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McCabe says she’s “unfamiliar” with DEP C1 Exceptional Waters Stream Buffer Program

Agrees that 1,300 new housing units in the Highlands is “minuscule”

A Question of Balance?

Call me (call me) on the line
Call me, call me any, anytime.  ~~~ Blondie

Like Obama’s “all of the above” energy policy … Murphy will say he’s pursuing a “balanced approach”. ~~~ Bill Wolfe (1/31/18)

Balance is my mantra. ~~~ Murphy DEP Commissioner Catherine McCabe, confirmation hearing (5/14/18)

[Update: 5/23/18 – the press finally got it right – the narrative is framed:

• Dismayed environmentalists say Murphy borrowing from Christie’s playbook ~~~ end update]

Acting DEP Commissioner Catherine McCabe faced her confirmation hearing last Monday. Overall, we viewed it as a huge disappointment and outlined some of our concerns. 

We are not alone. The Record also ran a story highly critical of McCabe’s response to the Dupont Pompton Lakes site, see: Phil Murphy says DuPont pollution in Pompton Lakes still under review

[Update: the cave on Murphy’s commitment to end the bear hunt is another example, see:  Acting DEP chief: Bear hunt is on for this fall. And so is this: Just $50M From NJ’s Exxon Settlement Will Go to the Dept. of Environmental Protection, which generated a “Thumbs down” by Record editorial~~~ end update]

In what I plan to write more about, today’s post drills down on 2 important issues McCabe faced questions on and spoke to: 1) how her DEP would address the Christie DEP Highlands rule and 2) the Category One (C1) exceptional waters stream buffer program.

I found it stunning that McCabe challenged Environment Committee Chairman Bob Smith (D) on his criticism of the Christie DEP Highlands septic density rule – essentially defending the Christie DEP – while making concessions to fact free attacks by conservative Republican Senator Cardinale (R), who claimed that a specific DEP staffer classified a “mud puddle” as a navigable water. He said this same DEP staffer found wood turtle on a development site, ultimately forcing the proposed development to relocate to NY State.

But why was McCabe unfamiliar with and not willing to defend DEP’s C1 buffer program, while at the same time familiar with and challenging critics of Christie’s Highland septic density rollback?

I)   “Mud puddle” – “Wood turtle”:  McCabe undermines her own staff – invites improper political intervention in DEP regulatory decisions

Senator Cardinale’s claims were egregious fact free ideological attacks that demanded pushback – but McCabe rolled over.

And in the course of rolling over, she echoed Christie DEP policy and practice about expediting permits and streamlining reviews through the Office of Permit Coordination (an Office established by the Whitman “Open For Business” Administration).

Still, Cardinale pressed on. After presenting his “mud puddle as a navigable waterway” case he asked:

If you have employees in your department making those types of decisions, and it came to your attention, what would you do?

McCabe did not defend the DEP, the wetlands rules, the integrity of the regulatory process, or her own staff. Instead, she replied:

I would go out and look at the site and talk to not only our staff members but talk to the people who are seeking the permit to find out what the situation really is.

Get that?

The developer’s perspective is “what the situation really is”. 

McCabe also said she would conduct a site visit. That is a completely inappropriate role for the Commissioner, as we’ve written about McCabe’s wetlands enforcement tour with Senator Sweeney. Additionally, the DEP land use programs issues thousands of permits every year – she could not possibly conduct site visits at the hundreds of sites that generate disputes between developers and DEP staff.

Still not satisfied, Cardinale continued his assault.

He then outlined a case, with the same company, 5 years later, where the same DEP staffer documented wood turtle on site and as a result the company left NJ for NY.  Cardinale droned on and asked:

Do you believe there shouldn’t be some way in the Department to circumvent the lengthy periods of time it takes to resolve issues such as that so that we do not have an un-neccessary movement of people out of the state. And this is not just residents, but the jobs, into NY state.

Instead of engaging that debate and defending her staff, McCabe again folded. Here’s what she said:

If  you hear of a situation like that developing again, where there is a question of a business is leaving NJ, because it is having a problem with out permitting process, I encourage you to bring it to my attention so I can make sure it is resolved as quickly as possible.

Is McCabe a Blondie fan? (call me!)

So McCabe is no only going to conduct field visits, she is going to be answering the phone and conducting hundreds of quasi-judicial informal hearings on contested permits, based on political intervention and what is legally called “ex parte communications”. (see the Blondie song above)

I wrote about why that was a totally inappropriate approach, in response to McCabe’s wetlands enforcement tour with Senate President Sweeney.

Cardinale, his pound of flesh in hand, finally relented: “I thank you very much for that”.

McCabe was just awful, showing no spine whatsoever. Cardinale is a notorious hack. McCabe should pushed back, not groveled. I have locked horns with him, after he called Bergen County C1 streams “drainage ditches”, see:

• Senator Cardinale Walks Back “Drainage Ditch” Remark
• Senator Cardinale Calls NJ Streams “Drainage Ditches”

II)   McCabe Says She Is Unfamiliar with DEP’s Category One Exceptional Quality Waters Program(C1)

Cardinale then moved from mud puddles and wood turtles, to an attack on the DEP’s Category One (C1) stream buffer program.

After he summarized his understanding of the C1 buffer program, he complained that he saw numerous development projects that were building within 300 feet of a stream. So Cardinale asked:

Can you clarify for me what this 300 hundred feet really means?

