WolfeNotes.com

Settlements executed and approved by the Court months ago – what explains delay?

Disclosure of methodology for calculating economic damage to natural resources is key

The DEP just requested an unexplained delay in complaint with the Open Public Records Act (OPRA) 7 day statutory deadline for response. In a March 23, 2018 email, DEP’s OPRA office wrote:

The New Jersey Department of Environmental Protection, Office of Record Access received your Open Public Records Act (OPRA) request on 3/14/18 to which the above tracking number was assigned. As such, the seven (7) business day deadline (due date) to respond to your request is 3/23/18.

Your request requires additional time beyond the due date because of the time required to search for the responsive records. Your request requires an extension of time until [4/2/18].

How could DEP need more time “to search for responsive records” of this significance? Didn’t Acting Commissioner McCabe review these documents before DEP signed off on the Christie DEP negotiated deals?

DEP provided no explanation for the need for additional time. Given that the NRD settlements were executed, subject to public comments, approved by the Court months ago, and the subject of a press release by the Attorney General, the documents I requested should be readily available.

These documents are critically important to public understanding of the NRD settlements and whether the Murphy DEP is engaged in reforms to the controversial pro-polluter Christie DEP NRD program.

These documents will provide critical facts including: how many oil and gas station facilities were part of the settlements; where they are located; how extensive the groundwater pollution is, in terms of location and concentrations of pollutants; where the groundwater pollution threatens or already have contaminated municipal and private water supplies; and how DEP calculated economic value of the damaged groundwater resource.

Background

In response to recent news reports on the Murphy Attorney General’s press release announcing $200 million in natural resource damage (NRD) lawsuits with major oil companies for poisoning groundwater across the state with the gasoline additive MTBE, I filed a public records request for the underlying “damage assessments” that formed the basis of the AG’s settlements.

On March 14, I filed an OPRA for:

I request copies of the Natural Resource Damage Assessments DEP conducted for MTBE injuries to groundwater in support of the NRD Settlements that were announced by Attorney General Grewal’s 3/12/18 press release, including Sunoco, BP, Amoco, Atlantic Richfield, Shell, and all others.

The underlying damage assessment documents are critical to understanding whether the negotiated settlements reflect actual economic damages, or whether they replicate the notorious Exxon settlement, where the Christie Administration settled for pennies on the dollar of DEP’s $8.9 billion damage assessment.

The NRD damage assessment documents will also reveal the DEP’s methodology for calculating economic damages for “lost use” and related NRD injuries associated with the MTBE groundwater pollution.

NJ Courts have struck down DEP NRD lawsuits due to DEP’s failure to promulgate such a methodology in regulations.

Former DEP Commissioner Brad Campbell – who revived a moribund NRD program after 8 years of neglect by the Whitman Administration – entered into a litigation settlement agreement that pledged to adopt NRD damage assessment regulations, as noted by a Deputy Attorney General:

A March 23, 2003, letter from deputy attorney general Richard Engel to Picco said the DEP “has long planned to promulgate regulations to improve the current Natural Resource Damage program” and “is currently developing its regulatory proposals, and plans to file one or more rule proposals prior to Aug. 1, 2005.”

The “forthcoming rules clearly will afford the NJ SEED plaintiffs an administrative forum, subject to judicial review, in which to present policy and legal arguments presented in or related to the pending litigation,” Engel said in the letter.  ~~~~ see:  NJ Law Journal

The DEP never followed through with Campbell’s legal commitments to adopt NRD regulations.

As a result, the failure to adopt NRD regulations was a major contributing factor in the assessment of “litigation risk” by the Christie AG, which led to a paltry pennies on the dollar settlement with Exxon.

The fact that DEP is requesting delay in response does not inspire confidence that reform of the NRD program is a  priority to the Murphy Administration, or Acting DEP Commissioner McCabe, who served as a natural resource lawyer for the US Justice Department so surely knows the significance of the issues.

We will keep you posted in terms of what DEP provides on their new April 2 deadline.

Egregious political abuse of the permit process – gross “ex parte” communications

What is Acting Commissioner McCabe – a former Judge – thinking?

[Update below]

Political appointees to the Murphy DEP have intervened in a permit process begun under the Christie Administration. The way they have intervened is totally improper.

Specifically, after a radio phone call-in conversation between Gov. Murphy and a resident of Pompton Lakes, Gov. Murphy directed Acting DEP Commissioner McCabe to reach out and “investigate”.  In response, at the direction of Acting Commissioner McCabe, a DEP political appointee – and former aid to Senate President Sweeney – Eric Wachter, now DEP Chief of Staff – reached out and is working with a handful of residents of Pompton Lakes.

There is nothing inherently wrong with that outreach, but the way Wachter has intervened is totally wrong.

Wachter has directed DEP regulatory (permit) staff to contact residents of Pompton Lakes who testified and/or attended a September 26, 2017 public hearing on a discharge to groundwater permit for a pilot study that Dupont has proposed to conduct.

