Murphy DEP McCabe Pledges To Re-Propose Christie Highlands Rollback Septic Rule

May 17th, 2018 No comments

McCabe says she’s “unfamiliar” with DEP C1 Exceptional Waters Stream Buffer Program

Agrees that 1,300 new housing units in the Highlands is “minuscule”

A Question of Balance?

Call me (call me) on the line
Call me, call me any, anytime.  ~~~ Blondie

Like Obama’s “all of the above” energy policy … Murphy will say he’s pursuing a “balanced approach”. ~~~ Bill Wolfe (1/31/18)

Balance is my mantra. ~~~ Murphy DEP Commissioner Catherine McCabe, confirmation hearing (5/14/18)

[Update: 5/23/18 – the press finally got it right – the narrative is framed:

Acting DEP Commissioner Catherine McCabe faced her confirmation hearing last Monday. Overall, we viewed it as a huge disappointment and outlined some of our concerns. 

We are not alone. The Record also ran a story highly critical of McCabe’s response to the Dupont Pompton Lakes site, see: Phil Murphy says DuPont pollution in Pompton Lakes still under review

[Update: the cave on Murphy’s commitment to end the bear hunt is another example, see:  Acting DEP chief: Bear hunt is on for this fall. And so is this: Just $50M From NJ’s Exxon Settlement Will Go to the Dept. of Environmental Protection, which generated a “Thumbs down” by Record editorial~~~ end update]

In what I plan to write more about, today’s post drills down on 2 important issues McCabe faced questions on and spoke to: 1) how her DEP would address the Christie DEP Highlands rule and 2) the Category One (C1) exceptional waters stream buffer program.

I found it stunning that McCabe challenged Environment Committee Chairman Bob Smith (D) on his criticism of the Christie DEP Highlands septic density rule – essentially defending the Christie DEP – while making concessions to fact free attacks by conservative Republican Senator Cardinale (R), who claimed that a specific DEP staffer classified a “mud puddle” as a navigable water. He said this same DEP staffer found wood turtle on a development site, ultimately forcing the proposed development to relocate to NY State.

But why was McCabe unfamiliar with and not willing to defend DEP’s C1 buffer program, while at the same time familiar with and challenging critics of Christie’s Highland septic density rollback?

I)   “Mud puddle” – “Wood turtle”:  McCabe undermines her own staff – invites improper political intervention in DEP regulatory decisions

Senator Cardinale’s claims were egregious fact free ideological attacks that demanded pushback – but McCabe rolled over.

And in the course of rolling over, she echoed Christie DEP policy and practice about expediting permits and streamlining reviews through the Office of Permit Coordination (an Office established by the Whitman “Open For Business” Administration).

Still, Cardinale pressed on. After presenting his “mud puddle as a navigable waterway” case he asked:

If you have employees in your department making those types of decisions, and it came to your attention, what would you do?

McCabe did not defend the DEP, the wetlands rules, the integrity of the regulatory process, or her own staff. Instead, she replied:

I would go out and look at the site and talk to not only our staff members but talk to the people who are seeking the permit to find out what the situation really is.

Get that?

The developer’s perspective is “what the situation really is”. 

McCabe also said she would conduct a site visit. That is a completely inappropriate role for the Commissioner, as we’ve written about McCabe’s wetlands enforcement tour with Senator Sweeney. Additionally, the DEP land use programs issues thousands of permits every year – she could not possibly conduct site visits at the hundreds of sites that generate disputes between developers and DEP staff.

Still not satisfied, Cardinale continued his assault.

He then outlined a case, with the same company, 5 years later, where the same DEP staffer documented wood turtle on site and as a result the company left NJ for NY.  Cardinale droned on and asked:

Do you believe there shouldn’t be some way in the Department to circumvent the lengthy periods of time it takes to resolve issues such as that so that we do not have an un-neccessary movement of people out of the state. And this is not just residents, but the jobs, into NY state.

Instead of engaging that debate and defending her staff, McCabe again folded. Here’s what she said:

If  you hear of a situation like that developing again, where there is a question of a business is leaving NJ, because it is having a problem with out permitting process, I encourage you to bring it to my attention so I can make sure it is resolved as quickly as possible.

Is McCabe a Blondie fan? (call me!)

So McCabe is no only going to conduct field visits, she is going to be answering the phone and conducting hundreds of quasi-judicial informal hearings on contested permits, based on political intervention and what is legally called “ex parte communications”. (see the Blondie song above)

I wrote about why that was a totally inappropriate approach, in response to McCabe’s wetlands enforcement tour with Senate President Sweeney.