McCabe responded:

I am not yet familiar with NJ’s stream buffer rule... I don’t know what particular circumstances it would apply to and what could explain  the buildings that you’re seeing, but if there is a particular situation you would like me to look into, I would put that on the top of my pile and learn it quickly.

More groveling.

The C1 buffer program was a cornerstone of Democratic Governor McGreevey’s environmental legacy, second only to the Highlands Act, which was based on the same legal anti-degradation policy under the Clean Water Act.

It is one of DEP’s most powerful regulatory tools to protect water quality and restrict development, It is one of the strongest stream buffer programs in the Country.

It was a target of the Christie DEP for rollback and the subject of extreme controversy, including a legislative veto of Christie DEP rules that weakened the C1 program (a final veto was derailed by a Sweeney deal. Could dodging Sweeney be why McCabe claims she is unfamiliar?)

For an Acting DEP Commissioner, more than 4 months into her tenure, to still be “unfamiliar” with this program is outrageous and totally unacceptable.

Actually, I simply don’t believe McCabe is not familiar with the C1 program. The C1 program was mentioned in Transition, it is critical to controversial pipeline decisions, and I sent her information on the C1 buffer program months ago. Maybe that’s why she’s since blocked my email.

It does not pass the straight face test that McCabe is unfamiliar with all this. If she really is, she is grossly incompetent and should not be confirmed by the Senate.

McCabe not only failed to defend the DEP C1 program and push back against criticism from a conservative Republican’s attacks, she then defended the Christie DEP’s Highlands septic density rule and pushed back against Chairman Smith.

III)  Highlands

Senator Smith, Chairman of the Environment Committee, led the charge to oppose the Christie DEP rollback of the Highlands Septic Density Standard, which resulted in a rare legislative veto of that rollback as “inconsistent with legislative intent” to prevent the degradation of high quality Highlands waters.

Smith asked McCabe about the status of the Christie Septic Density rule.

Remarkably, McCabe defended the Christie DEP rule, challenged Smith’s premises, downplayed the impact of the rollback, and pledged to re-propose another septic density rule!

Senator Smith:

In the old administration, there was an effort to change the Highlands septic density rules. The legislature .. invalidated those rules. ..Is there any plan to do anything?

McCabe replied:

I don’t think we need to do anything…. We’re back at the drawing board. I’ve taken a look at the science myself.

Frankly, I think what happened was failure to communicate between our scientists and the legislature.

Whaaaaaat? Failure to communicate? Are you kidding me? It was a fucking rollback, you idiot. Was she watching the movie classic “Cool Hand Luke” the night before? Failure to communicate indeed!

McCabe went even further:

I have asked to have the model re-reun so that we can use only data that pre-dates the time [passage] of the Act. What happened apparently was that they changed the result where the standard would be based on adding in a lot of new data. Now that’s good science… 

No, it is NOT good science. It’s statistical manipulation. It was BAD science because the data did not represent actual background groundwater water quality.

McCabe continued:

I think that what we’ll do going forward and get the results from the rerun is that we’ll show you how that works out and we’re happy to work with the legislature on a path forward. But I have learned from our scientists is that people had a a misimpression of just how much of a difference that change made. It did not change all that much on the ground.

Smith interjected:

Minuscule

McCabe agreed

Yeah.

Smith

1,300 more homes

 Do you think 1,300 more homes disturbing an unknown acreage of land in the Highlands Preservation Area is “minuscule”?

Shame on McCabe.

As we noted:

There was nothing wrong with the existing rule, legally or scientifically or as a matter of public policy. The Christie DEP decided to roll it back based on settlement of a lawsuit filed by the Farm Bureau.

McCabe is taking the same legal and scientific position as the Christie DEP in regard to the Farm Bureau lawsuit.

Instead, she needs to work with the AG and petition the Court revoke the Christie DEP settlement agreement with the  Farm Bureau and defend the existing rule. There is no need to re-propose any new rule.

Beware folks – a wolf in sheep’s clothing is among us.

(next – Senator Sarlo seeks “balance” and Sen. Dougherty exposes risks of unregulated prescription drugs in water supply.)

McCabe dodged policy issues, while defending controversial Christie DEP rollbacks

The Senate Judiciary Committee finally gave Gov. Murphy’s Acting DEP Commissioner Catherine McCabe a confirmation hearing on Monday.

At best, it was disappointing, both in what McCabe said and failed to say. Aside from RGGI and vague empty rhetoric, McCabe made no commitments to new policy initiatives and she not only failed to criticize the Christie DEP policy, she actually defended it (see examples below) and pushed back to rebut Senate questions that were critical of the Christie DEP!  (i.e. enforcement data, Highlands septic density, etc).

McCabe actually supported “customer service” (Bob Martin’s “culture change” mantra), stressed the need to expedite permits, praised the Office of permit coordination that provides consulting services to regulated industries, and denied that the Office of climate change was eliminated (Fact check: it was eliminated. And it was sent from the Commissioner’s office to Siberia, burried in the air program. But not only access to the Commissioner was eliminated. The Office’s name and mission were changed as well in a way that eliminated climate change. We know climate experts who were forced out or have retired and not been replaced.)

The Senate and McCabe both ignored the fact that Gov. Christie’s horrible “regulatory relief”, “federal consistency”, industry pre-proposal review & cost-benefit (Ex. Order #2); “red tape” (Ex. Order #3); and “unfunded mandates” (Ex. Order #4) and privatization policies are still in effect. When will Gov. Murphy repeal them? Stunning.