Wachter directed DEP regulatory staff to provide a copy of the transcript of the public hearing – again, nothing wrong with that – and allow them to review and revise and supplement their public hearing testimony, 6 months after the public comment period closed.

Here is the DEP email to residents from DEP regulatory staff (directed by Wachter)

Review of the public hearing transcript has revealed that it may not have captured some of the comments made during the testimony phase of the public hearing.  To ensure that we address your concerns and questions about the Permit by Rule Application, I have attached a copy of the transcript to this e-mail.  I am asking that you review the statements attributed to you in the transcript on pages 25-27, and let us know if it accurately reflects your comments.  I

That is a classic political abuse of the permit process known as “ex parte communications” –

Don’t be intimidated by the fancy legalese and latin. Here is an accessible article that explains why “ex parte” communications are prohibited in regulatory (permit) decisions that are required to be based on an administrative record. Hit the link and read the whole thing:

Talking Behind the Public’s Back – The Ex-Parte Problem

We all like to be “in the know.” There are few things quite as aggravating as feeling like you’re the last person to know what’s going on and being “on the outside looking in.” That’s especially true when as a citizen you’re trying to find out what’s happening on a proposed development project that may affect your community, or possibly even your own home or business.

Yet, that’s what can happen when our government’s decision-making processes give the appearance, real or imagined, of being either one-sided or impartial, and full due process is not provided for.

In a democratic society, open, fair decision making is critical to whether the public trusts what the government is doing.

Ex parte is Latin meaning “from or on one side only, with the other side absent or unrepresented.”  In a democratic society, open, fair decision making is critical to whether the public trusts what the government is doing.

The irony is that residents of Pompton Lakes are SUPPORTING this DEP abuse, instead of simply demanding that DEP either hold a new public hearing.

Can you imagine their anger if DEP did the same ting with Dupont? i.e. quietly worked behind their backs and allowed Dupont people to supplement their testimony 6 months after the public comment period closed?

Dupont’s lawyers know that this DEP practice is blatantly illegal – therefore, in the event that DEP actually denied their permit for the pilot test, they would sue DEP and a court would blast DEP for this abuse.

Mr. Wachler at DEP is either incompetent or he is intentionally sandbagging the DEP permit review to allow Dupont to prevail and then blame a court for having to issue the Dupont permit.

What I can’t figure out is that Wachter is acting at the Direction of Acting DEP Commissioner McCabe. McCabe is not only a lawyer, but a former judge on EPA’s  Environmental Appeals Board.

Acting Commissioner McCabe from 2011 to 2014 served as a judge on the EPA’s Environmental Appeals Board, and from 2005 to 2011 she served as Deputy Assistant Administrator of EPA’s Office of Enforcement and Compliance Assurance.

She obviously knows this kind of agency behavior is strictly prohibited.

What the hell is really going on?

Who is running the show at DEP?

[Update – 3/24/18 – If DEP legitimately wants to clarify the testimony and/or transcript to better understand public concerns, then the correct way to do that is simply file a public notice announcing re-opening of the public comment period and scheduling another public hearing.

The fact that they seem to ignore the correct procedure is troubling – a big part of restoring integrity to DEP is to convince the DEP staff and the public that politics and cronyism are no longer acceptable in DEP decision-making.]

I was just recalling that I read somewhere that Gov. Murphy’s first budget allocated $5 million to “rejoin RGGI”. I even wrote DEP an email asking where all that money was going and why it was necessary:

Hank – I read that Gov. Murphy’s budget included a $5 million appropriation to DEP or BPU “to rejoin RGGI”.

How could dusting off and updating the prior regulatory proposal and adoption documents possibly cost $5 million?

Where is that money going? Consultants? DEP budget?

I figured that it must be a mistake – if not, I’d offer to write the rules to rejoin for $5,000!

So, I looked into it and sure enough, the misleading distortion and spin is coming both from Gov. Murphy (an administration that’s starting to look like the gang that couldn’t shoot straight on environmental and energy issues) and his friend, Jeff Tittel.

Tittel wrote this, which is flat out wrong:

“We also see a continuation of raiding funds from the Clean Energy Fund. The budget takes about $90 million from the Clean Energy Fund for other purposes including $80 million for NJ Transit and $5 million to implement RGGI.

The budget does NOT include “$5 million to implement RGGI.”

Gov. Murphy’s budget address is equally misleading, and, because he has lots of paid professional staff who must know better – worse than Tittel’s flat out error.

Here is Murphy’s budget address text on point (@ page 6):

The Governor fails to note that his budget, according to NJ Spotlight, proposes to divert $136 million in Clean Energy Funds, an amount that dwarfs the $5 million he proposed for the Energy Savings Improvement Program, which only applies to State government (and therefore offsets other necessary State appropriations, a zero sum game).

Tittel just took the Gov.’s misleading spin and distorted it into falsehood.

No big deal, because no media outlets picked up on it anyway.

But the lies and spin are already huge – by the Murphy administration and by his friends – and that’s a very bad sign.

