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Where's Bob Martin? Hot seat becomes empty seat at Senate Environment Commmittee today.

Martin Ducks Senate Committee Testimony on Strategic Plan for DEP

[ Update: This should be the news headline: Martin concedes legal defeat – agrees with Exelon and says NJ Spill Act Directive is pre-empted and purely voluntary: According to DEP’s own press release:

Nuclear power plants are regulated by the federal government’s Nuclear Regulatory Commission (NRC), thus the state’s ability to compel mandatory cleanup is limited. Following notification of the 2009 Oyster Creek contamination, NRC performed an investigation but did not compel a clean up.

Apparently Martin doesn’t understand how foolish he looks for having issued that Directive; having failed to challenge Exelon’s repudiation of it; and for now conceding the point in a press release. Or how this federal pre-emption exposes the absurdity of the Chrisite Executive Order #2 policy to dismantle NJ state protections in favor of federal minimum standards. If Martin needs a model of how he should respond, check out how NJ responded to federal pre-emption of regulation of garbage transfer station railroad operations under Interstate Commerce laws – see especially DEP testimony at page 22 and Congressman Pallone’s remarks at page 3. Martin could also look into “Chemical Security: The Implementation of the Chemical Facility Anti-Terrorism Standards and the Road Ahead.” (December 12 hearing transcript) and this post regarding Senator Lautenberg’s anti-preemption amendments.] [Update – here is the money quote from DEP’s 12/12/07 Senate testimony on federal preemption:

New Jersey has expressed serious concerns on a number of occasions about any language in federal regulations that has the potential to preempt existing state chemical security initiatives or limit future state actions to address unique vulnerabilities.  Section 2107. Federal Preemption, clearly allows States to retain the authority to adopt and enforce any regulation, requirement, or standard of performance relating to environmental protection, health, or safety.  We urge Congress to be equally clear that States retain the unqualified authority to adopt enhanced security requirements based upon risk and consequence factors within that State.  This could be accomplished by deleting the phrase “unless the State regulation, requirement, or standard of performance would conflict with the purposes of this title” from Section 2107 (a).

We went to Trenton today to hear DEP Commissioner Martin testify about his “Strategic Plan”.  But all we got was an empty chair.

At the conclusion of the May 13 “getting to know each other” Senate Environment Committee hearing, NJ DEP Commissioner Bob Martin was asked by Committee Chairman Bob Smith (D-Middlesex) to appear today (June 3) to present what Martin had described as his “Strategic Vision Plan” for DEP.

We wrote a set up piece on May 12 in hopes of focusing the Senate Committee’s oversight on troubling issues.

But instead of oversight, Martin was allowed to testify about his “Strategic Plan” for DEP. Martin noted that his “transformational agenda” already had been released on April 26, and that his “Strategic Plan”  would be complete and released to the public by the “end of May”. 

Previously, on April 19, Martin had touted how CUTTING OF RED TAPE WILL MAKE DEP MORE CONSUMER FRIENDLY WITHOUT COMPROMISING ENVIRONMENTAL PROTECTION

Accordingly, Martin agreed to Chairman Smith’s request to present his DEP “Strategic Vision” plan to Legislators at the Committee’s June 3 hearing (listen to Martin’s commitment during the May 13 hearing transcript at time 34:30).

Aside from the fact that Martin has failed to honor his pledge (i.e. May has come and gone and there is no Strategic Plan posted on DEP’s website), two major things happened since the May 13 Senate hearing that should serve as a wake up call.

We had hoped that these developments might have clouded Bob Martin’s vision – and perhaps dampened his enthusiasm for “reforms” of what Martin repeatedly has said is “DEP’s broken culture”.

First and foremost, the BP Gulf oil blowout has exploded – literally – into the American public’s consciousness and been extensively covered in the press.

Congressional oversight hearings and critical media coverage have begun to expose the cozy relationships between BP and federal Mineral Management Service (MMS) regulators.

Press accounts have detailed the abject failures of lax federal regulations.

Detailed national NY Times and Washington Post stories have illustrated the consequences that result from corporate lobbyist created loopholes.

Investigative reports have drawn the curtain behind the regulatory smokescreen and explained in depth what happens when environmental reviews are expedited and corners are cut to promote the industry’s economic bottom line.  