In addition to blaming the victims for not installing vapor recovery systems, McCabe flat out lied on the Dupont Pompton Lakes site by equating RCRA Corrective Action to Superfund. When was the last time a Congressman toured or news reported on a RCRA site? Exposing McCabe’s lies about equating RCRA Corrective Action to Superfund was the Record’s “toxic secret” series which included a video interview with McCabe’s former boss, EPA R2 Admin Judy Enck. Enck said she SUPPORTED Superfund. If RCRA and Superfund are equivalent, why did Enck – like many people who live in Pompton Lakes – want Superfund?

Despite this remarkable testimony, McCabe still generated exactly the positive news headlines the Gov. and McCabe sought: e.g. see the NJ Spotlight story: ACTING DEP COMMISSIONER MCCABE SAILS THROUGH CONFIRMATION HEARING.

We have a radically different assessment of that hearing than NJ Spotlight’s superficial wet kiss.

And we will be specific. Interested readers can listen themselves to verify all this at the Legislature’s website (click on Archived Proceedings: View or listen to prior proceedings).

Veteran Spotlight reporter Tom Johnson wrote that McCabe was “peppered with questions issues left unresolved from the prior administration”, but failed to report what McCabe replied to those questions. Below we fill some of those gaps in reporting.

Prior to the confirmation hearing, McCabe used a slogan to tout a “new era in environmental protection” under the Murphy administration and her DEP leadership. Sycophantic NJ ENGO’s, who endorsed Gov. Murphy, drank that Kool-aid.

So, the stage was set for exactly the Kabuki dance McCabe delivered and NJ Spotlight reported.

McCabe opened the hearing with a strong statement of her laudable qualifications for the job. She seemed to think that the Senate’s “advise and consent” confirmation power was limited in scope to qualifications and that policy oversight was beyond the scope of the hearing.

Wrong!

Concurrently with the hearing, I tweeted at least 20 problem responses by McCabe (17 plus 3 more, scroll down!). I won’t go into every one of those in this post today – like the predicted and misleading responses on Pompton Lakes – but instead focus on a handful of the worst. These were so bad that I wrote to Senate Environment Committee Chairman Smith the below letter (Sen. Greenstein asked McCabe questions the next day at DEP budget hearing):

Dear Chairman Smith & Senator Greenstein – Thank you both for asking good questions of Acting DEP Commissioner McCabe. I write because I was disappointed and even disturbed by several of her answers, as set forth below.

1. Highlands Septic Density rule 

The Christie DEP rule was vetoed by the Legislature as inconsistent with legislative intent. While McCabe recognized and agreed to comply with that veto, she defended the Christie DEP rule, accused critics of exaggerating or misunderstanding its impact, and adopted the same scientific and legal posture as the Christie DEP in regard to the need to revise the prior rule.

I was stunned when McCabe pledged to rerun the groundwater model (technically, there is no formal “model” per se) and re-propose a new rule.

There was nothing wrong with the existing rule, legally or scientifically or as a matter of public policy. The Christie DEP decided to roll it back based on settlement of a lawsuit filed by the Farm Bureau.

McCabe is taking the same legal and scientific position as the Christie DEP in regard to the Farm Bureau lawsuit.

Instead, she needs to work with the AG and petition the Court revoke the Christie DEP settlement agreement with the Farm Bureau and defend the existing rule. There is no need to re-propose any new rule.

 2. Drinking Water Quality Institute and MCL’s

In response to questions about drinking water risks and MCL’s, McCabe stated that she would consider the economic impacts of treatment technology.

She mis-spoke. She confused the NJ law with the federal Safe Drinking Water Act. Federal law authorizes EPA to consider costs in setting MCL’s. The NJ law does not.

Under the NJ Safe Drinking Water Act, DEP may not consider the costs of treatment in deriving the basis for MCL’s and proposing and adopting MCL’s as regulatory standards.

Furthermore, I was shocked that she was unaware of the Christie DEP’s policies and practices in blocking the DWQI from meeting, delaying proposal of MCL’s recommended by the DWQI, and abandoning a Corzine DEP proposed MCL for perchlorate under Gov. Christie’s EO #1 moratorium on regulations.

Not only was McCabe unaware of any of this  – I assume she was unaware because she swore an oath to provide “complete” testimony – but she contradicted and undermined your legitimate Senate oversight concerns.

Finally, in response to several questions on the need for and status of DEP plans to propose new MCLs, she dodged the issue by saying those questions were difficult to answer because they lacked specificity. Ironically, she then went on to pledge to adopt unspecified MCL’s “this summer”.

I believe McCabe was referring to the PFOA MCL developed by the Christie DEP, and not several other necessary MCL’s. Accordingly, it appears that McCabe is merely maintaining continuity with Christie DEP proposals in the pipeline and not reforming the DWQI and DEP MCL adoption process.

Finally, I found her responses to Senator Gill’s questions about childhood blood lead levels and Senator Dougherty’s questions about pharmaceuticals and unregulated chemicals at best evasive, if not highly misleading.

A prior NJ DEP Report found over 500 unregulated chemicals in NJ water supplies and a DEP consultant’s report analyzed the feasibility, performance and cost of treatment technologies to remove these unregulated chemicals. I’d be glad to provide these studies at your request. The fact that McCabe apparently is unaware of all this is troubling. She either failed to do her homework or has been played by DEP bureaucrats.

3. Liberty State Park (LSP)

McCabe did not disagree with Christie DEP LSP policies, and explicitly kept the door open on pending and future development schemes at LSP.

