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Sweeney Still Blocking McCabe Confirmation – What Does He Want?

Gov. Murphy needs to veto the nuke bailout and fracking wastewater bills (if they pass both houses), direct DEP to enforce NJ cleanup laws and assume control over the Dupont Pompton Lakes site, and tell Sweeney that bullies and Boss George Norcross’ machine puppets no longer rule NJ.

Scott Fallon wrote an interesting story yesterday at the Bergen Record –

While I think he got it mostly right, I’m interested in what the story doesn’t say explicitly but implies, so read the whole thing: 5 early environmental tests for Phil Murphy that will affect NJ families.

Fallon notes this, which I found particularly interesting in light of my sense that Senate President Sweeney is blocking confirmation hearings on Gov. Murphy’s DEP Commissioner nominee, Catherine McCabe:

Murphy may soon end up with a bill on his desk that would allow a DuPont spinoff company to resume processing contaminated wastewater at its South Jersey chemical plant without an environmental review. 

Environmentalists have opposed the measure, saying it would bring scores of trucks hauling tanks of toxic waste onto New Jersey roads. They also worry that the treated water could damage the Delaware River, where it is discharged after being processed at the facility in Salem County.

The bill is sponsored by Senate President Steve Sweeney, the state’s most powerful legislator, whose district covers the DuPont plant. The Senate unanimously approved the measure last month. Environmentalists expect the Assembly to approve the measure soon, after an environmental committee voted unanimously in favor of it last month.

Fallon failed to note that the Dupont facility lacks wastewater treatment technology to remove all the radioactive and chemical compounds known to be present in fracking wastewater and the DEP permit lacks adequate protective conditions and enforceable permit effluent limits to protect the Delaware River from these pollutants.

Grandfathering that Dupont permit from new DEP review via special legislation is totally irresponsible.

[Note: Just learned that Fallon mentioned these issues in an excellent prior story he linked to, see this]

But I’m just as interested in the politics of this story as in the technical, regulatory, and policy issues.

Specifically, I’ve written that Senate President Sweeney is blocking the confirmation of Gov. Murphy’s DEP Commissioner (see: Senator Sweeney’s Block On The Confirmation of Gov. Murphy’s DEP Commissioner Prolongs Gov. Christie’s Anti-Environmental Policy.

I’ve speculated that Sweeney is holding McCabe hostage to secure unspecified policy concessions, including the Gov.’s support of Sweeney’s multi-billion dollar PSEG nuclear bailout bill.

And I’ve also written about the absurd fact that Murphy allowed Sweeney to install his political aid Eric Wachter in the second highest Murphy DEP position, as Chief of Staff. Wachter is a mole from within. That was probably a quid pro quo for appointing Debbie Mans as Deputy Commissioner.

But I’ve not mentioned the Dupont fracking wastewater issue, which environmental groups have fought hard over, almost successfully, to achieve a total ban (Gov. Christie vetoed that bill).

But instead of a ban, it seems that the Legislature has taken a U-Turn and now seeks to support acceptance of fracking wastewater.

So I have major questions:

1. How did the same Democratic Legislature go from passing a bill to ban acceptance of fracking wastewater in NJ under Republican Gov, Christie, to supporting a bill to allow it under Democratic Gov. Murphy, and without environmental reviews and protective DEP permit conditions?

2. Is Sweeney holding McCabe’s confirmation hostage to the Gov.’s signature on the fracking wastewater bill – in addition to the PSEG nuclear bailout – which would benefit only Dupont profits?

3. Is Sweeney’s support of Dupont’s fracking profits also pressuring Gov. Murphy to back off his comments on the Dupont Pompton lakes site, which compared the Dupont PL site to Love Canal?

These are the kind of questions reporters like Scott Fallon (and his editors) will never address head on and only insinuate. Where is Jeff Pillets?

We’ll try to figure out what the hell is going on, but this far it sure looks like Sweeney holds the upper hand.

Gov. Murphy needs to veto the nuke bailout and fracking wastewater bills (if they pass both houses), direct DEP to enforce NJ cleanup laws and assume control over the Dupont Pompton Lakes site, and tell Sweeney that bullies and Boss George Norcross’ machine puppets no longer rule NJ.

