Murphy DEP Flouts Clean Water Enforcement Act And Environmental Management Accountability Act

DEP No Longer Prepares Mandated Public Reports On DEP Enforcement & Permit Performance

Intolerable Lawless Bureaucratic Arrogance And impunity

When DEP denies the OPRA’s and is forced to admit that these Reports don’t exist, maybe the NJ press corps and environmental groups will get off their lazy incompetent assess and do something about it. ~~~ Critical Information Buried In The Bowels Of The Bureaucracy

Although the current Commissioner of DEP is a [former corporate] lawyer, the DEP seems to believe that they no longer are required to comply with environmental laws that were designed to provide important information to the public and hold DEP accountable: the Clean Water Enforcement Act (CWEA) and the Environmental Management Accountability Plan Act (EMAP).

Those laws are still on the books. They require  DEP to prepare and submit annual public Reports to the Governor and Legislature.

But the DEP no longer does so.

And the excuses they provide to explain why they don’t are factually false and outrageous examples of intolerable lawless bureaucratic arrogance.

I) Clean Water Enforcement Act

Back in the late 1980’s, NJ environmental groups, led by NJ PIRG, documented that DEP systematically failed to enforce violations of water pollution control permits.

Corporate polluters and sewage treatment plants were getting off the hook and water quality declined as DEP failed to do their job and inspect polluting facilities, monitor discharge data, and enforce permit requirements designed to protect water quality.

The environmental groups mounted a Statewide clean water campaign and were able to secure passage of the Clean Water Enforcement Act (CWEA). Governor Florio, a national environmental leader, signed the bill into law.

The CWEA was a national model and the strongest clean water law in the country. It eliminated DEP’s “enforcement discretion” and mandated penalties for violations of water pollution permits. It mandated annual DEP compliance inspection.

The CWEA was enacted to hold polluters and DEP accountable.

To do so, it also mandated that DEP submit an annual public Report to the Governor and the Legislature.

That annual Report provided important statewide information on how DEP was enforcing clean water laws. It named polluters and provided the public with information on many things, including identifying “significant non-compliers”, the enforcement fines DEP imposed, the nature of the violation, the name and location of the polluter and the polluters’ stream or river, etc. – including criminal actions, criminal investigations and emergency response incidents.

Over time, these Reports were able to document trends in compliance and DEP enforcement.

Every year, NJ PIRG would hold a Trenton press conference and use the CWEA annual Report as a “report card” on the performance of polluters and the DEP. Those press conferences generated press coverage across the state and the public was informed and able to hold DEP and the polluters accountable.

The pressure created by the disclosure of information by the CWEA annual Report, environmental group monitoring, and media coverage served to better protect water quality.

The polluters and DEP always hated the CWEA and tried several times to convince the legislature to gut the law. They failed and the CWEA remains in place.

Here’s how DEP describes the Clean Water Enforcement Act (emphases mine):

In 1990, the Legislature enacted substantial amendments to the Water Pollution Control Act (WPCA), commonly known as the Clean Water Enforcement Act, P.L. 1990, c. 28 (CWEA). The CWEA requires the department to inspect permitted facilities and municipal treatment works at least annually. Additional inspections are required when the permittee is identified as a significant noncomplier. The CWEA also requires the assessment of mandatory minimum penalties for violations of the WPCA that are considered serious violations and for violations by permittees designated as significant noncompliers.

The CWEA requires the department to submit a report on the implementation of the CWEA’s requirements to the Governor and the Legislature by March 31 of each year. The statute also specifies the items that the department must include in the report. The department has organized the required information into several categories, including Permitting, Enforcement, Delegated Local Agencies, Criminal Actions, Fiscal, and Water Quality Assessment.

The DEP website notes that the most recent CWEA Report was filed over a decade ago, in 2010.

I strongly urge readers to hit the links and read those CWEA Reports to see the critically important information they provide. Start with the 2010 Annual Report.

Then consider whether you could readily reproduce anything remotely like the information provided by these Reports via the DEP’s “data miner” (aside from all the time and effort you would have to invest in doing so, instead of well paid bureaucrats at DEP doing the work they are paid and legally required to do).

So  I recently submitted a Open Public Records Act (OPRA) request for the annual DEP CWEA Reports for the period 2011 – 2020.