[Update: I’m getting questions on this so let me provide details:

1. On the golf course, while she rejected the bid submitted in response to the Christie DEP RFP, she then went out of her way to add a huge caveat: “this does not preclude further discussions”. This means the door is open. She could have said: “There will be no commercial development in LSP under my watch” but she didn’t.

2. On the marina she said “no final decision has been made, we are still talking to applicant.” That means the door is open. She could have said: I will soon deny this application and protect the LSP”. She didn’t do that.

On top of that, McCabe did not abandon future development schemes or criticize Christie DEP policy or the inappropriate private planning done under contract by NJ Future. ~~~ end update]

4. Compliance and Inspections and Enforcement

McCabe rejected – twice – the factual basis of Senate oversight questions that claimed Christie DEP enforcement actions were reduced from 30 – 60%. Todd Bates of the The Asbury Park Press had previously reported reductions in enforcement fines of even larger percentages, in the 80-90% range if I recall.That reporting led to editorials admonishing DEP for lax enforcement.

In addition, I have written that the DEP has not submitted the legislatively mandates annual report under the Clean Water Enforcement Act for over 8 years.

I urge you to request that DEP provide accurate data on enforcement over the last 8 years and pledge to comply with CWEA annual reporting requirements.

5. DEP regulatory authority to review pipelines

McCabe’s responses to pipeline questions were disappointing, evasive, and possibly in error. She also testified that she was not familiar with DEP’s C1 stream buffer program, which suggests either incompetence, dishonesty, or failure to conduct due diligence.

Despite being sworn to provide “complete” testimony, McCabe failed to mention recent Christie DEP regulatory changes that either continued prior lax oversight policies or actually weakened the regulatory framework for pipelines, i.e. the recent adoption of revisions to stream encroachment and wetlands regulations that apply to pipelines. Both rule proposals generated strong public opposition and the Legislature almost finally vetoed the stream encroachment proposal as inconsistent with legislative intent.

If McCabe is unaware of these huge controversies, she has not been properly briefed by DEP staff. If she has been briefed and is aware of these issues, she misled the Senate by omission.

Furthermore, despite specifically mentioning the New York State regulatory action to deny NY DEC approvals for a pipeline, McCabe may have misspoke on the legal basis for doing so. McCAbe cited Clean Water Act “Section 404Q.” That section applies to US EPA and Army Corps federal powers.

Instead, I believe she meant to cite NY DEC and NJ DEP’s Section 401 Water Quality Certification powers.

I urge you to request that DEP provide the legislature with a formal legal opinion from the AG on the DEP’s legal powers under Section 401 of the Clean Water Act and DEP’s State freshwater wetlands regulations on “water quality certification” powers. 

In the alternate, you could request that OLS provide a legal analysis of this body of law.

*6. RGGI

McCabe emphasized that the costs of re-entering RGGI would be “marginal” (as in small). She mentioned models. McCabe and BPU are currently negotiating, among other things, new NJ specific caps.

As you know, the initial RGGI cap and the NJ specific cap negotiated by Corzine DEP Commissioner Jackson were considerably higher that actual emissions. While RGGI has since watched down the initial caps by over 40%, I am very concerned, especially after hearing McCabe tout the “marginal” costs and the cost constraints that serve as exit ramps in the NJ RGGI law (i.e. when allowances exceed a $2 ton trigger?) that the new caps will not be restrictive and drive the emissions reductions required to meet the goals of the Global Warming Response Act.

To avoid a repeat of history, I urge you to conduct oversight and ask DEP to hold public hearings on proposed technical issues, like new RGGI caps.

7. Integrity of the regulatory process

In response to Senator Cardinale’s attacks on an individual DEP employee and the DEP Category one and wetlands regulatory programs, McCabe asked Cardinale and all legislators to call her if they learned of controversies in DEP regulatory implementation and enforcement, In response, she pledge that she personally would conduct a site visit to determine the facts and law.

This is a highly improper role for the DEP Commissioner and it invites improper ex parte communications and interventions.

The DEP must make regulatory decisions on the basis of the administrative record. The Commissioner is the final decision-maker and must be independent and objective and maintain an arms length posture. The Commissioner must base decisions on the formal record, not ex parte legislative communications.

I was deeply disturbed by McCabe’s testimony in this regard, where she seemed oblivious to these fundamental principles of environmental law and administrative practice. This is unforgivable given the fact the McCabe is an experienced attorney and former EPA Appeals Board judge who clearly knows better.

To cover bureaucratic malpractice with some rhetoric about being responsive to the people and closer to the problem as a State official – I refer to the responses where McCabe talked about the contrast between federal EPA and State DEP – is intolerable.

There are several other issues I was troubled by but they are beyond the scope of this already too long letter.

I urge you continuing oversight of these important issues.

Respectfully,

Bill Wolfe

ps – I would have copied McCabe on this letter but she has blocked my email. I urge you to forward it to her.

* the RGGI issue was not included in the letter.

Deb Mans is a politically safe follower, not an aggressive environmental leader

For Mans to provide cover for the Christie DEP is an outrage

[Update – 4/13/18 – We just came across this – we doubt that Mans will walk the walk with Gov. Murphy:

“Climate change needs to be more than about rejoining RGGI,’’ noted Debby Mans, NY/NJ Baykeeper. (NJ Spotlight, 8/11/17) ~~~ end update]

My mom told me to judge people by the people they surround themselves with.

By that standard, NJ Gov. Murphy’s Acting DEP Commissioner Catherine McCabe has not shown strength of character.

