NJ Gov. Murphy Faces A Huge Challenge Reversing Christie Environmental Dismantling And Restoring DEP Integrity and Leadership
Will The Gov. and DEP Commissioner Face Tough Questions Or Get A Pass?
Restoration Requires Executive Orders, Regulations, Policies, Budget, Staff
I want to thank NJ Spotlight and their recent “Have A Question” series for prompting me to write this post, something I’ve been thinking of doing for a long time but been too lazy to begin.
Given the comprehensive scope of the Christie Administration’s environmental rollbacks – now compounded by the Trump threats – there is a tremendous amount of work to do.
Remarkably, outgoing Christie DEP Commissioner Bob Martin – by far the most unqualified and worst DEP Commissioner ever – denied all that in an Orwellian 58 page Report celebrating his “accomplishments”, including this blatant lie in an introductory “Message from the Commissioner”:
“During the past eight years, DEP never relaxed a single environmental standard.”
This BS from the Commissioner who signed the waiver rule, which gives him power not only to relax but to waive many NJ State (non-federally delegated) environmental standards and regulatory requirements; and the Highlands septic density rule that relaxed the 88 acre septic density in the Preservation Area and 25 acres for non-forested lands (a rule recently vetoed by the Legislature); and the Stream Encroachment rules that relaxed Category One (C1) exceptional stream buffer protections, among others. (a rule that barely escaped legislative veto)
This BS from the DEP Commissioner who implemented Gov. Christie’s “regulatory relief” and “federal consistency” rollback policies in Executive Order #2 and shared Gov. Christie’s slogan and policy view that regulations constituted “job killing “Red Tape” (Executive Order #3). A Commissioner who was loyal to a Gov. that said climate change was an “esoteric” issue that no one cared about and ignored the Global Warming Response Act.
A Commissioner who sought to change DEP “culture” and issued a “Transformation Plan” and “Vision Statement” that sought to make “fundamental change” in how DEP functioned, including: a radical new role to promote economic development; a goal and directive to DEP to rely on “cost benefit analysis” (weighted above or equivalent to the findings of science and legislative mandates to protect public health and the environment); and – in a move that harkens back to Chairman Mao – required every single DEP employee to attend “customer service” training (a “business model” where the “customer” is DEP regulated business, industry, and developers, not the public).
Martin harshly criticized DEP scientists and in public testimony to the Legislature, called their work “shoddy”. This attack from a man with no scientific or environmental training or experience.
This transparent BS from a Commissioner that was rebuked by the Asbury Park Press editorial board for “spin” and “restricting public discussion” – and called out by the Bergen Record editorial board for lying about why he killed the Corzine DEP proposed drinking water standard for perchlorate. The Bergen Record’s link is no longer working so here is an excerpt. In April 2010, I caught and called out Commissioner Martin for a lie on killing the perchlorate drinking water standard, a claim validated by a killer 4/25/10 Bergen Record story and an April 30, 2010 followup highly critical editorial titled “Cleaner Water”:
… Martin’s new opinion came about after he was embarrassed publicly. The Public Employees for Environmental Responsibility released e-mails sent to Martin from the EPA that made clear that even if the agency imposed a limit, 6 1/2 years could elapse before the rule was in place, Staff Writer James O’Neill reported. Martin would have been playing Russian roulette with the public’s health.
Perchlorate is linked to thyroid dysfunction. In fetuses and infants (through formula or breast milk), high levels of perchlorate can cause developmental delays and learning disabilities. No parent would ever choose to give perchlorate-laced juice to a baby, and no pregnant woman would ever drink a caffeine-free beverage if she knew it included a rocket-fuel additive.
The previous commissioner had proposed a sensible perchlorate limit of 5 parts per billion, far below a possible federal limit. The state limit would leave it in a good position if later scientists find that even 15 parts per billion is too high.
Martin has not said what the perchlorate limit will be. We know what it should be: 5 parts per billion.
Any “environmental standard” is only as real as the DEP effort to conduct compliance monitoring and enforcement. “Relax” compliance and enforcement and you effectively relax the standard. Martin’s DEP enforcement performance set at a record low, as reported by Todd Bates of the Asbury Park Press:
proposed fines covering seven major DEP programs, including air and water quality and land use, plunged from $31.6 million in fiscal year 2007 to $9.1 million in fiscal 2011. That’s the lowest figure since at least 2002 and about half the 10-year average.
The collection of fines is down as well, dropping to $7.5 million in fiscal 2011, the lowest figure since 2006. Also, the number of enforcement inspectors has dropped by about 20 percent over the past five years, making it more difficult to catch polluters in the first place.
At the same time, the DEP has dramatically increased the number of settlements it has agreed to, allowing polluters to get off with relatively small fines. These settlements, the environmental equivalent of a plea bargain, allow violators to pay far less in fines, sometimes pennies on the dollars.