DEP denied that request, and provided the following reason why they no longer comply with a legislative mandate:

Since 2011, the NJDEP no longer produces the traditional Annual Reports due to the labor-intensive and budgetary constraints  involved in generating such a comprehensive report. The NJDEP has been attempting to comply with Section 9 of P.L. 1990, c.28 (NJSA 58:10A-14.1 – 14.3) by making information available on its website. The bulk of the information that is available can be found through the NJDEP’s DataMiner application (https://www13.state.nj.us/DataMiner), the water quality website (https://www.nj.gov/dep/dwq/), and the enforcement website (https://www.nj.gov/dep/enforcement/). If there is some specific information from the traditional reports that you are seeking to obtain, please email the Office and the NJDEP can further assist.

Let’s break down DEP’s excuses:

1. Labor intensive – aside from the legal absurdity of such a claim, that is a factually false claim, because the DEP staff levels that historically were able to prepare Annual CWEA Reports remain. And those DEP staff are doing other discretionary work as opposed to the legislatively mandated CWEA report work. Management 101.

2. budgetary constraints – another legally absurd and factually false claim. The DEP budget is similar if not larger than the budget DEP found adequate historically to rep-rare these reports. Regardless, DEP staff are doing discretionary work and legislative mandates come first.

3. Attempting to comply? -come on! That’s a lame “dog ate my homework” excuse and it is transparently false.

The Christie DEP stopped preparing these reports and they did so for policy reasons (i.e. “regulatory relief”) in downsizing and dismantling DEP’s regulatory role and protecting polluters, not the public interest.

4. website information – dataminer – making limited information available on a website  – which does not come close to providing access to the legislatively mandated information provided in prior CWEA Reports – does not comply with law and it shifts the burden from DEP to the individual citizen.

It is not the citizen’s responsibility to do this work – it is DEP’s legislatively mandated job. Most citizens lack the expertise required to even ask the technically correct questions.

Regardless, an individual data miner query can not provide the information provided in prior CWEA Reports.

It is astonishing that the environmental group (currently renamed from NJ PIRG to Environment NJ) is not fighting for the Reports that they were able to mandate via their work in getting the CWEA passed.

Shame on Doug O’Malley, who spends his time kissing Gov. Murphy’s ass instead of holding DEP accountable and fighting for clean water.

It is also astonishing that the Legislature and media give DEP a pass on this as well.

II) Environmental Management Accountability Plan 

The EMAP law, also known as the “Doria” “Permit Activity Report” law – named after sponsor and former Assembly Speaker Joe Doria – was enacted during the Florio administration in the early 1990’s largely in response to the business community’s attacks on DEP permit processing delays.

The law requires detailed reporting of all permit, enforcement (e.g. scroll down to see annual air enforcement reports, which haven’t been issued in a decade), and related activities at DEP. (see DEP website)

Here’s an example, from the 2002 DEP Doria Report:

Here is DEP’s webpage (scroll down).

The DEP’s excuse for not submitting these Reports is even worse than the CWEA excuse:

In December of 2008, the NJDEP suspended the production of the “Doria Reports”.The NJDEP has since provided on its website associated  with the Doria Reports (2002 – 2007) the following notice: “In light of significant advancements in the Departments ability to track and report permit activity on-line it has been determined that there is no benefit to continuing to publish the Permit Activity Report.” However, the Department has developed web-based reports to provide permit review information. This information may be accessed via the Department’s Data Miner application.  The Department provides a “Permit Dashboard” under “Searched Published Documents”; as well as other Dashboards in DataMiner that provide permit activity information.

Let’s drill down again:

1. No benefit? To whom? Obviously, the DEP staffers don’t want to be held accountable and corporate polluters don’t want the public to know that DEP rubber stamps approval of over 95% of permit applications.

And the public is denied information on the volume and type of Statewide permits, trends in types of permits, et al (e.g. it is important to know how many wetlands or coastal permits have been approved by DEP, the rate of approval, the timeframes for review, and the locations of where these permits are being issued).

Wouldn’t it be good to know how many air pollution (greenhouse gas emissions) and warehouse permits were approved and/or pending before DEP?

2. . “It has been determined”  – Note the passive voice. Determined by whom? On what basis?

DEP has no legal authority to “suspend” a legislative mandate.

If DEP feels that the Doria Reports are no longer providing any “benefit”, then they should go to the legislature and make that argument and request that the law be repealed.

A website “Notice” doesn’t cut it. It is incredible that DEP even attempts to make this kind of claim.

Finally, individual queries can not substitute for comprehensive Statewide data and provide trends. The DataMiner does not provide the equivalent information provided in prior Doria Reports and the reliance on Dataminer shifts the burden from DEP staff to the citizen.

It is astonishing that the business community, who were responsible for passage of the Doria law to hold DEP accountable, have given DEP a pass on this.

I will write Senate Environment Committee Chairman Bob Smith to demand legislative oversight of this flagrant lawless abuse.