Archive for June, 2018

What Explains NJ Senate Delay In Confirming Murphy’s Acting DEP Commissioner McCabe?

June 5th, 2018 No comments

Senate President Sweeney has yet to release the hostage

Sweeney “squeezes the juice” out of Murphy and McCabe

Is he still holding McCabe hostage in exchange for his wetlands enforcement intervention?

(L-R) Senate President Sweeney; Acting DEP Commissioner McCabe; Assemblyman Burzichelli (Source: YouTube)

(L-R) Senate President Sweeney; Acting DEP Commissioner McCabe; Assemblyman Burzichelli (Source: YouTube)

[Update: 2 days after this post, McCabe was confirmed by the full Senate on June 7, 2018.]

It is June 5 and Acting Commissioner McCabe STILL has not been confirmed by the full NJ Senate.

McCabe testified before and was approved by the Senate Judiciary Committee almost a mont ago (May 14).

This is the longest Senate hold on a DEP Commissioner in my 33 year experience with NJ DEP.

It could be the longest ever.

What does Sweeney want? What’s the holdup?

He already got Murphy to sign his PSEG nuke bailout and limit the expansion of renewables.

He already got Murphy to sign his Dupont fracking wastewater OK. Gov. Murphy answered NJ Spotlight’s question with a big wet kiss.

He already got Murphy to sign a cover bill that appears to promote wind, but retains the poison pill “cost test” that authorized BPU to kill wind based on a fatally flawed cost – benefit methodology.

That law derailed a prior bill that would have repealed the OWEDA “cost test” that was the poison pill Sweeney got duped on by Gov. Christie in the Off Shore Wind Act (OWEDA).

Likely due to Sweeney pressure, McCabe’s DEP folded and walked away from assuming control on the long delayed and partial Dupont “cleanup” of their Pompton Lakes site.

Likely due to Sweeney pressure, Murphy did not support calls for a Coastal Commission Sweeney opposed.

Murphy has done nothing at the Pinelands Commission, likely to appease Sweeney who worked with Gov. Christie to corrupt the Commission and ram new gas pipelines and power plants through the regulatory process.

Remarkably, McCabe testified that she was “unfamiliar” with the DEP’s “Category One” (C1) program that Sweeney opposed when DEP originally adopted regulations and Sweeney cut a deal with Christie/Martin to avoid a legislative veto of DEP rules that rolled back C1 buffer protections.

Likely due to Sweeney pressure, Murphy and McCabe folded on stopping the bear hunt.

Murphy appointed Bob Gordon, a moderate former Senate Democrat to the BPU, likely as a result of Sweeney lobbying. Gordon is smart, but he failed to follow through on many things, including BPU implementation of flawed cost – benefit methodology to kill wind.

Sweeney got his former Senate aid, Eric Wacther, installed as McCabe’s Chief of Staff.

Is he still holding McCabe hostage in exchange for his wetlands enforcement intervention?

What else does Sweeney want? He’s already got a LOT of concessions.

Maybe even more concessions, perhaps on an MCL or for Dupont liability for PFOA, PFOS, PFC’s?

Is Sweeney seeking a weak RGGI cap? in RGGI negotiations?

Is Sweeney seeking continuance of NJ law’s RGGI loopholes to protect Big Oil and the carbon polluters in his District?

Approval of the Pinelands and PennEast gas pipelines?

Is Sweeney pressuring Murphy to retain Gov. Christie’s regulatory policy expressed in Christie executive orders that benefit the big polluters in his District?

Does Sweeney want Murphy to help accelerate privatization of public water and sewer systems? (see: 

Sweeney is acting like Gov. Christie’s  – “squeezing the juice” out of a weak DEP Commissioner and a spineless Governor.

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Gov. Murphy Can’t Say No To Dupont – Says “Frack You” To The Delaware River & People of Pompton Lakes

June 3rd, 2018 No comments

Dupont Fracking Profits Trump Delaware River

How do NJ Democrats got from banning fracking imports to encouraging them?