Second, despite Martin’s bragging about the Spill Act Directive he issued on May 7 to Exelon regarding cleanup of the Oyster Creek nuclear plant’s radioactive tritium leak which is polluting groundwater,  Exelon’s reply was to tell Martin to pound sand.

In a harsh May 14 letter to DEP, Exelon wrote Martin to say that his NJ State Spill Act directive legally wasn’t worth the paper it was written on. [correction: as a commenter notes, the Exelon letter was written to Deputy Commissioner Kropp, not Martin. That too is a slap in his face, as it raises the question of who is running the agency.]

So, where is the Attorney General when a nuclear polluter asserts a frontal challenge to State power?

Exelon claims that DEP is prempted by the federal Nuclear Regulatory Commission and therefore DEP has no power to Order Exelon to do anything.

That’s some red hot poker in the eye, eh, Bob? How is Governo Christie’s  Executive Order #2 federal consistency policy looking now?

So we had hoped that Bob Martin’s testimony today’s would have shed some light on how the recent events in the BP Gulf and Exelon fiasco’s have affected his vision.

We particularly looked forward to hearing Martin explore the following policy framework he has trumpeted (repeatedly) as his new DEP priorities. Here are 5 core planks in the Christie/Guadagno/Martin policy that we have been writing about for months here – from the DEP Transition Report, to Executive Orders #1-4, to Commissioner Martin’s multiple policy pronouncements. 

All these policies have been repudiated by and must be reconsidered in light of the Gulf oil blowout and Exelon’s response:

1) DEP culture is “broken – DEP needs to treat regulated industrial polluters like “customers“

 The “culture” at the federal MMS was nothing less than friendly to the oil industry. MMS viewed their role as promoting energy production. According to Glenn Greenwald at Salon:

Salazar turned out to be exactly what it was obvious he would be when Obama chose him.  As Mother Jones‘ Kate Sheppard reported this week, Salazar hired Sylvia B. Vaca for the position of  deputy administrator for land and minerals management.  Who is Vaca?  She’s a former BP Executive who is the classic case of the revolving-door sleaze that runs the Federal Government on behalf of the industries it purportedly regulates.  She was an Interior Department official during the Clinton administration, and then — when the GOP took over — she went to BP where she “held several senior management positions with the company,” then went back to the Interior Department under Salazar.  Though she did not work on BP matters, she is, as Sheppard put it, “an excellent example of the revolving door between government and industry that MMS has been accused of facilitating” (h/t Susie Madrak).

At his Press Conference, Obama blamed the Bush administration for what he called the “cozy relationship” between MMS and the oil industry, but was then asked by CBS’ Chip Reid:  “you knew as soon as you came in, and Secretary Salazar did, about this cozy relationship. But you continued to give permits — some of them under questionable circumstances.  Is it fair to blame the Bush administration? Don’t you deserve some of that?”  In reply, Obama acknowledged:  

 Well — well, let — let me just make the point that I made earlier, which is, Salazar came in and started cleaning house, but the culture had not fully changed in MMS. And absolutely, I take responsibility for that. There — there wasn’t sufficient urgency in terms of the pace of how those changes needed to take place.

How has that pro-industry culture worked out? Do you still think DEP needs to be more businesss friendly? Think an acident can’t happen here at a NJ refinery or chemical plant?

 2) DEP must expedite environmental reviews – “time of decision” rules must treat polluters fairly

Regulated industries have long viewed the 1969 National Environmental Policy Act (NEPA) environmental impact statement (EIS) process and environmental regulations as little more than delay – time is money, as they say.

This creates pressure to expedite approvals.

How’s that looking now given the economic and ecological devastation in the Gulf?

The federal MMS has said that the law mandated that they have only 30 days to review a oil drilling plan. This claim goes t the question of when the review clock starts ticking, which is an issue that has received controversial attention in NJ as the “time of decision rule”. 

MMS argued that, give a 30 day review clock, they lacked adequate time to conduct a full EIS environmental and safety  review.