McCabe made her first management move on Monday, naming Debbie Mans Deputy Commissioner. Mans is formerly head of NY/NJ Baykeeper – read DEP press release.

There were more qualified, more accomplished, and more aggressive environmental advocate candidates that were bypassed in favor of Ms. Mans.

McCabe’s move has generated favorable – and highly misleading by error, spin and omission – press coverage and cheerleading from the usual suspects in the environmental community, see: Appointment of veteran environmentalist marks shift at New Jersey DEP.

This is just one crock of shit in the superficial media coverage:

A longtime clean water advocate, Mans often battled the DEP under Christie, with efforts including a crusade by her organization to establish an oyster reef to clean polluted water in places like the Hackensack River.

Hello! Funding your organization through largely ineffective window dressing feel good projects like oyster restoration is hardly the profile of a “clean water advocate”.

While the DEP Deputy Commissioner position is more of a prestige than a policymaking position – the real DEP management team policy appointments are the Assistant Commissioners, especially the Ac’s for Environmental Regulation and Enforcement – still, it is important to note what the Mans selection signals for McCabe’s judgment and the direction of the Murphy DEP.

So today, we flesh out the details that the media ignored and DEP press releases omitted or spun.

Debbie Mans can hardly be described as a “veteran environmentalist”. She has had little statewide Trenton based legislative and regulatory experience as an “environmentalist”, has virtually no Statewide accomplishments, leadership, or policy victories, and has taken few personal or professional risks, in terms of speaking truth to power or advocating for significant or controversial policy reforms (or opposing bad things like privatization of the DEP’s toxic sites cleanup program, a policy dictated  by her boss Gov. Corzine – or privatizing NJ’s drinking water and sewer systems).

Mans’ few statewide efforts have either been faux grassroots projects manufactured by Foundations like Dodge (e.g. toothless CSO permits, and “urban water infrastructure” (cover for privatization, developer subsidies, and gentrification). These diversions allowed Mans to do NOTHING to oppose privatization of NJ water and sewer systems) or strategic blunders and abject failures (e.g. public access lawsuit attacking DEP’s regulatory powers).

The Bergen Record cites Mans’ efforts in the Passaic River Superfund cleanup.

Mans also was a force in getting the U.S. Environmental Protection Agency to approve a $1.4 billion cleanup of the Passaic River despite a strong lobbying effort by dozens of polluters for a cheaper alternative.

But exactly the opposite is true. Mans supported the cheaper and less protective cleanup alternative!

Mans compromised and supported a low cost partial cleanup – a cap – instead of a permanent cleanup and dredging and complete removal of contaminated river sediments, the remedial alternative advocated by community and environmental groups, like Sierra Club. 

The Record misleadingly cites a $1.4 billion cleanup as huge, but ignores the facts that:

1) The EPA Superfund Record of Decision (ROD) considered and developed a cost estimate for a complete cleanup alternative. EPA rejected the far more costly complete cleanup in favor of a less costly and less protective cap. Mans supported that sell out by EPA. (caps are ridiculed by community and environmental advocates as “pave and wave”. The “environmental” position on cleanups is almost always in support of complete removal, known in regulatory jargon as a “permanent remedy”).

2) Mans caved, despite the fact that a Judge had previously ruled: Occidental Must Cover $4B River Cleanup, Judge Says

Mans also has proven adept at ingratiating political stunts like this (that’s EPA Region 2 Administrator Enck – at a time then EPA Region 2 was funding her organization):

Even as NY/NJ Baykeeper, Mans played political games, like failing to challenge a Billionaire’s – and major Democratic donor – scheme to fill and develop the Hudson River, known as Pier 55

“I find it astonishing,” says Peter Silverstein “that Riverkeeper [AND NY/NJ Baykeeper] has failed to take action against this project.”

Her Trenton experience is primarily political, a former Corzine political appointment who was ineffective as a policy advisor to Gov. Corzine.

Mans knows how to work not only the Foundations, but the Democratic political operatives and donors, in political projects like this:

The Passaic River Patrol is a joint venture between the two long-time partners, with financial support from the Neu Family Foundation. …

The Patrol also has the backing of the Passaic Valley Sewerage Authority and Essex County Executive Joseph DiVincenzo, Jr.

Not one of the real clean water advocates I’ve worked with in Trenton for over 30 years was ever praised by sewage treatment plant operators. These advocates were the folks whose leadership brought real clean water protections from real laws and regulations with teeth, like the Clean Water Enforcement Act, the Highlands Act, and the Category One Waters stream buffer protection program.

When the sewage treatment plants and local political machine hacks like Essex County’s  Joe D. are praising your work, its because you are a bought and paid for chump, working on diversions and window dressing, not real clean water protections (which cost money!).

Yes, Mans sure knows how to shake the funding tree – she even took money from Chris Christie! Mans objected to me talking publicly about this $1 million sweetheart deal she benefitted from:

CRI administered $1 million in funding for an oyster restoration project in the Raritan Bay which was provided under a civil settlement with Chevron U.S.A., Inc. and the New Jersey Department of Law and Public Safety. The settlement arose from a February 2006 oil spill in the Arthur Kill, the strait separating Staten Island from New Jersey.

From 2007 – 2014, this funding was used on NY/NJ Baykeeper’s Oyster Restoration in the Raritan Estuary Initiative. It funded the first stages of restoring oysters to the Raritan Bay including research and experiments that have shown that oysters can be restored to this area. Through their work in New York City and New Jersey, Baykeeper is showing that oysters can play a fundamental role helping filter pollutants and restore ecosystem function to the Raritan Bay and Hudson River Estuary.