Cardinale, his pound of flesh in hand, finally relented: “I thank you very much for that”.

McCabe was just awful, showing no spine whatsoever. Cardinale is a notorious hack. McCabe should pushed back, not groveled. I have locked horns with him, after he called Bergen County C1 streams “drainage ditches”, see:

II)   McCabe Says She Is Unfamiliar with DEP’s Category One Exceptional Quality Waters Program(C1)

Cardinale then moved from mud puddles and wood turtles, to an attack on the DEP’s Category One (C1) stream buffer program.

After he summarized his understanding of the C1 buffer program, he complained that he saw numerous development projects that were building within 300 feet of a stream. So Cardinale asked:

Can you clarify for me what this 300 hundred feet really means?

McCabe responded:

I am not yet familiar with NJ’s stream buffer rule... I don’t know what particular circumstances it would apply to and what could explain  the buildings that you’re seeing, but if there is a particular situation you would like me to look into, I would put that on the top of my pile and learn it quickly.

More groveling.

The C1 buffer program was a cornerstone of Democratic Governor McGreevey’s environmental legacy, second only to the Highlands Act, which was based on the same legal anti-degradation policy under the Clean Water Act.

It is one of DEP’s most powerful regulatory tools to protect water quality and restrict development, It is one of the strongest stream buffer programs in the Country.

It was a target of the Christie DEP for rollback and the subject of extreme controversy, including a legislative veto of Christie DEP rules that weakened the C1 program (a final veto was derailed by a Sweeney dealCould dodging Sweeney be why McCabe claims she is unfamiliar?)

For an Acting DEP Commissioner, more than 4 months into her tenure, to still be “unfamiliar” with this program is outrageous and totally unacceptable.

Actually, I simply don’t believe McCabe is not familiar with the C1 program. The C1 program was mentioned in Transition, it is critical to controversial pipeline decisions, and I sent her information on the C1 buffer program months ago. Maybe that’s why she’s since blocked my email.

It does not pass the straight face test that McCabe is unfamiliar with all this. If she really is, she is grossly incompetent and should not be confirmed by the Senate.

McCabe not only failed to defend the DEP C1 program and push back against criticism from a conservative Republican’s attacks, she then defended the Christie DEP’s Highlands septic density rule and pushed back against Chairman Smith.

III)  Highlands

Senator Smith, Chairman of the Environment Committee, led the charge to oppose the Christie DEP rollback of the Highlands Septic Density Standard, which resulted in a rare legislative veto of that rollback as “inconsistent with legislative intent” to prevent the degradation of high quality Highlands waters.

Smith asked McCabe about the status of the Christie Septic Density rule.

Remarkably, McCabe defended the Christie DEP rule, challenged Smith’s premises, downplayed the impact of the rollback, and pledged to re-propose another septic density rule!

Senator Smith:

In the old administration, there was an effort to change the Highlands septic density rules. The legislature .. invalidated those rules. ..Is there any plan to do anything?

McCabe replied:

I don’t think we need to do anything…. We’re back at the drawing board. I’ve taken a look at the science myself.

Frankly, I think what happened was failure to communicate between our scientists and the legislature.

Whaaaaaat? Failure to communicate? Are you kidding me? It was a fucking rollback, you idiot. Was she watching the movie classic “Cool Hand Luke” the night before? Failure to communicate indeed!

McCabe went even further:

I have asked to have the model re-reun so that we can use only data that pre-dates the time [passage] of the Act. What happened apparently was that they changed the result where the standard would be based on adding in a lot of new data. Now that’s good science… 

No, it is NOT good science. It’s statistical manipulation. It was BAD science because the data did not represent actual background groundwater water quality.

McCabe continued:

I think that what we’ll do going forward and get the results from the rerun is that we’ll show you how that works out and we’re happy to work with the legislature on a path forward. But I have learned from our scientists is that people had a a misimpression of just how much of a difference that change made. It did not change all that much on the ground.

Smith interjected:

Minuscule

McCabe agreed

Yeah.

Smith

1,300 more homes

 Do you think 1,300 more homes disturbing an unknown acreage of land in the Highlands Preservation Area is “minuscule”?

Shame on McCabe.

As we noted:

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.

Beware folks – a wolf in sheep’s clothing is among us.

(next – Senator Sarlo seeks “balance” and Sen. Dougherty exposes risks of unregulated prescription drugs in water supply.)

