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Christie DEP Budget Flouts EPA Oversight – May Jeopardize Federal Funding

If Obama EPA can’t stop this, they should just turn out the lights up in Region 2 offices & go home

Roots of disasters in lax EPA oversight model created by Clinton Triangulation

What do the explosion of a West, Texas fertilizer plant that killed 15 people, a West Virginia chemical spill that shut down the City of Charleston’s water supply for 6 weeks, the massive California methane blowout that forced the evacuation of thousands of people from their homes, the Dupont Pompton Lakes site that poisoned 450 homes with toxic vapor intrusion, and the environmental health crises in Flint Michigan and Newark NJ all have in common?

Failed EPA regulatory oversight of State enforcement of federal environmental laws. 

That conclusion was made crystal clear in the West, Texas case, where the US Chemical Safety Board found that the accident was caused by:

Key Findings

The CSB’s analysis includes findings on the technical causes of the fire and explosion; regulatory changes that could have resulted in safety enhancements to the facility; the failure of the insurer to conduct safety inspections or provide an adequate level of coverage; shortcomings in emergency response, including pre-incident planning or response training of the volunteer fire fighters; and deficiencies in land use planning that permitted the City of West to encroach upon the WFC over the years.

The smoking gun is buried on page 184 of that report in footnote 507:

Program Level 2 requires implementation of a streamlined accident prevention program.507 [ARP]…

Clearly, this [ARP] hazard review did not provide the type of protection needed to address the fire and explosion that occurred on the day of the WFC incident. Because [Fertilizer Grade Ammonium Nitrate] FGAN is not a regulated substance, the WFC was not required to conduct such a hazard review for its storage of FGAN. …

CSB reviewed the original listing criteria to determine their application to FGAN and found support for inclusion of FGAN on the Risk Management Program list.

The West, Texas plant was classified under EPA rules as a “Program Level 2″ facility that was “streamlined” by EPA. “Streamline” is a code word for scale back regulation. Got that? Strike 1.

EPA has known of the risks of FGAN and hundreds of other “unregulated chemicals” for decades, yet done nothing to close those loopholes. Strike 2.

Emergency planning, incident response, and ARP were effectively delegated to State of Texas. EPA considered unsafe encroaching land use a State – not federal – issue. Strike three – 1-2-3 BINGO!

So bear with me for a moment as I outline the history and then link it to the current Christie DEP budget, the focus of this post!

The Clinton/Gore sellout

EPA takes a hands off approach to State oversight under a program known as the “National Environmental Performance Partnership” (NEPPS). Walk softly, carry no stick:

EPA and states share responsibility for protecting human health and the environment. The unique relationship between EPA and states is the cornerstone of the nation’s environmental protection system. Working together, EPA and states have made enormous progress protecting our air, water, and land resources.

The current EPA NEPPS program is a radical departure from the strong federal role established in virtually every major environmental law passed by Congress in the 1970’s.

The roots of EPA’s failure to oversee State enforcement of federally funded and/or delegated environmental programs may be found in the Clinton Administration’s “Reinventing Government” initiative.

Some corporate Democrats trace the origins of that initiative to “a 1992 campaign promise by then candidate Bill Clinton to “reinvent government,” a term taken from the best-selling book “Reinventing Government” by David Osborne and Ted Gaebler”.

But the real impetus is far more cynical and craven.

In another example of Clinton’s Neoliberal Triangulation, Clinton used Al Gore to dupe environmentalists and lead an effort to appease radical Republican state’s rights ideologues who came to power in Newt Gingrich’s 104th Congress under the banner of the “Contract On America” (hit link and note the origins in the “Reagan Revolution”).

The US government’s “official history” makes the Clinton motives clear:

Recognizing the election of a new Congress in fall 1994 as an opportunity to further governmental reform, President Clinton asked Vice President Gore to launch a “second phase” of reinvention. The emphasis of this review was more on “what” government should be doing, but also included additional reforms to “how” the government works.

NPR undertook a major reform of the regulatory system. Agencies identified $28 billion a year in reduced regulatory burdens and proposed eliminating 16,000 pages of regulations. They also proposed to change the way they enforced regulations, to increase the use of partnership arrangements and reduce historical emphases on identifying procedural violations.

So Clinton saw right wing nut Newt Gingrich and his Contract on America as “an opportunity” to further regulatory reform (just like he did in deregulating Wall Street, ramming trade agreements through Congress that killed US jobs, and ending welfare.)

That Clinton “regulatory reform” not only essentially gutted federal EPA oversight of States, it weakened federal regulations across the board and put a damper on efforts to close loopholes, respond to new science, and develop new regulations.

That Clinton capitulation also fueled the parallel rise of the radical legal attack and formation of The Federalist Society, who under the banner of federalism produced the majority power of the right wing pro-corporate views of Supreme Court Justice Scalia.

So, we can thank Bill Clinton for another disastrous policy initiative that is now producing visible results.

The Christie DEP Budget flouts a weak EPA NEPPS program

Deep in the weeds of Governor Christie’s proposed FY’16-17 DEP budget, on page D-138 we find the following is budget language:

Notwithstanding the provisions of any law or regulation to the contrary, of the federal fund amounts hereinabove appropriated for the programs included in the Performance Partnership Grant Agreement with the United States Environmental Protection Agency, the Department of Environmental Protection is authorized to reallocate the appropriations, in accordance with the grant agreement and subject to the approval of the Director of the Division of Budget and Accounting.

What this effectively means is that, in addition to bypassing and rendering meaningless the Legislature’s budget powers, the Christie DEP is reserving power, solely unto itself, to use federal grant money as it sees fit, regardless of the NEPPS contract, and the EPA can go and pound sand. 

Obviously, this violates federal law, the federal EPA NEPPS contract with NJ DEP, and various federal delegation agreements.

If the Obama EPA can’t stand up to that – and defend a toothless NEPPS EPA oversight model – then they should just turn out the lights up in Region 2 offices and go home.

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