These types of civil settlements are quite common at the Federal level. Realizing this, CRI met with the US Attorney’s office in 2007 after they announced a big settlement in New Jersey that was to be awarded to NFWF, which, in-turn, was going to grant it to other non-profit conservation organizations in New Jersey. We met with the US Attorney in order to determine whether or not a local non-profit could play the role that NFWF typically plays in administering these funds. The US Attorney’s office could not provide an answer to us and it still remains unclear whether NFWF has a monopoly on this type of federal funding. 

Mans has also been funded by NJ DEP (she used her personal contacts to secure that money) and US EPA. (links forthcoming on that)

I would describe Mans as a follower – not a leader – a loyal Democratic supporter, and a politically safe appointment.

She began her NJ career at the Stonybrook Watershed. Former Watershed Director George Hawkins set the tone for that organization. Hawkins was widely criticized as a notorious opportunist, who put fundraising and political cover (for Gov. Whitman) above policy and principle, a fundamental flaw that Ms. Mans epitomizes.

Mans got tons of press about her “oyster restoration” project – now rehashed in praise by the Bergen Record but belied by the facts – look at photo below and news coverage. The Record is just flat out wrong in printing this half truth, which amounts to a lie:

Mans often battled the DEP under Christie, with efforts including a crusade by her organization to establish an oyster reef to clean polluted water

After the initial fight, Mans ended up SUPPORTING the Christie DEP. And even worse than providing Christie DEP cover, in defending her organizations pet project and funding source, Mans ignored the real water pollution threats and DEP regulatory failures, and instead used that press to create a faux image as an aggressive advocate and critic of the Christie administration – but LOOK AT THIS:

Michele Siekerka, assistant commissioner of water resource management at the DEP, was on hand to show the state’s support of the work.”Today is really about successful partnership,” she said, saying the effort between the Navy, Baykeeper and the DEP showed a joint mission in environmental stewardship, quality of life and public safety – “safe waters and sound science.”

Shortly after that political photo-op, Ms. Siekerka spun the revolving door and rejoined her corporate friends as President of NJ BIA. For Mans to provide cover for Siekerka and the Christie DEP is an outrage.

More recently, Mans has joined a corporate, politically moderate, and financially well endowed elite conservation faction that is led by Mike Catania of the Duke Foundation. That faction has formed other interlocking astroturf groups like the Keep It Green Coalition and the NJ League of Conservation Voters. These people are NOT activists or aggressive activists, nor are their organizations. They focus on funding their organizations and pet projects. Period.

Basically, the purpose of this foundation funding driven KIG – NJ LCV project is to get Jeff Tittel and the “Trenton radicals” out of leadership and control of the political strategy and media message  of the NJ environmental movement.

Mans is at the heart of that “counter-revolution”.

Mans is on NJ LCV Board. NJ LCV endorsed Murphy for Gov. [and spent $335,000 to help elect Murphy]. Her appointment creates the appearance of a quid pro quo – in NJ, that’s a violation of the State Ethics law’s “appearance” standard.

DEP Commissioner McCabe worked for RA Enck at EPA Region 2 in NY. She has to be familiar with all this.

Given all that, I see the Mans selection as another cynical move by this Administration to garner “green cover” and favorable media.

This does not bode well for the much needed real substantive policy reforms, see:  NJ Gov. Murphy Faces A Huge Challenge Reversing Christie Environmental Dismantling And Restoring DEP Integrity and Leadership.

Republican Rollbacks Never Restored 

Over Time, The Policy Of Continuity Goes In One Deregulatory Direction

On this Earth Day, instead of issuing the standard warning to get the hip boots on because the bullshit will be deep, I thought I’d reflect on a disturbing trend in the historical direction of environmental policy.

Let’s call it the “deregulatory ratchet” (TM).

In politics and media, there is a similar dynamic called the Overton Window. Over time, the corporate right have shifted the Overton Window sharply to the right, such that what was unthinkable just a few years ago is now considered a viable and reasonable policy agenda (which we have called fascism, see:

• The Right Wing’s New Long Game Plan – “Project 2025″

The deregulatory ratchet operates in a similar fashion, to wit: Republican administrations roll back regulatory protections and the succeeding Democratic administrations never restore them and just move on to other issues.

The deregulatory ratchet has multiple policy features: deregulation, privatization, budget cuts, revolving doors, corporate capture, and co-optation of environmental groups are the primary mechanisms.

Some call this “Neoliberalism”, but we prefer our term “deregulatory ratchet” because that term is historical, dynamic, and provides a framework to drill down on the concrete substantive policy and program agenda that constitutes the “deregulatory ratchet”.

This term can promote transparency, media coverage, and accountability. In contrast, the term “Neoliberalism” is far too theoretical, abstract, and inaccessible. To some, the term even sounds good, i.e. a form of “liberalism”.

There are several factors that promote or enable the deregulatory ratchet to operate with impunity and without accountability.

These factors include a depleted media that lacks institutional memory, co-opted environmental groups led by mediocrities or incompetents (that’s you Doug O’Malley, Ed Potosnak, and Anjuli Ramos), and public officials who have corporate backgrounds and are increasingly willing to gaslight, manipulate, and even lie to the press and public (that’s you, Shawn LaTourette).

The Murphy administration and DEP Commissioner LaTourette provide a case study that perfectly illustrates the deregulatory ratchet. They have yet to restore Republican rollbacks going back 30 years to the Whitman administration and more recently 8 years of the Christie administration.