This “relaxed” enforcement policy was part of a broader Christie/Martin “DEP Transformation” agenda to gut the traditional DEP regulatory enforcement paradigm and replace it with a voluntary, privatized, corporate model (based on private 3rd party “certifications” and “incentives (and “dispute resolution” and “self-disclosure immunity”.)
Enough of the Christie – Martin past. Let’s lay out a reform agenda for Gov. Murphy and his DEP Commissioner McCabe.
Below is a short list of the kind of tough substantive questions that begin to outline the legislative and regulatory policies that need to be addressed, posed as questions to Gov. Murphy and his DEP Commissioner Nominee McCabe. These questions should be asked by the media and legislators and frame the demands that must be made by environmental groups.
DEP Commissioner nominee McCabe should face these kind of questions during her upcoming Senate Confirmation hearings.
In this initial effort – which is off the top of my head – I limited the supporting information and links to the first question. I could do the same for each of the 39 questions, but that would make the post far too long – and be more work than I care to do right now.
I format and begin with an emphasis on water resources because that’s what NJ Spotlight asked for from readers. To get a more comprehensive agenda and flesh the below questions out and back it up with supporting material, the intrepid journalist and activist might want to review the last 8 years of NJ Spotlight coverage of the Christie Administration, NJ PEER press releases, and posts here at Wolfenotes (use the search function in the upper right corner of the page).
I’ll try to doing subsequent posts for questions on other DEP programs and climate and energy policy questions.
1. In May 2010, the NJ DEP issued a Report that found over 500 unregulated chemicals in NJ water supply & that granular activated carbon (GAC) treatment was cost effective.I wrote:
DEP scientists presented a Report to the NJ Drinking Water Quality Institute on May 7, 2010.
The Report, entitled “Investigations Related to a ‘Treatment-Based’ Regulatory Approach to Address Unregulated Contaminants in Drinking Water“ found over 500 unregulated chemicals are present in NJ drinking water.
It recommended that public water supply systems install treatment to reduce the health risks of these chemicals.
DEP has known about these risks since 1997 – but has failed to act to protect public health.
We are petitioning DEP to develop regulations that require public water supply systems to install treatment systems, monitor for these chemicals, and disclose these risks to consumers.
The DEP denied our petition.
So, will the Murphy DEP continue the ineffective chemical specific risk assessment approach to developing drinking water MCL’s or shift to a Treatment Based Approach, as recommended by DEP scientists almost a decade ago?
2. Will the Murphy DEP adopt regulations to quantify and enforce Natural Resource Damage (NRD) injuries in order to fix legal and technical defects found by NJ Court decisions and vulnerabilities that Gov. Christie’s AG found weakened the State’s litigation hand and used as a rationale to settle not further litigate (i.e. Exxon et al)?
3. Will the Murphy DEP repeal Christie DEP rollbacks of stream encroachment (C1 protections), CAFRA (and not just the public access provisions), WQMP, & Highlands regulatory protections?
4. Will the Murphy DEP rescind, strengthen, and replace the Christie DEP Water Supply Plan (after holding public hearings throughout the state)?
5. Will the Murphy DEP reverse Christie DEP Clean Water Act TMDL policy for Barnegat Bay & trigger a watershed-wide TMDL for the entire Bay? (DEP’s water quality monitoring, assessment, and TMDL programs need major overhauls after 8 years of Martin’s neglect and politicization of science).
6. Will the Murphy DEP mandate the statistical 500 year event in all DEP water resource & infrastructure programs to reflect climate change impacts?
7. Will the Murphy DEP act on DEP scientists’ recommendations in a DEP Report to upgrade several streams to Category One status & otherwise expand the C1 program that was stalled by the Christie DEP?
8. Will the Murphy DEP rescind and replace the Christie DEP “Nutrient Criteria Enhancement Plan” & enforce nutrient criteria Surface Water Quality Standards in land use permitting and mandate nutrient removal treatment in NJPDES POTW permits? (POTW = sewage treatment plants)
9. Will the Murphy administration develop a regional land use regulatory planning scheme to protect water resources of the ecologically exceptional, highly vulnerable, and badly neglected Delaware Bayshore? (along the lines of Pinelands and Highlands)
10. Will Gov. Murphy repeal Gov. Christie’s Executive Orders #2 (regulatory relief, federal consistency, pre-proposal review) and #3 (Red Tape)?
11. Will Gov. Murphy & DEP incorporate climate change reviews, backed by enforceable standards, retrofit requirements, and offsets, to meet the emission reduction goals of the Global Warming Response Act in all land use, infrastructure, air quality, and water resource permits?
12. Will Gov. Murphy – like NY Gov. Cuomo – direct DEP to deny all fossil infrastructure permits based on Clean Water Act Section 401 Water Quality certification?
13. Will Gov. Murphy reverse Gov. Christie’s water resource infrastructure, State lands, & State Parks privatization policies and rescind Christie privatization Executive Orders (see EO17)?
