations of water pollution laws.

Here’s how DEP justified the enforcement rules (see: Water Pollution Control Act – N.J.A.C. 7:14-2 and 8 – readoption without amendment) – it is pretty clear that enforcement is significant and that stringent oversight must be maintained:

The Department anticipates that a positive environmental impact will result from the rules proposed for re-adoption at N.J.A.C. 7:14-2. The construction of wastewater treatment facilities is essential to the future of New Jersey. These facilities serve many purposes, including the removal of pollutants from raw sewage prior to discharge to the State’s waterways and the protection of the public health. In turn, these facilities help maintain the recreational and ecological attributes of the waterways, such as swimming, shell fishing and other activities.

The rules proposed for re-adoption at N.J.A.C. 7:14-8 will continue to have a positive environmental impact because the rules serve as a strong deterrent to those who would violate New Jersey’s water resources statutes and the rules provide the regulated community with the incentive to conduct their activities in conformance with the Department’s rules. … […]

The rules proposed for readoption at N.J.A.C. 7:14-8 contain requirements or standards that exceed Federal requirements or standards. New Jersey’s Water Pollution Control Act, as amended by P.L. 1990, c.28 (see N.J.S.A. 58:10A-10), exceeds the Federal program by requiring that mandatory minimum penalties be assessed for certain types of violations and imposes restrictions upon settlement of these violations. … The Federal statute at 33 U.S.C. §1319(g) provides the United States Environmental Protection Agency with the authority to assess administrative penalties, but there are no mandatory minimums or settlement restrictions set forth therein. …[…]

The Department has determined in order to protect public health and the environment from the pollutants in wastewater, that it would not be appropriate take into consideration the size of the business involved in the construction of wastewater treatment facilities. The Department has balanced the need to protect the environment against the economic impact of N.J.A.C. 7:14-2 and has determined that to minimize the impact on small businesses would endanger the environment, public health and public safety. No exemption from coverage, therefore, is provided.

But Governor Christie’s Executive Orders 1-3 have a very different policy in mind than that articulated above by DEP.

The Christie EO’s seek to relax NJ’s stricter State standards to federal minimums. They seek waivers from requirements and to inject economic compliance cost considerations as a rationale to rollback DEP standards, without adequate consideration of the environmental and public health benefits of those protections. In fact, Christie has not even attempted to define a methodology for conducting cost benefit analysis and DEP has no capacity to conduct such analysis, yet his Orders mandate CBA. Reversing 35 years of practice, the Christie EO’s place control of these science and legal decisions not in independent and expert DEP hands, but in a politicized Regulatory Czar in the Lt. Governor’s Office.

The new requirements of Christie’s Orders, the moratorium, and the “Red Tape Review” process have created multiple opportunities for polluters to advocate for weakening regulations and enforcement.

Today’s discussion began with polluters pressuring DEP to apply enforcement discretion in a way to soften the seriousness of the enforcement response and reduce fines and penalties.

DEP’s enforcement policy and penalty matrix is based on the conduct of the polluter (e.g. repeat offender?) and the seriousness of the violation in terms of its impact on the environment. From there, the industry attack on DEP enforcement was expanded to urging DEP to do even more compliance assistance and shift to voluntary compliance, then to self disclosure penalty mitigation/audits in lieu of DEP inspections, and even to a radical privatized self certification approach. So, if nothing else, the process opened the door to more enforcement policy rollbacks.

In contrast, to countervail this industry pressure, I offered numerous suggestions on how DEP could incorporate environmental metrics in DEP program performance evaluations and how DEP could include economic business considerations into enforcement.

Constructive ideas offered ranged from consideration of public health and environmental benefits as a basis for enforcement policy, to quantifying fines and  penalties based on the economic benefit a polluter actually gains from violating environmental laws.

For example, polluters often consider enforcement fines merely a cost of doing business. Deterrence is measured economically by this formula:

(probability of detection) X (magnitude of the penalty) = economic deterrence

If compliance cost $1 million, but the probability of DEP detection is 1 in 10 (10%) and the fine is $50,000, then it ALWAYS pays to pollute.

DEP should set fines at a level to capture 100% of the economic benefit of violation. This would provide economic deterrence.

But those suggestions were summarily rejected by DEP.

I also asked about enforcement of NJ’s number 1 water quality pollution problem, especially in NY/NJ harbor. This is caused by uncontrolled discharge of raw sewage from combined sewer overflows when it rains. This is known as CSO. According to DEP General Permit: “There are approximately two
hundred six (206) CSO Points currently authorized under the General Permit.”

Amazingly, I was told that DEP does not use enforcement tools to solve this problem.

Now there’s an enforcement issue that warrants attention from the advocate community. But unfortunately, the lead ENGO representative literally left the room when this issue was broached at the end of a long meeting (that was largely mis-focused on the minutia of underground storage tank requirements).

Now how strange is that?