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Murphy DEP Admits “Continuity With Christie DEP” On Dupont Toxic Fiasco

May 17th, 2018 No comments

Acting Commissioner McCabe’s Testimony on Dupont Angers Pompton Lakes Residents

McCabe gave false testimony on a key legal issue

“misleading the Senate is disqualifying”

Although the Murphy DEP has declared “a new era in environmental protection“, I have been writing – citing several examples – about how many NJ DEP regulatory policies under Gov. Murphy’s Acting DEP Commissioner McCabe are virtually the same as the Christie DEP, amounting to policy continuity, not contrast, and certainly no “new era”.

Today, the DEP press Office admitted that.

In a killer story in today’s Record – Phil Murphy says DuPont pollution in Pompton Lakes still under review – the DEP press office said this:

When asked by The Record if McCabe could clarify her testimony, DEP spokesman Larry Hajna said McCabe’s remarks “stand for themselves” and mirror the longstanding policy that was undertaken during the Christie administration.

Wow. I wonder who will be shown the door: Hajna or McCabe.

But an even worse abuse was not mentioned in the Record’s otherwise superb story.

The fact of the matter is that McCabe misled the Senate Judiciary Committee in the first sentence of her reply to a question by Senator Smith requesting a status report on Dupont Pompton Lakes site. McCabe swore an oath to provide “complete” testimony. She simply failed to do so.

Echoing US Senator John McCain on CIA torture: misleading the Senate is disqualifying.

McCabe, an experienced environmental lawyer, mis-stated the legal basis of her own DEP’s oversight of the Dupont Pompton Lakes site. McCabe said this:

McCabe: Pompton Lakes is being handled as a Resource Conservation and Recovery Act corrective action cleanup. EPA and DEP have been working on it for years. It’s the same process, really, with very minor differences, as the Superfund process, where we study it in depth and come up with the best solution to protect public health first and then to do a long-term cleanup.

McCabe’s false testimony on DEP’s legal powers to oversee Dupont site is shocking for an experienced lawyer.

It is true that the Dupont Pompton Lakes site is a federal EPA RCRA Corrective Action site. The RCRA Corrective Action program was established by Congress in RCRA amendments passed in 1984, known as “HSWA”.

However, NJ DEP oversight of the Dupont Pompton Lakes site is NOT conducted pursuant to the federal RCRA Corrective Action program. NJ has not sought and the US EPA has not delegated RCRA Corrective Action program to the State of NJ.

The NJ DEP oversight of the Dupont Pompton lakes site is pursuant to NJ State cleanup law and a 1988 Administrative Consent Order between NJ DEP and Dupont.

McCabe surely must know this. If she doesn’t, she is not competent. (I discuss the federal RCRA versus NJ State law issues in this post):

The Dupont site is jointly under NJ DEP and US EPA jurisdiction pursuant to federal law.

EPA oversees the Dupont cleanup under the Resource Conservation and Recovery Act (RCRA) as amended in 1984  “Hazardous and Solid Waste Amendments” (HSWA) “Corrective Action” program.

The RCRA/HSWA created a complex regulatory framework and cleanup program whose implementation can be delegated to States by EPA. However, NJ never sought EPA delegation of the Corrective Action program, instead relying on State law and the 1988 ACO.

I previously managed the NJ DEP HSWA Corrective Action program, so had front row seats to all this when it was going down.

I firmly believe that she intentionally misled the Senate Committee by creating the false impression that federal law governs the Dupont cleanup.

I believe that McCabe did that to evade responding to local residents, who have written McCabe to demand, among other things, that the NJ DEP revoke the 1988 ACO and assume control of the cleanup under NJ’s cleanup law known as the Spill Compensation and Control Act (Spill Act).

So, in addition to angering Pompton Lakes residents and confirming continuity with the Christie DEP policies, McCabe is guilty of misleading the Senate in her confirmation hearing testimony.

As US Senator McCain said, that should be “disqualifying”.

McCabe also made other misleading statements in her response to Senator Smith on Dupont.

McCabe said this:

It’s [RCRA Corrective Action] the same process, really, with very minor differences, as the Superfund process, where we study it in depth and come up with the best solution to protect public health first and then to do a long-term cleanup.

McCabe knows that is not legally or practically true.

The polluters have far more control over cleanup decisions under RCRA. The EPA has far less power under RCRA. The public has far less involvement under RCRA.