Christie DEP Pledged Support, Manipulated Residents, And Then Weakened Protections

Murphy Administration DEP Playing Similar Manipulative Games

The same local opportunist taking the bait

Sadly, very few people remember that the very first press release issued by the historically prolific & perverse spinning Christie DEP Press Office – issued on January 25, 2010, just 6 days after Christie’s Inaugural – pledged support for the people of Pompton Lakes in their battle with Goliath Polluter Dupont: (DEP release – read the whole thing, emphasis mine)

DEP PLEDGES SUPPORT FOR POMPTON LAKES RESIDENTS AFFECTED BY MUNITIONS PLANT POLLUTION

(10/P3) TRENTON – The Department of Environmental Protection is redoubling its commitment to the residents of Pompton Lakes by working with its state and federal partners to ensure a prompt and thorough cleanup of contamination from the DuPont Pompton Lakes Works site. …

“The DEP is committed to making sure the residents of Pompton Lakes finally get the peace of mind and full protection from pollution they deserve,” said Irene Kropp, assistant commissioner for the DEP’s Site Remediation Program. “Along with our partners, we will build confidence in the residents and assure them that we are working hard to protect them and rid the community of this pollution once and for all.”

We called bullshit on this cynical crap at the time – and our predictions were right about on the money – just one example: Christie DEP Relaxes Toxic Vapor Intrusion Standards

Part I – The Christie DEP Play

As a part of the Christie DEP’s manipulative game, DEP Commissioner Martin spoke with Ella Filipone, then head of the Passaic River Coalition, and used her as a “trusted” intermediary with the residents and local groups working to cleanup the Dupont site. Ella has since passed, but its fair to say that although Pompton Lakes is located in the Passaic watershed, that the PRC organizationally did nothing on the issue of cleanup of contaminated sites and nothing at all in Pompton Lakes.

So Martin’s outreach through Filipone and PRC was dubious from the outset to anyone who was paying attention or objectively analyzing facts in a clear eyed way, without consideration of self interests or money. But it gets much worse.

Martin used Filipone to manipulate, divide and control local groups and otherwise sow chaos that undermined EPA’s efforts and provided cover for Christie DEP rollbacks. Let me explain, briefly.

At the time Martin was installed at DEP (2010), there were two groups in PL working on the Dupont cleanup:

1. a visible, active, and aggressive group known as Citizens for a Clean Pompton lakes (CCPL). CCPL met regularly and had strong leadership of former local official Lisa Riggiola. CCPL had active members and a website. CCPL was provided technical assistance by Edison Wetlands Association – at that time the state’s most active group on toxic site cleanup issues – and myself as NJ PEER (and as a writer at the Star Ledger’s NJ.Com and later here at Wolfenotes)

2. a much less aggressive, less visible and less well organized group, formed after CCPL emerged, known as Pompton Lakes Residents for Environmental Integrity (PLREI).

Here’s the Martin scam:

Commissioner Martin told Ella Filipone that he would provide a technical assistance grant to PRC and that she could provide DEP funding and technical assistance to PLREI.

Despite our warnings, the leaders of PLREI, promised DEP money, took the bait: (PLREI website)

PLTAG
 
In 2011, our organization partnered with the Passaic River Coalition to form the Pompton Lakes Technical Advisory Group (PLTAG). The PLTAG has been awarded the first ever Technical Advisory Grant by the New Jersey Department of Environmental Protection (NJDEP). We are currently completing the application and scope of work in order to review existing technical data relating to the DuPont contamination in our town. The purpose of this research is to evaluate the data and report our findings to the United States Environmental Protection Agency (USEPA), NJDEP and the general public. Our goal is to make this data more easily accessible and understandable to the residents of our community.

Due to administrative holdups at the NJDEP, this grant has taken three years to begin. We are now in the process of meeting with a Licensed Site Remediation Professional (LSRP) and will be moving forward soon. We appreciate your patience. 

At that time, CCPL was seeking EPA funding for a technical assistance grant to Edison Wetlands Association.

Martin’s game was classic divide and conquer and a transparent effort to use DEP funding to manipulate and control the funded group PLREI.

At the same time, Martin was able to undermine CCPL and deny Edison Wetlands Assc. a technical assistance grant from US EPA. Under EPA technical assistance grant funding policies, there must be a unified local group to receive the EPA funding – EPA does not fund internecine local political fights. Martin knew that.

The result of Martin’s ploy was to create tension and conflicts between PLREI and CCPL such that a unified voice could not emerge and a focus on consensus issues drive the debate. The confusion muddied the media coverage and often let DEP and/or EPA off the hook because the two groups could never agree on the issues or an overall strategy.