DEP Caves On Superfund  – Will Not Assume Control Of Cleanup – Dupont Still In Charge

  • Gov. Murphy explicitly supported importation of toxic waste and creation of a market in toxic waste management. That would result in importation of “more toxic waste in NJ”.
  • Murphy CV reduces “regulatory uncertainty” and explicitly makes it easier for Dupont to secure DEP permit approvals.
  • After misleading the NJ Senate during her confirmation hearing, McCabe is now lying to the press and the public.

Governor Murphy made two horrible decisions this week that show he lacks a spine and can not say no to powerful corporate interests like Dupont, or their puppet, Senate President Sweeney.

Both decisions echo prior decisions made by Gov. Christie. Follow.

I)  Importation and disposal of fracking waste in the Delaware River

The Dupont corporation (now spun off as Chemours) wants to import toxic wastewater from fracking operations in nearby Pennsylvania, treat it, and discharge partially treated wastewater to the Delaware River.

This would threaten the Delaware River because fracking wastewater is a toxic soup of chemical and radioactive contaminants, many of which can not be removed by current treatment technology and would be discharged directly to the Delaware River, threatening ecosystems, fisheries, and public health. In addition, there are risks of spills, leaks, and accidents from truck transportation and handling and storage at Dupont’s Deepwater site.

During the Christie administration, the Democrat controlled legislature – twice – passed bills to ban this practice (see: NJ Democrats Go From Banning Fracking Wastewater to Deregulating and Promoting It).

Governor Christie – twice – vetoed those bills. Taking NJ back to the bad old days, Christie supported Dupont’s efforts to expand a profitable market in waste management and import toxic fracking wastewater.

Remarkably, after Democrats twice previously passed ban bills, under a Democratic Governor, they recently passed a Sweeney sponsored bill – applicable exclusively to Dupont’s Deepwater facility in Sweeney’s district – to encourage Dupont’s scheme and exempt Dupont from DEP permit requirements designed to protect public health and the environment.

It was corrupt special legislation designed to exempt Dupont from strict environmental regulations.

When environmentalists and the press called them out on this BS, Sweeney and other legislators flat out lied and claimed that the bill would not do that. They called the bill purely a “procedural” move.

This week, Gov. Murphy “conditionally vetoed” (CV) the Sweeney bill. If the legislature concurs with the Gov.’s CV, the bill becomes law. The CV says the bill lacks adequate “safeguards”, and contradicts Sweeney’s “procedural” assertions.

The CV is being badly mis-reported in the press, see: Phil Murphy refuses to sign DuPont spinoff co.’s bill to allow more toxic waste into NJ.

The press is creating two totally false impressions that: 1) Gov. Murphy opposes importation and expansion of toxic waste in NJ; and 2) the “safeguards” and requirements of the CV will block Dupont’s plans.

The exact opposite is true:

1. In his CV, Gov. Murphy explicitly supports the importation of toxic waste and creation of a market in toxic waste management. That would result in importation of “more toxic waste in NJ”.

Gov. Murphy wrote:

While I certainly support the intent of the bill’s sponsors to simplify the process of siting facilities that until recently were authorized to operate as commercial facilities and conduct commercial hazardous waste operations, I am concerned that the bill does not contain specific safeguards to protect the health of our environment and the safety of our residents.

First of all, the sponsors did not seek to “simplify the process”, they sought to exempt Dupont from the DEP permit process.

Secondly, Murphy explicitly supports the “conduct of commercial hazardous waste operations”.

By definition, that means importation of more toxic waste into NJ and discharging it to the Delaware River – exactly the opposite of what the press is reporting.

The Gov.’s CV also locks in and approves Dupont’s existing treatment capacity – a huge amount that they have not used in years:

may resume commercial hazardous waste operations at the capacity which existed at the time the facility had stopped accepting hazardous waste generated off-site, but the baseline capacity established pursuant to P.L.1981, c.279 (C.13:1E-49, et seq.) shall remain unchanged

Dupont would have a very tough time justifying that much capacity – so the CV not only gives a favorable regulatory incentive to Dupont and allows Dupont to accept a LOT of fracking wastewater, it locks in a valuable asset and marketable commodity (which they may have already sold to Chemours).

