Is The Legislature’s Attempt to Dedicate Natural Resource Damage Funds A Trojan Horse?

November 7th, 2016 No comments

Poison Pill Cap On DEP Funds Would Cripple NRD Program

No Private Law Firm or Consultant Would Accept a 5% Cap

[Updated below with Notes and a Treachery Alert]

During the Whitman Administration, the business community strongly and successfully opposed the use of Natural Resource Damage (NRD) settlement revenues for the purchase of open space with this harsh rhetoric:

We refuse to be the Governor’s ATM to fund her million acre open space goal.(1)

During the McGreevey Administration, DEP Commissioner Campbell ramped up a moribund DEP NRD program – a much feared “sleeping giant” – including the use of hired private legal counsel. The “sleeping giant” had awakened.(2)

In response, the business community again went into high gear opposition mode, calling Campbell’s effort a “crusade” and the private outside law firm a “bounty hunter” that would “shake down” and “hold NJ businesses hostage” and filing a lawsuit to block it:

An industry coalition filed suit in March 2004, against the state of New Jersey opposing highly criticized tactics, including the state’s use of a New Orleans-based firm known for representing plaintiffs in toxic tort and related litigation, to recover money damages for natural resource claims. The action seeks to end the state’s plan to rely upon contingent fee attorney Allan Kanner to sue more than 80 companies for alleged damages to natural resources. The lawsuit highlights industry concerns over the aggressive program recently launched by the New Jersey Department of Environmental Protection (NJDEP) to recover for alleged losses and injuries resulting from natural resource damages (NRDs).

During the Corzine Administration, business lawyers and lobbyists had a field day in response to DEP Commissioner Lisa Jackson’s filing of over 120 NRD lawsuits to meet a legislatively imposed statute of limitations deadline those lobbyists secured and had thought would cripple the DEP NRD program.

And just a little over a year ago, the business community supported the Christie Administration’s sweetheart settlement with Exxon, for pennies on the dollar of an $8 billion NRD claim. The business community quietly applauded as Gov. Christie used NRD settlement revenues to close budget shortfalls created, in part, by Christie’s $5 billion in corporate tax breaks.

So, the business community is fully aware of the multibillion stakes of the NRD program and has a long track record of aggressive lobbying on NRD issues, especially attempts to use NRD funds for the popular Open Space program.

Their concerns are valid: public desire to preserve open space and scarce resources to fund purchases of open space create enormous pressure. An NRD honeypot for open space at DEP could result in a dramatic increase in the business community’s NRD liability.

But last week, business lobbyists were curiously silent when the Senate Environment Committee revived a measure to Constitutionally dedicate DEP NRD revenues.

What explains the lack of opposition by the business community?

So, with that NRD history in mind, we ask: are voters about to be duped again by environmentalists’ efforts to dedicate funds to open space?

Recall that in 2014, the Keep It Green coalition spent almost $1 million on a PR campaign to convince voters to approve an open space bond question. Voters were unaware that that measure diverted $32 million in previously dedicated State Parks maintenance funds, as well as about an additional $20 million from DEP clean water and toxic site cleanup programs.

This year, another Legislative Resolution to dedicate Natural Resource Damage (NRD) revenues for open space purchases is moving through the Legislature. The Senate released its version (SCR39) last Thursday (see NJ Spotlight coverage as well as my more critical set up story).

The initiative is a response to Gov. Christie’s diversion of over a hundred millions dollars of NRD funds into the General Fund and not for restoring natural resources.

The dedication of NRD revenue is sound policy, but the current draft of SCR39 has unrelated and ill advised “poison pill” provisions.

Just like the prior Open Space ballot question, the Resolution represents an attempt to divert revenue and defund critical DEP programs (recall that the KIG folks explicitly criticized DEP’s use of funds for professional staff and supported provisions to cap DEP revenues to punish them).

I warned the Senate sponsors that:

Passage of the SCR/ACR in its current form with the 5% cap would starve already under-resourced DEP programs and virtually guarantee that:1) there would never again be anything like a large scale complex Exxon case, 2) that the current small bore pennies on the dollar DEP NRD and enforcement programs would persist, 3) perhaps those programs would be further scaled back due to lack of adequate resources and 4) result in an inability to compensate private legal and technical consultants required to prosecute NRD cases.(3)

Additionally, first priority for dedicated use of these funds should be to restore the $32 million dedication to State Parks capital maintenance that was eliminated by the recent Open Space ballot approval.