McCabe’s statements comparing RCRA to Superfund also contradict her previous boss, EPA Region 2 Administrator Judith Enck and a former DEP site manager. The Record reported:

A federal regulator told The Record she pushed to have the DuPont site added to the Superfund list so it could receive more federal money and contractor support, enjoy potentially quicker approvals for cleanup measures, and take into account public input. But state and local political leaders, including Bob Martin, the state’s top environmental official under then-Gov. Chris Christie, blocked those efforts. 

“It always seemed to me that the company was trying to slow-walk the problem,” Judith Enck, former regional administrator of the federal Environmental Protection Agency during the Obama administration, said in a recent interview. “They worked hard to pay as little money as possible and stretch it out over a long period of time, and sadly I think they are succeeding at that.”

“I find it increasingly hard to believe that it has taken this long to do the work. If you are truly trying to protect human health” said FRANK FARANCA, A FORMER DEP OFFICIAL

And when was the last time you saw your local Congressman tour and RCRA site, like they do at Superfund sites? When was the last time the media wrote stories about RCRA sites like they do at Superfund sites?

McCabe knows all this, plus all about EPA legal powers under Superfund are stronger than under RCRA. She didn’t provide “complete” testimony and misled the Senate by omission and commission.

McCabe said this:

One of the early actions that they took was to move to put soil vapor extraction systems in to protect the homes that are over the plume because it is a plume of dangerous chemicals that’s coming out of the old plant there.

The Dupont cleanup has been under DEP jurisdiction since even before 1988. Prior to the 1988 ACO, DEP issued NJPDES discharge to groundwater permits to Dupont’s hazards waste impoundments (e.g. the shooting pond). DEP had jurisdiction over the Dupont site since the late 1970’s under NJ’s Solid Waste Management Act as well.

Dupont, NJ DEP, and EPA were aware of the vapor intrusion problem since at least 2000. But the vapor intrusion problem was not even disclosed to the public by Dupont, DEP and EPA until early 2008  and the vapor extraction systems, described by McCabe as an “early action”, were not installed until after that (2008 – 2010).

That’a 10 – 30 year delay – hardly the “early action” that McCabe describes.

If the Governor and McCabe are listening, as I wrote and the residents of Pompton Lakes have written McCabe to request, here is a path forward:

1. Issue an Executive Order directing DEP to act as follows, within 30 days:

2. NJ DEP must assume direct oversight of all facets of the cleanup of the Dupont PL site under NJ cleanup laws;

3. NJ DEP Commissioner McCabe must revoke the 1988 ACO – here’s the basis to do that, from DEP boilerplate ACO document: (DEP has other enforcement authority as well)

IX. Reservation of Rights

35. The Department reserves the right to unilaterally terminate this Administrative Consent Order in the event that the Department determines that [Person] has violated the terms of this Administrative Consent Order.Before the Department unilaterally terminates this Administrative Consent Order, the Department shall notify [Person] in writing of the obligation(s) which it has not performed, and [Person] shall have thirty (30) calendar days after receipt of such notice to perform such obligation(s).

In place of the ACO, DEP must issue a Spill Act Directive to Dupont, which lays out enforceable technical requirements, deadlines, compensation for DEP oversight costs, and enforcement penalties.

4. Using Dupont’s money, DEP must hire contractors to conduct the remaining cleanup at the site.

5. DEP must reopen the partial Natural Resource Damage settlement with Dupont negotiated by former DEP Commissioner Brad Campbell. That sweetheart deal was corrupt, provided no benefits to Pompton Lakes, and actually allowed Dupont to donate contaminated land (see Bergen Record story: Dupont deal gave state more tainted soil

Bill Wolfe of the Public Employees for Environmental Responsibility’s New Jersey chapter agreed. “DuPont got a sweetheart deal and DEP didn’t do their homework,” Wolfe said. “The deal must be renegotiated and DuPont forced to pay fair compensation, especially to Pompton Lakes residents who have suffered for decades.”

DEP can use the soon to be completed US FWS’s NR damage assessment as part of the basis for additional NRD compensation $.

6. DEP must threaten – and, if Chemours/Dupont  is intransigent – collect treble damages authorized by the NJ Spill Act.

What will Murphy do?

Now that he’s personally insinuated himself in the controversy and dropped the L bomb, the whole state is watching.

 

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Murphy Acting DEP Commissioner McCabe Senate Confirmation Hearing A Deep Disappointment

May 16th, 2018 No comments

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.