President Obama apparently bought this lie and tried to spin that [false] bureaucratic ass covering story about why MMS exempted BP gulf drilling in his Press Conference last week.  This is the [false] explanation he gave:

 [T]here is a thorough environmental review as to whether a certain portion of the Gulf should be leased or not. . . . .Under current law, the Interior Department has only 30 days to review an exploration plan submitted by an oil company. That leaves no time for the appropriate environmental review. The result is, they’re continually waived. And this is just one example of a law that was tailored by the industry to serve their needs instead of the public’s.

But a 2008 federal appeals court decision already had found that excuse “misleading“. The court categorically rejected that excuse

“MMS argues that the strict timelines in OCSLA indicate that an EIS is not a feasible option at the exploration stage. The agency only has thirty days to approve or disapprove of an exploration plan” and officials “argue that thirty days is not enough time to generate a full EIS.” (emphasis supplied):

 The agency may be correct that it is difficult for an agency to conduct a full EIS in only thirty days, but its argument that OCSLA precludes such a result is unconvincing. There is flexibility built into the regulatory scheme so that the agency can perform its full duties under NEPA. The thirty-day clock begins to run only when an exploration plan is deemed complete. 30 C.F.R. § 250.233(a). If the agency is able to identify gaps before that point, then it can request that information be added before the proposal is finalized. See 30 C.F.R. § 250.231(b). Additionally, at the end of the thirty-day review period, the agency may opt to require modifications to an EP if there are concerns that it does not comport with environmental standards. 30 C.F.R. § 250.233(b). These options give the agency additional time to consider a plan and compile an environmental impact statement, if necessary. To say simply that the agency only has thirty days to complete a full EIS is misleading.

3)  DEP regulations are Red Tape paperwork barriers to economic development –

From the WaPo story:

Agency a ‘rubber stamp’

“The agency’s oversight role has devolved to little more than rubber-stamping British Petroleum’s self-serving drilling plans,” Suckling said.

BP has lobbied the White House Council on Environmental Quality — which provides NEPA guidance for all federal agencies– to provide categorical exemptions more often. In an April 9 letter, BP America’s senior federal affairs director, Margaret D. Laney, wrote to the council that such exemptions should be used in situations where environmental damage is likely to be “minimal or non-existent.” An expansion in these waivers would help “avoid unnecessary paperwork and time delays,” she added.

Gov. Chrisite’s Executive Order #2 seeks more waivers as a “common sense principle”.

4) DEP role is to work with polluters to promote economic development – DEP needs flexibility and more waivers from strict regulatory requirements

As the Washington Post reported:

The Interior Department exempted BP’s calamitous Gulf of Mexico drilling operation from a detailed environmental impact analysis last year, according to government documents, after three reviews of the area concluded that a massive oil spill was unlikely.

The decision by the department’s Minerals Management Service (MMS) to give BP’s lease at Deepwater Horizon a “categorical exclusion” from the National Environmental Policy Act (NEPA) on April 6, 2009 — and BP’s lobbying efforts just 11 days before the explosion to expand those exemptions — show that neither federal regulators nor the company anticipated an accident of the scale of the one unfolding in the gulf.

5) NJ needs to scale back and rely on federal standards to remain economically competitive 

The New York Times exposed major BP fraud and federal corruption: Documents Show Early Worries  About Safety of Rig

One of the final indications of such problems was an April 15 request for a permit to revise [BP’s] plan to deal with a blockage, according to federal documents obtained from Congress by the Center for Biological Diversity, an environmental advocacy group.

In the documents, company officials apologized to federal regulators for not having mentioned the type of casing they were using earlier, adding that they had “inadvertently” failed to include it.  In the permit request, they did not disclose BP’s own internal concerns about the design of the casing.

Less than 10 minutes after the request was submitted, federal regulators approved the permit.

Do you trust the federal MMS (and EPA) to set environmental review requirements and fully protective standards for energy development off the NJ shore?

 How are those policies and Stratregic Plan priorities looking now Bob Martin?

(ps – I am proud to say that this is my 500th post! I appreciate the support, tolerance and activism of any readers out there! And speaking of support, I was off-line for almost a week a result of hard drive failure. It ended up costing me about $800 I didn’t have for a new computer. So, if there are any friendly (and anonymous!) deep pockets out there, you can send assistance to:

 PO Box 112,

Ringoes, NJ  08551