2. The press also reports that the “safeguards” in Murphy’s CV will block Dupont’s plan.

That is flat out false as well.

In fact, the CV reduces “regulatory uncertainty” and explicitly makes it easier for Dupont to secure DEP permit approvals.

Specifically, there are two kinds of DEP approvals involved: a) a relatively easy to receive “permit modification” of an existing permit; and b) a far more rigorous and difficult to obtain “new permit”.

The legal and technical burdens are far lower for a permit modification than a new permit. Take my word for it, a full explanation is beyond the scope of this note (or Google the DEP NJPDES and RCRA permit regulations and find out for yourself)

The CV would allow Dupont to secure a “permit modification” from the DEP, and do so under existing rules.

The reliance on existing rules basically blocks DEP from adopting new regulations to close huge loopholes in existing permit rules that apply to fracking wastewater. It also makes it harder for DEP to deny any Dupont application because the law requires that permits be reviewed under the rules in effect at the time the application is submitted.

Here is the applicable text Murphy wrote:

provided that, prior to commencing such operations, it applies for and obtains necessary modifications to its existing operating permit or permits or a new operating permit or permits, as may be applicable, which shall require compliance with current regulatory standards issued or adopted by the department.

Gov. Murphy could have: 1) declared a moratorium in fracking treatment and discharge permits, 2) mandated that DEP adopt new rules to close loopholes in current rules; and 3) that Dupont secure a new permit under new more protective rules.

But he didn’t do any of that. He did the opposite on all 3 policies.

So, the fine print directly contradicts the Gov. spin, as reported in the press.

Of course, if he really wanted to block the Dupont fracking plan, he could have simply straight up vetoed the bill.

And Sweeney is lying again too: (Record)

But at a news conference Thursday, Sweeney said he was fine with the changes suggested by Murphy. “We want the same things, and if you want a belt and suspenders, you know, that was our goal from the beginning,” he said. …

Business groups and some local officials said the bill was simply a procedural move that will allow wastewater to be properly treated while benefiting the Salem County area.

While misreporting the effect of Gov. Murphy’s CV, the Record did get something important right, that explains a lot of what is going on here:

Like many companies, DuPont and Chemours have tried to influence regulators and lawmakers for decades, employing as many as three lobbying firms in one year. 

The companies paid more than $1.1 million to lobby New Jersey officials from 2011 through 2016, records show. Their interests have also been advocated by the powerful New Jersey Chemistry Council, a lobbying group that represents dozens of companies regulated by the DEP and the federal Environmental Protection Agency.

II)   After Murphy Alludes to Love Canal, Acting DEP Commissioner McCabe folds on Dupont Pompton Lakes Cleanup

 After Gov. Murphy compared the Dupont Pompton Lakes site to the infamous Love Canal, residents renewed their push to have the site managed under the federal Superfund program and Murphy directed DEP Acting Commissioner McCabe to conduct a review of the situation and submit recommendations to him.

But the press failed to report that residents also asked the Murphy DEP to revoke the 1988 Administrative Consent Order (ACO) that allows Dupont to control the cleanup process and instead assume complete DEP control of the cleanup.  (Press should contact Lisa Riggiola of CCPL for a copy of that letter to Murphy & McCabe. Or I’d be glad to forward an email copy.)

Regardless, McCabe just folded on both demands.

The Record reported today: Like Christie, Murphy’s DEP says no to Superfund for Pompton Lakes cleanup

Gov. Phil Murphy’s administration has no plans to seek Superfund status to speed cleanup of a contaminated plume and former DuPont munitions site in Pompton Lakes, despite pleas for such action from many residents who must live with the cancer-causing pollution.

“I don’t see any advantage in Superfund,” Catherine McCabe, acting commissioner of the state Department of Environmental Protection, said last week in an interview with The Record and

More of the “continuity” and lies we’ve be writing about. And I hate to say it, but we told you this was coming months ago (see: Played In Pompton Lakes)

[A friend just noted that McCabe made her decision without meeting with or talking to the People of Pompton Lakes – a big contrast to her outreach and “listening session” during the “Sweeney Tour”.]