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Murphy DEP Halts Proposed Logging Of Public Forests – Policy Review Pending

May 11th, 2018 No comments

DEP Must Update Current Policy & Impose Regulatory Restrictions On Logging Public Lands

We are not fooled by slogans like “stewardship” – we demand science and regulations

Climate change must be considered in management of forest resources

sparta26

I’ve been harsh in criticizing various mis-steps by Gov. Murphy’s (still) Acting DEP Commissioner Catherine McCabe, so today we balance that with some good news and praise action she’s taken.

McCabe recently announced a “pause” on the controversial proposed logging in the Sparta Mountain Wildlife Management Area, located in an environmentally sensitive water supply watershed, drained by exceptional quality C1 streams in the Highlands Preservation Area.

The Sparta Independent reported:

The state Department of Environmental Protection announced last week that the Sparta Mountain forest management plan has been halted pending a review from the new commissioner.

Forestry activities at two different sites on the Sparta Mountain Wildlife Management Area were set to begin in February and end in April, but new Acting Commissioner Catherine McCabe wants to review the project before it proceeds any further.

“We’re going through a change of administrations,” said NJDEP Spokesperson Larry Hajna. “We have a new acting commissioner and so she is getting up to speed on various issues across the state and this is one that she wants to review. So we’ve decided just to hit the pause button and allow her to review the plan and then we’ll take it from there.”

Bravo.

McCabe’s pause will last until at least November, so there is plenty of time for DEP to conduct an in depth science based review of the policies and regulations that apply to logging of public lands.

The flaws and loopholes revealed by the Sparta Mountain WMA controversy are not unique but systemic and statewide, and therefore require a comprehensive Statewide DEP policy review, followed by reforms to laws and regulations.

We have a few suggestions to guide that policy review:

1. DEP should hold a series of regional workshops and public hearings to solicit public comments on forest management policies. These could be conducted jointly with regional planning agencies in the Highlands and Pinelands.

2. Some policy reforms will require legislative amendments, so the scope of the DEP review should include legislation (for flaws inthe statutory and regulatory framework, see: Environmental Damage Of DEP Sparta Mountain Logging Plan Largely Unregulated

3. The DEP Guidance document that applies to logging public lands is 22 years old, and is outdated scientifically and legally (see” Wetlands Best Management Practices Manual adopted by the Whitman DEP way back in 1995.)

It needs to be updated to reflect current science, particularly climate change mitigation and adaptation issues.

It also needs to be updated to reflect the DEP’s C1 stream buffer protection program and passage of the Highlands Act, whose primary purpose was to preserve the remaining large tracts of intact forests and canopy cover.

4. Local governments and communities must be involved in development of nearby forest management plans. Citizens who have paid to preserve public lands must have a voice in their management.

Early and meaningful involvement includes informal consultations and formal public hearings. Current laws that pre-empt local reviews must be rescinded.

5. DEP’s Wetlands Best Management Practices Manual and various regulations – including the Highlands Preservation Area and Category 1 stream buffer and water quality rules – either don’t apply to forestry, have loopholes, or are technically inadequate and do not protect critical natural resources and exceptional water quality.

DEP must revise current regulations so that they apply to and protect natural resources from logging. (see our framework post for some specific recommendations).

6. Any proposal to log public lands must include requirements to conduct baseline existing water quality, water quality anti degradation reviews,  and natural resource inventories.

Reviews must also include a carbon budget analysis, to determine impacts on carbon sequestration. This would include significant offsets and mitigation of any loss  carbon storage potential.

7. The Corzine DEP produced a report:  Valuing New Jersey’s Natural Capital: An Assessment of the Economic Value of the State’s Natural Resources. That report found that forests have far more economic value as forest than harvested as commercial logging. DEP needs to dust off that report and apply it to future management policies.

8. DEP’s report required by the Global Warning Response Act has data and recommendations on carbon sequestration and forest management.

That report needs to be updated and considered during the policy review, especially in light of re-entry into RGGI, which provides significant funding for carbon sequestration projects.

9. In terms of site specific suggestions for the NJ Audubon proposed Sparta Mountain WMA logging scheme, DEP should:

  • inventory blowdown and forest gaps created by Sandy and more recent storms. The primary rationale NJA presents for logging intact forests is to provide needed gaps in intact forest.” There is plenty of blowdown out there that provides precisely these “needed gaps”.
  • baseline existing water quality and predictive models to structure a science based antidegradation review required for C1 waters to demonstrate compliance with all water quality standards. NJ Audubon claims that their plan “protects water resources“, but they provide no data or baseline water quality analysis (physical, chemical and biological) or compliance field model to determine or predict any impacts.
  • carbon budget analysis. Climate crisis requires that we maximize carbon sequestration and have a policy of no loss of carbon storage.(see #8 above).