Senate Environment Committee Chairman Bob Smith agreed that the Resolution was flawed and needed to be amended. Regardless, he released the Resolution from his Committee, and with no specific commitments on how or when it would be amended.

This would not be the first time that Smith provided major relief to corporate toxic polluters, while crippling DEP programs.

NJ’s environmental laws are stacked in favor of the polluters over DEP on the NRD issue. Smith knows that.

Keep in mind that Smith was the prime sponsor of the law known as the Site Remediation Reform Act that privatized the toxic site cleanup program. That law effectively put industry in charge of cleanup decisions, saving them billions of dollars in cleanup costs of more aggressive DEP and public oversight.

Because the NRD program is part of the DEP toxic site cleanup program, that same privatized cleanup law allows consultants hired by polluters to conduct the “baseline ecological assessments” that determine if and how badly natural resources may have been damaged by toxic pollution.

How many industry consultants will willingly put their corporate client’s neck in a billion dollar NRD noose?

Does anyone think that consultants that worked for Exxon would have documented $8 billion in NRD damages? Would have monetized $8 billion in natural resource injuries?

Yet that is exactly what NJ law and the DEP NRD program allow – private consultants that work for the responsible polluters conduct the “baseline ecological evaluation” that documents the existence and extent of any Natural Resource Injuries. That is the basis for the NRD calculation.

Also keep in mind that, despite all the political noise on the Christie Exxon NRD sweetheart deal, that the Legislature held no oversight hearings of the DEP’s NRD program.

Despite the testimony of the NJ Attorney General in the Exxon case that he reached the Exxon settlement instead off litigating the case due to substantial litigation risk:

The state “knows it has a weak legal hand,” making it reluctant to push too hard and more willing to settle, Wolfe said, adding that Exxon’s lawyers are “sharp enough to know this” too.

“There’s this wink and a nod going on where the DEP is saying, ‘We won’t squeeze you too hard if you just come to the table and settle,’” Wolfe said, adding that it’s been “a quiet little dance for 10 years,” with the state knowing it can’t get more than pennies on the dollar.

In response to that litigation risk, the Legislature made no changes in law and held no hearings on legal loopholes that give corproate polluters huge legal leverage over DEP.

Despite NJ court decisions that dismissed DEP NRD legal claims due to the failure of DEP to promulgate NRD regulations, and DEP’s own commitment to a Judge to adopt such regulations, the Legislature held no oversight hearings or passed any laws to mandate that DEP adopt those NRD regulations.

Finally, the Legislature repealed DEP’s authority to adopt “ecological standards” that would strengthen DEP’s scientific and legal hand in enforcement of NRD claims.

With all this pro-polluter legislative damage, unless Senator Smith amends SCR39 on the Senate floor BEFORE it gets considered by the Assembly Committee, I can only assume that the SCR is a Trojan horse and that the environmental groups supporting it are clueless useful idiots.

Notes:

1) I think that was Jim Sinclair, NJ Business and Industry Assc.’s line, but it could have been Hal Bozarth, the Chamber of Commerce or the Petroleum Council – there was consensus within the business community “murderers row” on this point.

2) I am not naive – Campbell’s bark was a lot bigger than his bite on NRD. Campbell also cut dirty NRD deals for pennies on the dollar, and I criticized those deals publicly at the time (e.g. over a decade ago, (Bergen Record 7/12/05)):

“The department had a very strong litigation hand,” said Bill Wolfe, a former aide to Campbell who now heads the state chapter of Public Employees for Environmental Responsibility. “This is a paltry settlement given the magnitude of the damage that the company has imposed on the taxpayers, the environment and the public health of the state. They’re one of the largest polluters in the world.”

3) I am not advocating outsourcing or privatization of NRD work. Ideally, DEP should have expert professionals on staff – but they don’t and therefore. must rely on private consultants to fill the void.

Treachery Alert

The current version of SCR 39 passed the full Senate last session. It included the 5% cap (poison pill) and did not include a “nexus” provision, yet the LCV and conservation groups supported it.