14. Will the Murphy DEP reverse the Christie DEP State Public Lands logging policies and plans (i.e. Sparta Mountain WMA “Forest Management Plan”, stop privatizing planning stormwater state lands and parks by so called conservation groups like NJ Audubon and NJ Future, and revise all similar “Stewardship” initiatives”, et al))
15. Will the Murphy DEP repeal current policy to rely on “BMP’s” and instead enforce NJ Surface Water Quality Standards on forestry, agricultural practices and in freshwater wetlands and land use permits?
16. Will Gov. Murphy issue Executive Orders to expand public involvement in DEP regulatory & permit decisions and develop Urban environmental quality and environmental justice policies, including mandatory Environmental Justice reviews in designated EJ communities?
17. Will the Murphy DEP close many loopholes and gaps in DEP’s site remediation program to protect groundwater resources & water supplies?
18. Will the Murphy DEP abolish the Science Advisory Board, which has gross conflicts of interest and has become a vehicle for undue industry access, politicization of science, and attacks on regulatory public health and environmental protections?
19. Will the Murphy DEP stop issuing and revoke hundreds of existing DEP approved “Classification Exception Areas” that waive compliance with groundwater quality standards and instead mandate permanent cleanup of groundwater at high risk contaminated sites?
20. Will the Murphy DEP adopt long overdue “eco-flow goals” in water allocation regulations, backed by enforceable numeric standards?
21. Will the Murphy DEP begin to enforce exceedences of current water allocation permit limits?
22. Will the Murphy DEP revoke and strengthen DEP’s “Vapor Intrusion Guidance” to eliminated the “phased approach” and protect people in their homes from toxic pollution vapors?
23. Will the Murphy DEP revive and adopt drinking water MCL for perchlorate proposed by the Corzine DEP and killed by the Christie DEP, as well as 14 other hazardous drinking water contaminants previously recommended by the Drinking Water Quality Institute?
24. Will the Murphy DEP begin to collect market based lease and easement revenues for private use of state lands and natural resources?
25. Will Gov. Murphy support, work with Senator Smith, and sign legislation to eliminate the current$50 million cap on liability for spills?
26. Will Gov. Murphy support and work with Senator Smith to enact water user and development or impervious surface impact fees to fund the multi-billion dollar water infrastructure deficit?
27. Will the Murphy DEP end current DEP policy to rely on “shelter in place” responses to chemical spills and catastrophic releases and begin to develop protective policies for those who live in mapped “off site consequence” areas under NJ State TCPP and federal Clean Air Act ARP programs? (Paulsboro train derailment et al).
28. Will Gov. Murphy use his powers to block “bomb trains” and other unsafe toxic rail and truck shipments through NJ to protect vulnerable communities? How will the administration address these unacceptable risks?
29. What will the Gov. and the Murphy DEP do to promulgate enforceable requirements for reducing risks identified in NJ’s federally mandated Hazard Mitigation Plan?
30. Will the Murphy DEP revoke and reissue the Christie DEP stormwater and CSO permits to include enforceable timetables and technical requirements?
31. Will the Murphy DEP adopt new rules to mandate risk assessment – based on cumulative risk to the most vulnerable populations – and more stringent “advances in the art” (NJ’s legal standard) air pollution controls for Hazardous Air Pollutants (HAPs)
32. Will Gov. Murphy support and work with the legislature to ban importation and disposal of fracking wastewater? Will the DEP use all regulatory tools to restrict such practices?
33. Will the Murphy DEP restore the Commissioner’s Office that conducts department-wide policy, planning, and regulation, while applying DEP’s scientists recommendations? This Office was abolished by the Christie DEP.
34. Will the Murphy DEP eliminate Christie DEP initiatives, programs, and Offices designed to serve corporate interests over protection of public health and the environment, including “culture change”, “customer service”, economic development, dispute resolution, sustainable towns and business, et al?
35. Will the Murphy DEP re-open Bulls Island State Park?
36. Will the Murphy DEP sever all relationships, State funding, and pending projects with NJ Audubon Society?
37. Will the Murphy Administration terminate funding and support of “Sustainable NJ” and stop outsourcing climate adaptation to private groups and local governments?
38. Will Murphy terminate Christie plans to develop and/or privatize Liberty State Park and terminate all State funding and support for NJ Future?
39. What are the Murphy Administration’s specific plans to get the Pinelands Commission and Highlands Council back on track?
I saved the best for last:
40. Given NJ’s experience with Superstorm Sandy and Gov. Christie’s “Rebuild Madness”, will Gov. Murphy support and sign legislation to:
a) establish a Coastal Commission to conduct regional climate adaptation and land use planning and environmental management?
b) repeal the “right to rebuild” storm damaged properties in CAFRA and the Flood Hazard Control Act?
Will these kind of questions be asked? Will NJ’s environmental community make these kind of specific demands publicly and criticize failure to engage?
The whole State is watching.