To their credit, the Record reported that McCabe’s claims of “no advantage in Superfund” were flat out contradicted by McCabe’s former agency, US EPA:

Superfund status would provide a more ironclad cleanup plan for Pompton Lakes that could not be as easily challenged by Chemours, according to U.S. Environmental Protection emails obtained by The Record and

It would also give residents more opportunity to have their concerns heard. And it would allow them to hire independent contractors to examine mounds of scientific data.

But that’s not all.

McCabe directly contradicted her prior boss at EPA, EPA Regional Administrator Judith Enck, who said:

Six years ago, a leading EPA official told McCabe’s predecessor, then-DEP commissioner Bob Martin, how Pompton Lakes would benefit from Superfund.

Judith Enck, a former EPA regional administrator, pushed Martin and the Christie administration in 2012 to put Pompton Lakes into the Superfund program.

States must nominate toxic sites to begin the Superfund process, and Enck said the Christie administration was the biggest obstacle.

“I think the new administration should consider sending a letter to EPA for Superfund designation,” Enck has told The Record, referring to the new Murphy administration.

After misleading the NJ Senate during her confirmation hearing, McCabe is now lying to the press and the public.

McCabe also completely obfuscated the issue on groundwater cleanup. McCabe said:

“It looks to me based on the scientific information we have that the plume is being cleaned up,” McCabe said. “As with any natural process this takes time, but the people living above the plume are protected by the vapor mitigation systems on their homes.” …

“The plume does seem to be attenuating,” McCabe said. “It seems to be working. But we’re always looking at ways that would speed up the cleanup process.”

First of all, a toxic groundwater “cleanup” is not a “natural process”.

Second, McCabe was referring to “natural attenuation”, a “passive remedy” that is basically a policy that waives compliance with groundwater standards and allows polluters off the hook for more costly and aggressive “active ” cleanup and “permanent remedy” like full contaminated source soil excavation and “pump and treat”.

These are regulatory policy decisions made by DEP that McCabe is dodging responsibility for and obfuscating as “science”.  Shame on her.

Dupont previously was required to install a groundwater pump and treat system, but was allowed to turn if off in favor of a cheaper “passive remedy” “natural attenuation” – dilution approach. They also have not removed all contaminated soils and sediments.

Residents and media need to ask DEP and EPA exactly WHEN the “natural attenuation” process will achieve compliance with NJ groundwater standards. 50 years? 100 years?

Dilution is not the solution to pollution.

Some “New era in environmental protection”.

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It’s No “New Era Of Environmental Protection” In the Pinelands – “Another Abomination”

June 1st, 2018 No comments

Underhanded Christie Loyalist Executive Director Wittenberg Still There

Commission To Vote On Rollback of Public Rights To Challenge Decisions

Legal Appeals Used In Pipeline Battles To Be Eliminated

Time to lay groundwork for Gov. Murphy to block rollback via veto of minutes

New Jersey’s Pinelands Commission was once a respected, independent steward of a forest that filters the drinking water for millions in the region. But political manipulation has turned it into an ineffective agency that looks the other way when the preserve’s delicate balance is threatened.  ~~~ Philadelphia Inquirer editorial: “Christie bullied Pinelands panel to get his way (3/9/16)

Beyond those seats, the next governor will also have the authority to immediately change the chairman and will likely be able to influence whether the commission keeps or replaces its executive director, Nancy Wittenberg.  “Next governor expected to make substantial changes to NJ Pinelands Commission (Burlington County Times 8/27/17)

[Update: the proposed CMP amendment was removed from the Agenda by Ex. Director Wittenberg a day before the meeting. We suspect that the Gov. Office pulled the plug. They now need to pull the plug on Wittenberg, who blindsided them with this scheme. End update]

Despite the Murphy administration’s declaration of a “new era in environmental protection”, after 5 months of inaction by Gov. Murphy, the Pinelands Commission has quietly revived a proposal to strip the public of rights to administratively appeal decisions and require evidentiary hearings. (see vague allusion to a CMP amendment in the Agenda for June 8 meeting).

Here’s how Executive Director Wittenberg described the controversial CMP amendment:

Also on the agenda is the adoption of amendments to the Comprehensive Management Plan related to the definition of “Interested Party”. We have enclosed a resolution, an adoption notice dated May 31, 2018, and the September 18, 2017 rule proposal. At its December 12, 2017 meeting, the Commission decided to postpone adoption of these amendments until a detailed examination of the Federal Pinelands legislation could be completed in response to the concerns raised by many public commenters. The examination confirmed that neither the Federal Act nor the State Pinelands Protection Act authorize third party adjudicatory hearings, nor do they confer a broader right to such hearings than provided by the New Jersey Administrative Procedure Act. Therefore, we are now recommending the Commission proceed with adoption of the amendments.

It is shocking that Wittenberg is still serving as Executive Director under the Murphy administration. Does Climate Champion Gov. Murphy know, among other things, Wittenberg derailed efforts to address climate change?

There is no excuse for Gov. Murphy not to move Wittenberg out after her pattern of flagrant abuse of the public, her covert work in support of pipeline corporate interests, and manipulation of the Commission on behalf of Gov. Christie’s Office, and even behind the back of the Commission:

One current Commissioner (LLoyd) that opposed was forced to recuse for highly dubious conflicts of interest (see NY Times:  Fighting a Pipeline, but Feeling and Fearing Christie’s Influence (1/8/14)

Although, technically, under the Pinelands Protection Act, Wittenberg serves at the pleasure of the Commission, the Gov. appoints the Chairman and has the effective power to assure that she leaves, voluntarily or via formal Commission action.

Gov. Christie installed Wittenberg – Gov. Murphy can move her out and install his own leader.

The rollback proposal emerged in the wake of pipeline battles, where the public invoked these rights to administratively challenge the Commission’s approvals to create a real factual record on controversial permit decisions.

An expert directly contradicted Wittenberg’s claim that “neither the Federal Act nor the State Pinelands Protection Act authorize third party adjudicatory hearings, nor do they confer a broader right to such hearings than provided by the New Jersey Administrative Procedure Act.

This expert called the rollback “an abomination”, it is:

a right that has been recognized in the Pinelands regulations since their inception, has previously been accepted by the Commission staff and the AG (until the pipeline cases), and has been used from time to time to create a real factual record on controversial permit decisions.  Several groups and individuals challenging the pipelines have invoked this right.

Prior to the current crew taking over, neither the Commission nor the AG found that this CMP right conflicted with the APA restriction on evidentiary hearing rights, because they correctly believed the right is founded in the terms of the federal and state Pinelands statutes.

Regardless of whether the Commission passes the CMP amendment, Governor Murphy has the power to block the move by vetoing the minutes: (see NJSA 13:18A-5. – Pinelands Protection Act)

h. A true copy of the minutes of every meeting of the commission shall be prepared and forthwith delivered to the Governor. No action taken at such meeting by the commission shall have force or effect until 10 days, exclusive of Saturdays, Sundays and public holidays, after such copy of the minutes shall have been so delivered; provided, however, that no action taken with respect to the adoption of the comprehensive management plan, or any portion thereof, shall have force or effect until 30 days, exclusive of Saturdays, Sundays and public holidays, after such copy of the minutes shall have been so delivered. If, in said 10-day period, or 30-day period, as the case may be, the Governor returns such copy of the minutes with a veto of any action taken by the commission at such meeting, such action shall be null and void and of no force and effect.

Wittenberg has proven to be a savvy politician, so I assume she knows she has the votes to approve the CMP amendment or she would not have put it on the agenda and suffered an embarrassing defeat.

Therefore, approval by the Commission is highly likely so the public must demand that Gov. Murphy veto the minutes upon submission.

As part of that lobbying effort, folks should also demand – consistent with the “new era in environmental protection” rhetoric – that he fire Wittenberg.

Enough is enough.

Billboard outside DEP Trenton HQ

Billboard outside DEP Trenton HQ

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