But last week in testimony before the Senate Environment Committee – coming only after I exposed their treachery and then explained the significance of the 5% cap, especially regarding private legal and technical consultants – the same conservationists tripped all over themselves supporting a nexus and warning about the 5% DEP cap and role of private consultants.

They are self interested and dangerously incompetent.

For their 40 gold coins for their pet projects and open space, they threw the “nexus” (local communities) and DEP under the bus.

Just like they did for State Parks.

 

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Delaware River Flow Dips Below Drought Threshold

November 5th, 2016 No comments

Meanwhile, watershed groups are AWOL, misfocused on voluntary feel good measures

“River Friendly” seriously distorts the science and policy picture

Source: USGS (11/5/16)

Source: USGS (11/5/16)

Drought conditions continue to worsen in the Delaware watershed, while State officials on the NJ side of the river have virtually abandoned water supply planning and are systematically weakening water resource planning and regulatory protections.

One would think that these drought conditions and the Christie DEP’s policy, planning and regulatory rollbacks of water resource protections would spur alarm, and an aggressive pushback by environmental groups, especially local and regional watershed groups.

One would be wrong.

There is virtual silence on drought conditions and – at best – muted criticism of Christie DEP rollbacks (and the muted criticism ignores the Delaware, the drought and the role of climate change).

But the reality in the lower Delaware is even worse.

In addition to ignoring drought and Christie DEP systematic rollbacks to water resource planning and regulatory protections, lower Delaware managers and watershed groups are diverting attention from these critically important problems and instead focusing on voluntary, symbolic gesture, window dressing, feel good measures that have proven to be ineffective. Magical thinking.

Today, I received this email from the Lower Delaware Wild and Scenic River Management Council, calling my attention to this presentation:

7:05    Guest Speaker, Brittany Musolino of the Stony Brook Millstone Watershed Association, talking about the River Friendly Certification Program

“River-Friendly Certification Programs promote clean water and a healthy environment through voluntary action by individuals and institutions. To achieve these goals we work one-on-one with residents, businesses, golf courses and schools to improve land stewardship practices. The program works to reduce pollution, conserve water, restore habitat for wildlife and educate the public about becoming better environmental stewards.”

In response, I fired off this note to Richard Dodds, Chair:

Richard – perhaps you might want to get a speaker to brief you on rollbacks of regulatory protections for water quality and riparian areas on the Jersey side of the watershed.

I am very concerned that all your focus on “voluntary” “stewardship” and “corporate” efforts is seriously distorting the policy picture.

When will you get a speaker with a regulatory and planning focus?

Wolfe

In the midst of drought, climate catastrophe, and regulatory dismantling, the watershed groups want to work on voluntary measures with the major creators of the problems.

And they get huge Foundation financial support for this crap – Wm. Penn Foundation ponied up $35 million for this crap.

They are looking very foolish right now – will they change their ways?

Don’t hold your breath.

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Don’t Get Blinded By Pseudo-Science on Christie DEP Highlands Rollbacks

November 4th, 2016 No comments

She blinded me with science – and hit me with technology. ~~~ Thomas Dolby (listen)

Yesterday, the Senate Environment Committee held a hearing on the DEP’s proposed rollbacks to the Highlands Septic Density Standards (see set up post).

Chairman Smith seems to have a strategy, which I find an abdication of a defense of the Highlands Act.

Smith chose to limit testimony to what he called “science” and allowed only “invited guests” to testify. USGS testimony stayed within this narrow limitation, but NJ DEP, a Rutgers professor, and expert consultants ranged widely.

The Rutgers professor appeared to be oblivious to the goals and standards of the Highlands Act, the objectives and standards for the Preservation Area, and the legal and technical bases for the septic density standards. (He actually suggested NJ look at Rhode Island, where they have advanced septic systems that allow development on tiny lots – and along the coast! Was it sarcastic dark humor?) It was embarrassing. At that point, Ray Cantor of DEP – certainly no tree hugger – had to do damage control to explain the land use and ecological objectives of the Highlands Act (considering secondary and cumulative impacts of development) in order to limit dangerous testimony about site specific alternatives to DEP Highlands and recommended revisions to DEP’s “Chapter 199″ septic standards to consider advanced treatment systems for septics (a la Rhode Island). It is pretty amazing when Ray Cantor is championing Highlands protections to derail crazy engineering recommendations of a Rutgers professor. Maybe the Rutgers prof. should talk to Professor Lathrop and folks at CRSSA and ask the Pinelands Commission about that – their alternative design septic system policy has a high failure rate**.