As a result, regulatory protections continue to erode; DEP budget, staff and science are increasingly inadequate to respond effectively; environmental groups are totally co-opted sycophants and cheerleaders; and as a result environmental quality and public health protections worsen across the board while corporate power increases.

So, with those thoughts in mind, here is my letter to DEP Commissioner LaTourette that provides the evidence to support my “deregulatory ratchet” theory. I think the current term for this letter is “the receipts”:

———- Original Message ———-

From: Bill WOLFE <b>

To: “shawn.latourette@dep.nj.gov” <shawn.latourette@dep.nj.gov>, “Sean.Moriarty@dep.nj.gov” <Sean.Moriarty@dep.nj.gov>

Cc: “keith.cooper@rutgers.edu” <keith.cooper@rutgers.edu>, “O’Neill, James” <ONeillJ@northjersey.com>, “tmoran@starledger.com” <tmoran@starledger.com>, “fkummer@inquirer.com” <fkummer@inquirer.com>, “wparry@ap.org” <wparry@ap.org>, “ferencem@njspotlightnews.org” <ferencem@njspotlightnews.org>, “jonhurdle@gmail.com” <jonhurdle@gmail.com>, Robert Hennelly <rhennelly55@gmail.com>, “david@njglobe.com” <david@njglobe.com>, domalley <domalley@environmentnewjersey.org>, Anjuli Ramos <anjuli.ramos@sierraclub.org>, “Taylor McFarland, NJ Sierra Club” <taylor.mcfarland@sierraclub.org>, “zoe.kelman@gmail.com” <zoe.kelman@gmail.com>

Date: 04/20/2024 6:36 AM EDT

Subject: NJ Leadership & Voluntary compliance – chromium in drinking water

Dear Commissioner LaTourette:

California and NJ have long been national leaders in the adoption of science based stringent standards to protect public health and the environment for air, water, toxic site cleanup, chemical safety, energy, and climate.

In the nation’s most densely populated State with a legacy of industrial pollution, under federal and New Jersey State laws, NJ DEP has long adopted environmental standards that were broader in scope and more stringent than federal minimums. This reflects the federalism framework under federal environmental law, which allows States to adopt more stringent standards, based on local conditions and policy priorities.

However, NJ’s national leadership and policy of adoption of more stringent State standards were reversed by Governor Whitman’s 1994 Executive Order #27, as part of her “Open For Business” policy initiative.That Executive Order was never revoked.

Making things worse, on his first day in Office in 2010, Gov. Christie issued a package of “regulatory relief” Executive Orders: Executive Orders #1 (regulatory moratorium) Executive Order # 2 (regulatory relief), Executive Order #3 (Red Tape review), and Executive Order #4 (abdication of State role to local government).

As you know, those Christie Orders were revoked by Gov. Murphy’s EO #63, but that Order did not restore the policy of State leadership and more stringent State DEP standards that existed prior to the Whitman Order #27.

While there have been exceptions, since the Whitman administration, DEP has relied primarily on federal EPA standards. Whitman and Christie era regulations have been readopted without change. In fact, the Murphy DEP has readopted 51 regulations without change (see the DEP Rule Re-adoption Without Change page.)

With this context in mind, I am writing to followup on my recent email that requested the status of the DEP’s consideration of a State drinking water MCL for hexavalent chromium.

The State of California just adopted the first drinking water standard for hexavalent chromium.

The NJ DEP does not have a drinking water standards for hexavalent chromium.

As you know, in September 2010, DEP scientists assigned to the NJ Drinking Water Quality Institute recommended a health based MCL for hexavalent chromium of 0.07 parts per billion: (see the Drinking Water Quality Institute’s meeting minutes for September 10, 2010:

3. Subcommittee Summaries—Subcommittee Chairpersons Health Effects—L. McGeorge: She noted first that the Subcommittee had adjusted its workplan, delaying action on radium and tertiary butyl alcohol to the first quarter of 2011; they would consider adding nitrates to their workload at a future meeting. Second, after A. Stern’s presentation at the previous Health Effects Subcommittee (HE) meeting on the slope factor developed by the NJDEP Chromium Workgroup for oral exposure to hexavalent chromium, the HE had accepted this slope factor as the basis for a Health-based MCL recommendation for hexavalent chromium at its September meeting. L. McGeorge distributed copies of a memorandum to the Testing and Treatment Subcommittees, recommending a health-based maximum contaminant level (HBMCL) of 0.07 μg/L for hexavalent chromium based on this slope factor.

Thus, hexavalent chromium is an unregulated chemical similar to the regulatory status  of the family of “forever chemicals PFAS prior to recent DEP regulation.

Upon adoption of drinking water standards for PFAS in 2020, the DEP issued a press release that touted national leadership – and also made a statement that even without that State regulatory standard, that there was “voluntary” compliance upon “detection” (DEP Press Release):

“Safe drinking water is a top priority for the Murphy Administration,” said Commissioner Catherine R. McCabe. “With the adoption of these standards, New Jersey continues to lead the nation in protecting public health and the environment from these chemicals, which have been detected at varying levels across the state. New Jersey’s water systems have worked voluntarily and productively with us over the years, taking steps to protect the public when these chemicals have been detected. By adopting formal standards, we are putting in place a clear regulatory framework that will ensure consistency in monitoring, public notification and treatment across the state.”

https://www.nj.gov/dep/newsrel/2020/20_0025.htm

Has there been similar voluntary protections for hexavalent chromium, i.e.”New Jersey’s water systems have worked voluntarily and productively with us over the years, taking steps to protect the public when these chemicals have been detected.”