“no further public notice is anticipated regarding groundwater contamination.”

This key point got buried in a long rambling post about the history of the DEP’s ACO with Dupont, so I thought I’d make it a stand alone post.

Dupont’s own words prove that they’ve been trying to conceal massive groundwater contamination – which ultimately caused the current vapor intrusion problem – for over 25 years.

Here is the EPA 1992 RCRA Corrective Action Permit it issued to Dupont – it included Dupont (and all public ) comments and EPA’s response to Dupont’ comments.

See Dupont comment #3 of page 4. This is what Dupont wrote:

The final paragraph in the [EPA RCRA permit] should clarify that no further public notice is anticipated regarding groundwater contamination.”

Let’s repeat that – Dupont demanded that:

no further public notice is anticipated regarding groundwater contamination.

No further public notice means that the public would not be made aware of the groundwater contamination and EPA’s efforts to compel Dupont to clean it up.

As my Grandfather used to say: How do you like ‘dem apples?

Thankfully, EPA rejected Dupont’s demand: (page 5)

The Dog Ate the Public Hearing Transcript

If DEP can’t get the little stuff right, how can they manage complexity?

[Update below]

Six months ago, the DEP held a public hearing on a draft permit to allow Dupont (Chemours) to conduct a controversial groundwater cleanup pilot study (that’s no typo: yes, Dupont is conducting a pilot study, 40 years after the start of the cleanup process).

By way of background – DEP regulations do not require and DEP initially did not require that a public hearing be held on this controversial Dupont pilot study. Only strong demands from residents of Pompton Lakes persuaded DEP to hold a public hearing.

Now, 6 months later, after getting multiple requests from the public for a copy of the public hearing transcript for DEP’s September 26, 2017 public hearing on the controversial Dupont (Chemours’) Application for New Jersey Pollutant Discharge Elimination System (NJPDES) Discharge to Ground Water Permit by Rule, the DEP has admitted that it can not provide one.

The dog ate the transcript!

Seriously, according to a March 15, 2018 email from Wayne Howitz, Assistant Director of DEP Remediation Oversight Element to people who requested a copy of the transcript – DEP is asking that they retroactively provide accurate or additional comments!:

Review of the public hearing transcript has revealed that it may not have captured some of the comments made during the testimony phase of the public hearing.  To ensure that we address your concerns and questions about the Permit by Rule Application, I have attached a copy of the transcript to this e-mail.  I am asking that you review the statements attributed to you in the transcript on pages 25-27, and let us know if it accurately reflects your comments.  If you believe your testimony was not fully captured, please provide us with written comments to accurately reflect the comments you made at the hearing.  If you believe the transcript accurately captured your comments, we would appreciate it if you would let us know that you approve the statements attributed to you in the transcript.

DEP must know that it doesn’t work that way.

So, I fired off this letter to DEP to demand that another public hearing be held so that the public can be provided their full due process rights and a complete and accurate administrative record is developed.

I urge all those who attended and/or testified at the public hearing to send a similar demand to DEP: Whether or not you write, DO NOT COMPLY WITH DEP’S REQUEST (I removed the DEP staffer’s name who sent the email to avoid embarrassment – and could you imagine the heads that would roll at DEP if DEP lost Dupont’s comments?)

Dear DEP:

A March 15, 2018 email from you to persons that testified at the subject public hearing (see below) was provided to me.

The Administrative Procedures Act, DEP regulations, and fundamental principles of Administrative Law require that a verbatim transcript of the public hearing be certified by a licensed stenographer. A verbatim transcript is required for, among other things, review by the DEP hearing officer, review by the DEP Commissioner, and review by an  Administrative Law Judge and/or judicial review by a law Court to review the complete and accurate administrative record.

The Department has failed to comply with basic formal public hearing requirements. As a result of that failure, the public has been denied full due process rights; the stenographer and the DEP Hearing Officer can not certify the public hearing; the DEP can not respond to public comments; and the OAL and law courts can not conduct judicial review of the facts.

Therefore the administrative record is flawed and must be remedied by holding another public hearing.

I demand that another public notice, public comment and public hearing be held in the subject matter to resolve this error.

Respectfully,

Bill Wolfe

 If DEP can’t get the little stuff right, how can they manage complexity?

[Update – 3/20/18 – A resident of Pompton lakes – who shall remain nameless here – apparently taped the DEP public hearing in question and provided that tape to DEP. She/he is now asking if DEP can use that to write the official hearing transcript. My reply:

No, DEP can’t use a citizen’s audio – do yo want DEP using a Dupont audio? Do you want DEP allowing Dupont to expand upon and rewrite their testimony like they did to “our side”?

What’s good for the goose is good for the gander.

The DEP hearing officer must certify the hearing record and the stenographer must certify the verbatim transcript – just like an accountant or lawyer or Notary Public or Court reporter.

WTF is XXXXX thinking? Why is she/he willing to play games with DEP all of a sudden?  ~~~ end update]