However, the public record for the hearing will remain open for 2 weeks for written comments.

Quite a bit of the hearing focused on whether DEP and USGS’s use of data from the Private Well Testing Act (PWTA) was scientifically sound and appropriate.

PWTA data were available when NJ DEP derived and originally adopted the current septic density standards. However, due to bias, flaws, and limitations, the NJ DEP chose not use PWTA data for regulatory purposes and refused to incorporate the PWTA data into the dataset used to derive the current septic density standards.

For DEP now to use USGS to bring those contaminated PWTA data into the regulatory basis for weakening current standards is totally unacceptable scientific practice and it conflicts with the policies, standards and authorized regulatory basis of the Highlands Act.

More about the hearing in future posts – I wanted to get this letter to Smith ASAP, given seriously misleading testimony by NJ DEP and USGS.

Dear Chairman Smith:

Per your request during yesterday’s Senate Environment Committee’s hearing, I would like to submit the following documents for your information and incorporation in the record regarding the Legislature’s pending review of the NJ DEP’s proposed revisions to the Highlands “septic density standards” mandated by the Highlands Act.

1. USGS Data Quality Act complaint

As you may know, on May 18, 2016, Public Employees for Environmental Responsibility (PEER) filed a complaint with the USGS pursuant to the federal Data Quality Act regarding the USGS’s Highlands nitrate study.

The PEER complaint requests that the USGS withdraw the study, which forms the exclusive scientific basis of the NJ DEP rule proposal. The USGS review of this complaint is still pending. A decision is over-due under USGS policy, which provides a 90 day period to review Data Quality Act complaints.

The PEER complaint, which I wrote, goes into great detail regarding significant bias (geographical, statistical, and scientific), flaws, and limitations in the USGS study.

In addition to those scientific and technical flaws, the USGS methodology is in blatant conflict with the Legislative standards established by the Highlands Act that govern regulatory derivation of the DEP’s “septic density standards”. Most basically, the septic density standards apply only in the Preservation Area. In contrast, USGS relied on data from the Planning Area.

The Legislature, in the Highlands Act, established a non-degradation water quality policy as well as specified with precision – and thereby limited – the factors DEP could consider in promulgating “septic density standards”.

NJ DEP septic density standards are authorized by the Highlands Act in order to prevent the degradation of water quality. The applicable provision provides:

“… a septic system density standard established at a level to prevent the degradation of water quality, or to require the restoration of water quality, and to protect ecological uses from individual, secondary, and cumulative impacts, in consideration of deep aquifer recharge available for dilution”18 (Emphasis added)

The current septic density standards DEP adopted were derived based on an ambient groundwater nitrate concentration of 0.21 mg/L for forested lands in the Preservation Area. This concentration was found to be the “natural condition” or natural background concentration.

In contrast, the USGS study and NJ DEP proposed revisions are based explicitly on groundwater degraded by anthropogenic loadings of nitrogen from septics and agriculture practices. This methodology conflicts with the legislative standard in the Highlands Act to prevent degradation of surface and groundwater.

The USGS attempted to derive the median value of nitrate in groundwater in the Preservation Area, based on samples taken outside the Preservation Area. That is simply not authorized by and conflicts with the Highlands Act.

I would like to submit the PEER complaint for the record, see:

http://www.peer.org/assets/docs/nj/5_18_16_Highlands-USGS_DQA_complaint.pdf

2. NJ DEP Private Well Testing Act Reports

There were serious substantive omissions in the testimony by NJ DEP and USGS regarding the Private Well Testing Act (PWTA) data.

These omissions reflect bias and may lead to misleading interpretations of the science by Legislators.

Accordingly, I would like to submit a Report by NJ DEP’s Division of Science and Research and two other official program Reports on the PWTA data.