Have NJ water systems sampled for, detected, and treated hexavalent chromium to at least 0.07 ppb?

Accordingly, I strongly urge you to adopt the drinking water standards of 0.07 ppb recommended by DEP scientists back in 2010.

Thank you:

Bill Wolfe

Murphy A Huge Disappointment On Climate And Environment

The Gov.’s Rhetoric Is Belied By The Record

The Gov. Is Batting Just 0.119 (5 for 42)

I just heard NJ Gov. Phil Murphy straight up claim he had the strongest environmental record in the country. (The Gov. was interviewed on David Cruz’ “Chatbox” show – watch at time 8:20.)

The Gov. made that highly misleading and outright false claim in response to a viewer’s criticism of his support for NJ Turnpike expansion and alleged that he was “tripling down” on new fossil infrastructure. The Gov. took exception and called the premise of the question “ridiculous”, followed by an arrogant laugh. The Gov. then cited his accomplishments on offshore wind, solar, and environmental justice.

Well, the laugh is on Gov. Murphy.

He must believe his own spun press releases and the environmental cheerleaders he funds.

New York State is running circles around his environmental record, particularly on climate.

For example, NY has legally binding, enforceable, and funded climate goals (for greenhouse gas emissions reductions and renewable energy capacity) and NY State is embarked on a comprehensive public planning process to implement those goals. NY is closing nuclear plants (Indian Point). NY regulates all GHG emissions sectors and protects the carbon storage and sequestration values of forests.

In contrast, NJ’s Global Warming Response Act sets toothless, voluntary, aspirational goals. Gov. Murphy’s Executive Orders are not enforceable and serve essentially as press releases. NJ relies for funding on the pitiful RGGI emission allowance revenues and Murphy has diverted hundreds of millions of Clean Energy Fund revenues to other purposes. DEP carbon dioxide regulations (which apply only to a small portion of the power sector) set weaker standards than what the private market already meets and those standards are totally unrelated to the GWRA goals. BPU Energy Master Plan goals and programs require case by case implementation and are limited by cost tests and legal caps. Murphy provides $300 million per year in nuclear subsidies, over $1 billion so far. Murphy’s wind program relies on huge corporate subsidies, natural gas backup power, and is experiencing delays and cost over-runs that raise questions of economic feasibility. Solar installed capacity has fallen short of projections and Murphy’s solar legislation is stalled and it relies on a complex solar credit scheme from out of State renewable power generators. Huge subsides to nukes and caps and delays on solar – heck of a job! And NJ DEP is logging state forests based on sham slogans.

But aside from a State by State comparison, the Murphy environmental record is weak by NJ standards and historical achievements and expectations of the public.

Murphy was faced with a huge challenge after 8 years of Gov. Christie’s neglect and rollbacks.

I was involved in a similarly challenging situation upon returning to work for the McGreevey DEP Commissioner in 2002, after 8 years of Christie Whitman’s “Open For Business” environmental disaster. McGreevey Commissioner Brad Campbell’s first move – and my first project assignment – was to conduct a Department-wide “Vulnerability Assessment” to get all the skeletons out of the closets and prepare a public “Honest Baseline” report documenting that challenge (a smart move by Campbell not only to set the Whitman record straight and define the policy reform agenda, but also to avoid being blamed for the Whitman policies and mistakes in the pipeline).

But Gov. Murphy did nothing remotely like that. His approach was essentially to maintain continuity at DEP. Examples:

1. Murphy’s initial DEP Commissioner Catherine McCabe was weak and ineffectual and didn’t last long. Murphy replaced McCabe with Commissioner LaTourette, a former corporate lawyer who represented large polluters and has extensive conflict of interest ethical challenges. Gov. Murphy actually had the gall to call LaTourette an “Erin Brockovich” public interest lawyer!

2. Shamefully, his DEP has failed to reverse any of the Christie DEP regulatory rollbacks and budget cuts. Note: The Legislature effectively repealed the Christie DEP Highlands Septic Density Standard rollback, not DEP.]

3. From a policy perspective, DEP has done very little to respond to longstanding environmental problems and flawed DEP policies, weak regulations, lax enforcement (including the elimination of enforcement Division and consolidation of political control in Commissioner’s Office), and inadequate programs.

Perhaps worse, the Murphy DEP has cut back even further on production of annual performance reports on DEP’s various programs, forcing the public to conduct incredibly difficult website searches using DEP’s flawed databases. The Murphy DEP has expanded the abuse of the Open Public Records Act, particularly to deny public records under the “deliberative privilege” exemption, thereby throwing a blanket of secrecy over virtually all DEP staff work, Reports, and internal communications. The lights are out at DEP for the public (frustrating transparency and accountability), but the revolving door and back door are wide open for corporate interests to exploit.

For example, at the outset of the Murphy Administration (January 27, 2018), I outlined a comprehensive set of benchmarks to measure DEP’s performance.

I laid out 42 specific actions DEP needed to take to begin moving the ball forward (reversing the Christie DEP rollbacks was the first step, see:

• NJ Gov. Murphy Faces A Huge Challenge Reversing Christie Environmental Dismantling And Restoring DEP Integrity and Leadership

I just quickly reviewed that list and DEP’s performance has been pathetic. DEP only partially addressed 4 or 5 of the 42 actions, which I repeat here so readers can see for themselves that the Gov. is full of crap: