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Murphy Administration Spins Regulatory Failure In Drinking Water Crisis Into A Pathway For Privatization

No DEP Oversight – No DEP Enforcement Contribute To Crisis

Republicans Manufacture A “Fire Hydrant” Diversion

“The DEP does not currently have staff with the skill sets needed to conduct detailed reviews of Asset Management Plans and programs.” ~~~ NJ DEP testimony to legislature (link below)

I recently had an exchange with a reporter for a major news outlet working on a story about DEP’s oversight of the Newark lead crisis.

He was shocked to come across recent DEP testimony to the legislature that admitted a lack of data on the number and location of lead service lines. He directed me to see page 10, question 8, paragraph 3 of the exchange between DEP & the Office of Legislative Services (OLS).

He asked for some context and DEP and regulatory background for this stunning admission.

I suggested that he report the story from a broader perspective, and focus on the far more egregious admission in that same DEP – OLS exchange, regarding “asset management” (see DEP replies to question #6. on page 7), especially these points:

OLS Q: Will the department review each water system’s asset management plan?

DEP reply: No. Asset Management Plans are primarily meant to assist the water systems. Asset Management Plans and programs are complicated and system-specific.

But this DEP admission is even more jaw dropping:

The DEP does not currently have staff with the skill sets needed to conduct detailed reviews of Asset Management Plans and programs. The DEP is developing a program that relies primarily on the certification of Asset Management Plans by responsible entities, annual reporting of routine metrics and inspections.

Get that? DEP does not have staff “with the skill sets needed to conduct detailed review of Asset management plans and programs”.

That results in no DEP oversight:

OLS Q: Does the department have sufficient staff and resources to implement the WQAA effectively?

DEP reply: Currently, the DEP is relying on the certification required in the Act.

DEP is flying blind, trusting the kindness of strangers.

Reliance on “certifications” is sham. The sham is the result of: 1) lack of reliable data; 2) regulatory loopholes; 3) discretion of professional engineering judgment; and 4) the lack of effective DEP oversight and enforcement. These facts make a certification virtually meaningless.

But the failures involved more than just DEP lack of oversight.

I also suggested that the reporter look into DEP enforcement data, because DEP does little to no enforcement against local governments and the public sector as a whole. This lack of enforcement was made much worse by Gov. Christie’s Executive Order #4 regarding “unfunded state mandates”. DEP has a very hands off approach.

In Newark, DEP had issued numerous “Notices of Violation” (NOV’s) to the Newark water system for violation of MCL’s (see this and this), without taking enforcement action (i.e. fines and Orders that mandate corrective actions).

In fact, Newark’s attempts to correct the DEP NOV’s regarding violation of the MCL’s for Total Trihalomethanes (TTHMs) or Haloacetic Acids (HAA5) led directly to Newark making changes in water chemistry that then caused lead to leach from pipes and expose people to extremely high lead levels. 

So, DEP’s lack of enforcement and effective oversight directly caused and contributed to the Newark crisis.

I didn’t write about all this because I didn’t want to steal his story – and it was a very good one.

Well, the reporter – or his editors – never seem to have gotten around to publishing those bombshells.

So, today I was disgusted to read that the Legislature held hearings on asset management plans. Instead of focusing on the facts I documented above, the DEP’s regulatory failures, and loopholes in laws and regulations, the focus of the story was diverted and turned into a pathway to privatization: (NJTV News/NJ Spotlight story)

The act applies to public water systems with as few as 500 service connections, and one expert who analyzed the state’s data said the compliance rate may be a function of the small size of some of the systems.

“There’s a positive relationship between size and likelihood of compliance,” said Manuel Teodoro, an associate professor of political science at Texas A&M University. “Smaller systems that are owned by larger corporate utilities were significantly more likely to comply than the small systems that were either independent, private or municipal systems.

Should systems be consolidated?

“Yes,” said Joseph Fiordaliso, president of the state Board of Public Utilities. “I don’t want to put anybody out of business, don’t misunderstand what I’m saying. But I think the customer would be served better if a lot of these smaller companies — these ma and pop ones, in particular — could be absorbed by the larger companies.”

One apparently retarded Republican legislator, apparently unaware of DEP’s admission of lack of effective oversight, complained that there was too much oversight:

Another lawmaker suggested that the level of inspections required under the act is daunting. Even signing off on the forms presents problems.

“Better not to sign a certification, than to sign one that’s not correct,” said Ocean County Republican Sen. Chris Connors. “Requiring every fire hydrant to be inspected, every valve to be inspected, some of which, we don’t even know where the locations are.”

Absurd. Now, to build on the “rain tax” slogan, we might see the “fire hydrant” excuse. Where do these assholes get his crap from?

While the Murphy BPU pushes privatization, the Murphy DEP is in no hurry and in complete denial:

Other lawmakers pushed for tougher fines and for a single, transparent clearinghouse for the compiled data.

The effort is still a work in progress, according to the DEP.

“We’re looking at those water quality rules to see if we can make them stronger,” said Deputy Commissioner Debbie Mans. “Because that is the standard, the criteria that we’re looking for, that reaches someone’s house.”

I can’t tell you how many times I’ve given reporters great stories and they not only fail to write them, but that failure allows the entire story to be twisted, away from real solutions and towards things that will make current problems even worse, like privatization.

In fact, when I was a policy advisory to DEP Commissioner Brad Campbell (2002-2005), this was a conscious media manipulation strategy. Campbell directed the press office to advise him whenever a reporter was researching a story. He would then personally call this reporter to either spin the story to make DEP look good (instead of bad), or to divert the reporter to another story. Often he would pre-empt the bad news coverage by issuing a press release that made DEP look like a leader instead of a laggard, e.g. “DEP moves to…”.  It worked 95% of the time. Reporters are so easy to dupe, they are so eager for access and so lazy and flat out ignorant of science and regulatory reality.

Shame on all involved.

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