The PEER USGS complaint goes into some detail, based on NJ DEP’s now PWTA Reports, about why that data is flawed, limited, and inappropriate for purposes of deriving the “septic density standards”.

The NJDEP prepared three distinct Reports on the PWTA data, all of which documented serious limitations in PWTA data.

Specifically, DEP issued a preliminary PWTA Report in 2004, see especially page 6 for “limitations of the data”:

http://www.nj.gov/dep/watersupply/pwta/pdf/pwta_report.pdf

NJ DEP issued a more detailed PWTA Report in July 2008The DEP’s 2008 Private Well Testing Act Report warns about lack of QA/QC and other limitations and flaws in the PWTA data (see page 5, “Limitations of the Data”)

http://www.nj.gov/dep/watersupply/pwta/pdf/pwta_report_final.pdf

Analysis and Data Reporting – The PWTA Program testing data are submitted electronically and are automatically entered into the database without any quality control or quality assurance reviews. It is assumed that the certified laboratory properly met all required protocols and the data are accurate. The PWTA Program relies on the reporting laboratory to catch and correct any data entry errors.

In addition to the NJ DEP’s programmatic PWTA Reports released in 2004 and 2008, an April 2009 Report by the DEP’s Division of Science and Research, titled: The New Jersey Private Well Testing Act: An Overview (April 2009) goes into great detail about flaws in PWTA data. The DEP Report found:  (boldface emphases are mine):

http://www.state.nj.us/dep/dsr/research/pwta-overview.pdf

Data limitations

The quality of NJDEP’s PWTA database is adversely affected to an unknown extent by several factors. There is no agency responsible for verifying that the data from all real estate transactions (sales and leases) subject to the PWTA are reported to the NJDEP. Therefore, some data is likely missing. Some data that were initially  rejected by the E2/COMPASS quality control system were not resubmitted, despite NJDEP efforts to have these data resubmitted. One laboratory failed to submit data over a 3-year period, although this is believed to be an isolated case.

There are errors in the reported data as well. The PWTA relies on the sampling and testing laboratories for proper conduct of sampling, testing, and data accuracy. As previously stated, all laboratories performing PWTA analysis must be certified. That is, they are required to successfully complete periodic performance evaluations. Certification presumably reduces sampling and analysis errors. Nevertheless, there is no ongoing quality control of the data, either following sample collection, during or after testing, or in reporting results to the client or during electronic entry to the NJDEP databaseIt is not known how many errors exist in the non-location aspects of the data. As one example, it is suspected that, contrary to PWTA regulations, collection of lead samples from unflushed water tanks or spigots is the primary reason why many elevated lead results were reported. NJDEP personnel periodically evaluate the data and, through contact with the submitting laboratories, correct data submissions. This process also reduces the amount of errors.

There is no GPS certification program for samplers who collect GPS coordinate information. As a result, there were numerous GPS errors, especially during the first year of sample collection. For example, many GPS coordinates were not located in the correct municipality let alone the correct property. Because much of the data analysis relied on accurate well location information, the NJDEP spent approximately one man-year (full time equivalent) correcting well location errors, including address, municipality, county, block and lot and GPS coordinate information for wells sampled from PWTA inception (September 2002) through April 5, 2007. This was done using an electronic, subscription-based, tax parcel website, eTaxmaps.com, to correct block and lot as well as address information errors. Once those errors were corrected, the data for each municipality was organized by block and lot to look for GPS errors. GPS errors were corrected using ArcMap® 9.2 software (ESRI Inc., Redlands, CA) and the following data layers: county and municipal boundaries, county tax parcel boundaries (available for 17 of the 21 counties), NJ roads (from Tele Atlas North America, Inc., v 9.1, April, 2007), and 2002 high-resolution infrared orthophotography (1 foot Ground Resolution Distance). For repeat samples of the same well, identical GPS coordinates were offset 1 foot to distinguish these samples on high resolution maps and to enable certain geospatial statistical analyses. A copy of the database with the correct well location information was created in Microsoft Access®. Because of the extensive location errors, the NJDEP subsequently provided GPS training to all PWTA-certified laboratories.

The PWTA requires just one sample and test during a real estate transaction. No confirmatory sampling and testing that might verify the accuracy of the results from the initial sample is required. However, as of April 5, 2007, 9 % of the tested wells have been tested more than once due to multiple real estate transactions and other reasons.

Wells may be contaminated with pathogens or chemicals that were not among the tested parameters. The list of tested parameters was selected based on known or potential broad-based contamination concerns in NJ, but the list is by no means comprehensive in terms of contaminants that have been identified in ground water in NJ or elsewhere. However, the presence of some of the parameters in excess of the standard may be considered as an indicator of the possible presence of other non-tested contaminants.

For example, if fecal coliform or E. coli are detected, the well is considered to be contaminated with fecal wastes from either humans or animals. Such wastes may include one or more of a variety of potentially pathogenic microorganisms such as Salmonella, Shigella, enteric viruses, Giardia or Cryptosporidium. The presence of VOCs may indicate a higher likelihood that some other man-made chemical contaminants may be present.

Information on well depth was not collected in the PWTA database in most cases. This information would have been helpful to more accurately assess the impact of specific geologic formations on ground water quality. Well construction information, specifically permit application information and, in some cases, well drilling record information, is available for many of the wells in NJDEP’s other electronic databases (NJEMS and Hiview). These databases include well identification numbers and well depth information, but it was not possible to transfer this information into the PWTA database (over 50,000 wells) on a well-by-well basis.

Having the well drilling record information or at least the permit application information for all wells rather than for just 5 % in the PWTA database would have assisted data analysis in many cases where there were multiple data records for the same address, block and lot. In some of these cases, it was not certain whether a single well was tested more than once, or there was more than one well at that location, with each well tested just once.

The PWTA addresses NJ ground water quality but not quantity concerns. However, statewide water quantity concerns are addressed through other NJDEP Division of Water Supply programs and through implementation of the NJ Statewide Water Supply Master Plan.

In addition to the reasons set forth in the PEER USGS complaint, the PWTA data are inherently biased, flawed, and limited, as well as an ultra vires basis and inappropriate for use in deriving Highlands Preservation Area septic density standards.

The PWTA data were available when NJ DEP derived and adopted the current septic density standards. However, due to bias, flaws, and limitations, the NJ DEP chose not to incorporate the PWTA data into the dataset used to derive the current septic density standards.

For DEP now to use USGS to bring those contaminated PWTA data into the regulatory basis for weakening current standards is totally unacceptable scientific practice and it conflicts with the policies, standards and authorized regulatory basis of the Highlands Act.

I appreciate your consideration of this information and incorporation in the hearing record.

I will be submitting additional information and would be glad to respond to any questions.

Respectfully,

** revised from first draft – the program was not “withdrawn”

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Battle On Christie DEP Highlands Clean Water Rollback Shifts To Legislature

November 2nd, 2016 No comments

Will Sweeney – Christie-crats Finally Pull The Veto Trigger?

Tomorrow (11/3/16), the Senate Environment Committee will take testimony “from invited guests” on the Christie DEP’s proposed rollback of the Highlands Preservation Area “septic density standard”. The Committee agenda reads:

 The committee will receive testimony from invited guests on the issues of chromium-6 in drinking water and the Department of Environmental Protection’s proposed changes to the septic system density standards for the Highlands Region

The Christie DEP “by invitation only” policy is expanded to the Legislature. Critics need not apply.

I drafted the underlying legislative provision in the Highlands Act (i.e. “deep aquifer recharge”), and was directly involved while at DEP and later as a consultant to environmental groups in developing the implementing regulation (i.e. “septic density standards”). We warned about exactly this rollback over 6 years ago. We filed a complaint with the US Geological Survey to block the rule, and I’ve written in some detail about the proposal several times, see this and this and this. Oh well. We didn’t get an invite on the chromium issue either.

The DEP Highlands rollback proposal was published in the May 2, 2016 NJ Register. The public comment period is closed and DEP is now considering public comments. Given the Christie DEP’s prior non-response to public comments, we expect that they are working on an adoption document as we speak.

The hearing is basically a political shot across the bow by Chairman Bob Smith – a threat of a legislative veto. Under NJ’s Constitution, the Legislature may veto a State Agency regulation by simple majority votes in both Houses upon finding it “inconsistent with legislative intent”. The Governor is powerless to stop this kind of legislative veto (Democrats have majorities in both Houses).

But, given Smith’s prior collapses – under orders from Senate President Sweeney – on prior legislative vetoes of DEP rules, we don’t have a lot of confidence that this is anything more than another dog and pony show and not a serious effort to legislatively veto the DEP proposal.

There is other evidence that the Highlands challenge is not a priority or a locked in political commitment with Senate Democrats by Smith: the Committee agenda is jam packed with other controversial major issues, thereby diminishing the focus on the Highlands, which deserve a stand alone hearing.

However, since those prior collapses by Smith and Senate Democrats, the politics have changed – and the Highlands Act is perhaps Senator Smith’s greatest legislative achievement (I hate the word “legacy”). So I assume Smith would put up a stronger fight to push back on Sweeney and defend the integrity of the Highlands Act from Christie DEP rollbacks.

The policy challenge is very clear: By the Governor’s own words (i.e. Act was “based on a lie”), the Christie Administration is seeking to compensate property owners whose land equity was reduced by the Highlands Act. That is consistent with the intent of the Highlands Act and a policy objective that is mainstream in Trenton.

But they are using a rollback in clean water protections to do so.

That is a radical policy approach that directly contradicts the both the letter and intent of the Highlands Act, and thus is clearly “inconsistent with legislative intent” (as I’ve written).

In terms of politics, since the Senate folded on the Legislative veto of the Flood Hazard rules, Senate President Sweeney threw in the towel for the 2017 Governor’s race.

Given Governor Christie’s downfall, Sweeney’s “bi-partisan” alliance with the Governor is also a huge threat to his continued Senate leadership in the next Administration, as “Christie-crats” face challenges from progressive Democrats.

So, a more aggressive posture by Smith and a weakened Senate President Sweeney – and a less aggressive challenge by the NJ Builders Assc., Chamber of Commerce, NJBIA and trade unions – may bode well for a better outcome than the collapse on the Flood Hazard Rules.

We’ll be following this one and keep you posted – “invited guest” or not.

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Will Legislators Learn From Disastrous Christie Exxon NRD Deal And Open Space Diversion of Parks Funding?

November 1st, 2016 No comments

Restore State Parks Maintenance Cuts Made By Open Space Ballot Approval

Don’t Starve DEP Natural Resource and Enforcement Programs

Assure that communities are compensated for pollution damages

[Update and corrections below]

A very important Senate Concurrent Resolution (SCR 39) will be heard by the Senate Environment Committee on Thursday.

SCR 39 would

Amend [the] Constitution to dedicate all State moneys received from settlements and awards in cases of environmental contamination for certain environmental purposes.

The SCR is a response to the Christie Administration’s sweetheart settlement with Exxon for Natural Resource Damages (NRD).

The Christie DEP settled for pennies on the dollar ($225 million) of an $8 billion NRD claim. Adding insult to injury, Governor Christie then diverted the majority of the funds to close budget revenue shortfalls created by his $5 billion in corporate tax cuts.

Few people are aware of the fact that DEP settling NRD claims for pennies on the dollar was the rule BEFORE Exxon. Exxon was no exception.

The DEP’s NRD program is weak because it lacks policy direction, is captured and controlled by the privatized site remediation program, lacks technical expertise, lacks adequate staff, and lacks enforceable regulations.

Passage and voter approval of SCR 39 would prevent the diversion of NRD settlement funds to the General Fund – but it would not address and in fact exacerbates serious underlying flaws that led to the Exxon disaster.

It would actually make them worse and let even more large corporate polluters off the hook, as an underfunded and downsized DEP were forced to settle for pennies on the dollar.

Additionally, the SCR 39 provides opportunities to:

1) restore huge cuts to State Parks maintenance, water resources and toxic site cleanup made by voters’ approval of the Open Space ballot question; and

2) assure that locally impacted communities are compensated.

Here is my letter to the sponsors asking for amendments – we should make a full court press to assure that prior cuts, particularly to State Parks, are fully restored and that DEP’s NRD and enforcement programs are not further starved by an arbitrary 5% cap on administrative costs. No private law firm would accept such a cap on compensation for settlement work.