10. Conduct an aluminum toxicity analysis to avoid problems the USGS documented in the Catskills. Shockingly, USGS found that forest clear cuts caused 100% mortality of trout:

Clearcutting caused a large release of nitrate (NO 3-) from watershed soils and a concurrent release of inorganic monomeric aluminum (Alim), which is toxic to some aquatic biota. The increased soil NO 3- concentrations measured after the harvest could be completely accounted for by the decrease in nitrogen (N) uptake by watershed trees, rather than an increase in N mineralization and nitrification. The large increase in stream water NO3 – and Alim concentrations caused 100-percent mortality of caged brook trout (Salvelinus fontinalis) during the first year after the clearcut and adversely affected macroinvertebrate communities for 2 years after the harvest.

We look forward to DEP conducting this kind of rigorous science based review of their current policies, guidance and regulations that apply – or provide loopholes – to logging of public lands.

We are not fooled by slogans, like “stewardship” – we demand science and regulations.

[End Note: I just revised this into a letter to DEP Commissioner McCabe. She has blocked my email (I successfully sent an email previously, so I now its been blocked.

So now I will file it formally as a petition for rule-making and force them to respond.

We will also file a petition for rule-making based on this DEP Report, recommending that several streams be upgraded to Category One: An Evaluation of NJDEP’s Category One Antidegradation Designation Process.

Rule-making petitions are one of the best ways to hold DEP accountable to science and law. They area LOT better than a press release.

Here is an example that can serve as a template to help those individuals or environmental groups that would like to file a petition for rule-making.

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Did NJ Audubon Dupe NJ’s First Lady Tammy Murphy?

May 10th, 2018 No comments

Did Tammy Know She was Palling Around With Trump Partner & Christie Collaborator?

Website Scrubbed Of Controversial Trump Partnership & Corporate Stewardship Council

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[5/11/18 – Updates in text]

Today, NJ First Lady Tammy Murphy did a PR event in Cape May sponsored by NJ Audubon and corporate pharmaceutical giant Eli Lilly & Co. (see the announcement “Turning the Tide for the Horseshoe Crab“)

The Murphy’s are newcomers to the NJ political scene, so I was wondering if Tammy knew of the the several divisive controversies that NJ Audubon was involved in, including:

We recently tried to warn the incoming Murphy people about some of that NJ Audubon collaboration, and specifically highlight the parallels between Trump and Christie policies and slogans.

Previously, we also criticized NJ Audubon Society, most recently for their role as:

a self-proclaimed “conservation” organization [that] has: 1) formed a “partnership” with Donald Trump; 2) taken money from a Wall Street billionaire to log forests to enhance opportunities for wealthy private hunters; and 3) formed a “Stewardship Council”with major corporate polluters, developers, and pipeline builders; then something apparently benign like a “buy local” sustainable forestry birdhouse program may seem like chump change, and just a short slide down the slippery slope of the Greasy Pole to Gomorrah (a process that Chris Hedges calls “our descent into corporate tyranny.”)

I am referring to NJ’s Audubon’s latest scam, run in cooperation with NJ State Departments of Environmental Protection (“Forest Stewardship”) and Agriculture (“Jersey Grown Wood“).

[Update: I forgot to mention the fact that Dupont funds NJ Audubon for work on Delaware Bay – “Clear Into The Future” –  another Orwellian corrupt corporate green scam.]

I wonder who does the background political research in the Governor’s Office for the First Lady’s events? Were they aware of these minefields?

Maybe the political background work was done by the same person who recommended that Gov. Murphy’s DEP Commissioner join Trump EPA Scott Pruitt’s self serving press release designed to divert attention from his various scandals.

Dupe me once, shame on me – Dupe me twice….? The Murphy political folks are looking either naive or incompetent.

But maybe the political background researcher just got duped by NJ Audubon’s recent scrubbing of their website of any of this stuff.

Take a look at their new website and Stewardship page and see if you can find the Trump partnership, Corporate Stewardship  Council, or various work with the Christie DEP, like the drafting Commissioner Martin’s talking points and the Sparta Mountain WMA logging plan.

This raises questions, like:

[Update – Friends just sent me this NJA spin on the Sparta Mountain logging plan – which I missed on their new website – so they are doubling down. I’ll post on this in more detail soon.]

Inquiring minds want to know!

If NJ Audubon didn’t give the Governor’s Office a heads up on any of these minefields, then they duped the First Lady and should pay a price for that.

 

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