[Update: could the 5% cap on DEP be a Trojan Horse, designed to starve the beast? Retaliation for this? Smith was prime sponsor for privatization of toxic site cleanup (Site Remediation Reform Act), so I would not be surprised if he’s again using the enviro’s as useful idiots:

From: “Bill” <bill_wolfe@comcast.net>
To: “senbsmith” <senbsmith@njleg.org>, “sengreenstein” <sengreenstein@njleg.org>
Cc: senlesniak@njleg.org
Sent: Tuesday, November 1, 2016 11:47:02 AM
Subject: SCR 39 – clarifications and amendments

Dear Chairman Smith and Senators Greenstein and Lesniak:
Thank you for sponsoring and posting SCR 39 for Committee hearing. SCR 36 would:

Amends Constitution to dedicate all State moneys received from settlements and awards in cases of environmental contamination for certain environmental purposes. ”

I write to suggest amendments to improve the bill and clarify certain issues to prevent unintended consequences.

1. Administrative costs

The SCR would limit the appropriations to State agencies to 5% for administrative costs.

One of the many issues to emerge from the recent Christie DEP Exxon NRD Settlement is that enforcement of these cases is not cheap.

Current DEP staffing levels for the NRD program are not adequate to manage the large backlog of NRD cases. In addition, DEP lacks in house scientific and technical expertise to effectively prosecute many complex contested cases. As a result, DEP often must hire contract consultant experts – or settle for paltry pennies on the dollar settlements.

DEP also lacks promulgated NRD regulations to bolster the legal enforceability of the NRD program (NJ Courts have rejected DEP NRD enforcement efforts due to lack of adopted regulations).

The Kanner law firm that managed the Exxon case – and their expert consultants – were compensated at far more than 5% of the settlement proceeds.

No private law firm in NJ would accept 5% of a civil settlement agreement as adequate compensation.

Finally, DEP and the Department of Law seek “cost recovery” actions to compensate the State for costs incurred as a result of the discharge of hazardous substance and/or natural resource injury. Those efforts must not be limited by the 5% administrative cost cap.

To address these kinds of issues, I suggest the following amendments:

a) define “administrative costs” to exclude DEP professionals and technical and legal consultants.

b) specifically exclude DEP and DoL “cost recovery” efforts from the SCR – or dedicate them to State agencies.

Passage of the SCR in its current form with the 5% cap would starve already under-resourced DEP programs and virtually guarantee that there would never again be anything like a large scale complex Exxon case, that the current limited DEP NRD and enforcement programs would persist, and perhaps they would be further scaled back due to lack of adequate resources.

2. Use of the funds

The first priority of the SCR should be to restore fully the previously CBT dedicated funds diverted by the Open Space Ballot approval, specifically for State parks maintenance, water resources, and hazards site remediation. This money should come off the top.

The public never supported and has been outraged to learn that these funds were diverted by the Open Space Question.

The second priority should be to allocate 50% of remaining revenues (after the above restoration) to the nearby communities that suffered the harms to natural resources and/or public health. This could b done via a requirement for a geographic regional nexus.

Finally, the remaining 50% would be allocated according to the current version, i.e.

“for any of the purposes enumerated in Article VIII, Section II, paragraph 6 of the State Constitution, “

3. Expand the scope to include all enforcement revenues

The SCR is not precise regarding the settlements and revenues covered. For example, would a Water Pollution Control Act or Freshwater Wetlands Act settlement be included within the scope of the SCR? It appears not.

To promote the policy objectives of the SCR, all DEP enforcement revenues could be dedicated.

In conclusion, please keep in mind that the dedication of NRD settlement revenues was included in the introduced version of the Open Space SCR. Mysteriously, that provision was deleted instead of being expanded to include all enforcement and settlement revenues.

I appreciate your consideration of these amendments and would be glad to respond to your questions.

Respectfully,

Bill Wolfe

[Update – readers corrected a typo (wrong SCR #)and two errors – My poor writing created the mistaken impression that the Exxon $225 million settlement proceeds had been diverted into the budget already. Actually, the money has not been conveyed to the State and incorporated in the budget due to litigation. What Christie did was cap the use of settlement money for environmental purposes at $50 million and divert the rest to the General Fund. The Passaic settlement was involved as well, which I failed to mention.

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