The conflicts got so bad that EPA Region 2 Administrator Judy Enck’s political hack Lisa Plevin (former senior aid to US Senator Lautenberg) strong armed the leaders of CCPL to fall in line, tone it down, stop criticizing EPA, and consolidate with and behave more like PLREI. I attended these meetings and know this first hand. It was disgusting.

And I blame the leader of PLREI for all this – which I repeatedly warned him would happen.

Even today, 8 years later, PLREI still can’t or won’t admit that they are duped by Martin’s DEP:

Due to administrative holdups at the NJDEP, this grant has taken three years to begin.

Even today, PLREI still seek to:

We are now in the process of meeting with a Licensed Site Remediation Professional (LSRP) and will be moving forward soon.

LSRP’s are corporate tools. They won’t rat out the whole game for a small contract with PLREI.

The technical assistance they someday may get from a LSRP will be nothing like the technical assistance that should have been provided by Edison Wetlands to CCPL.

Part II – The Emerging Murphy DEP Play

Fast forward 8 years – that same local leader that still heads PLREI fell for a very similar scam by the Murphy DEP, see:

• DEP’s Latest Dupont Scandal
• The Murphy DEP Is Out of Control In Politicizing Dupont Pompton Lakes Permit Review
• NJ Gov. Murphy Just Compared Dupont Pompton Lakes To Love Canal – So What Is He Going To DO About It?

Here’s that sad repeat story.

This PLREI leader somehow managed to ask Gov. Murphy a question on a radio call in show. Murphy promised that Acting DEP Commissioner McCabe would call him. McCabe called. We don’t know what PLREI asked for.

McCabe then directed her Chief Of Staff, political operative Eric Wachter to get back to the PLREI leader.

At the time, I was out of the loop camping and hiking in the deserts of Arizona, but would get scattershot email discussions of CCPL folks when I came to town for supplies.

The group seemed confused about their inability to get a copy of the September 2017 public hearing transcript on the Dupont groundwater pilot study. The discussion was mis-focused on this minor transcript issue. There even was talk that PLREI could convince DEP Commissioner McCabe to grant them a favor and get them this transcript.

I told them that DEP was legally required to provide a copy – all they had to do was file an OPRA records request for it.

I warned them that continuing to ask for Superfund designation by EPA would let Gov. Murphy and DEP off they hook – they would simply point the finger at Trump EPA. Trump EPA would never list on Superfund and if they did it would only be to protect Dupont. Pruitt installed a Dow/Dupont lawyer to head Superfiund and other chemical safety and cleanup programs.

I warned that the Bergen Record’s “Toxic Secrets” whitewash and revisionism – which allowed Obama RA Enck to spin and claim she supported Superfund listing (but did nothing to make that happen) laid the media narrative and political groundwork for Gov. Murphy and DEP Commissioner McCabe to look like heroes in seeking Superfund listing, while ignoring State DEP powers, and that as a result of these political games and media narrative, that nothing would get done. That seems to be the emerging Murphy DEP play.

Instead of wasting a demand on the transcript issue, I advised them to raise the bar and make a set of substantive demands, lest they get manipulated and used – again. Big stuff like this:

1. Issue an Executive Order directing DEP to act as follows, within 30 days:

2. NJ DEP must assume direct oversight of all facets of the cleanup of the Dupont PL site under NJ cleanup laws;

3. NJ DEP Commissioner McCabe must revoke the 1988 ACO – here’s the basis to do that, from DEP boilerplate ACO document: (DEP has other enforcement authority as well)

IX. Reservation of Rights

35. The Department reserves the right to unilaterally terminate this Administrative Consent Order in the event that the Department determines that [Person] has violated the terms of this Administrative Consent Order.Before the Department unilaterally terminates this Administrative Consent Order, the Department shall notify [Person] in writing of the obligation(s) which it has not performed, and [Person] shall have thirty (30) calendar days after receipt of such notice to perform such obligation(s).

In place of the ACO, DEP must issue a Spill Act Directive to Dupont, which lays out enforceable technical requirements, deadlines, compensation for DEP oversight costs, and enforcement penalties.

4. Using Dupont’s money, DEP must hire contractors to conduct the remaining cleanup at the site.

5. DEP must reopen the partial Natural Resource Damage settlement with Dupont negotiated by former DEP Commissioner Brad Campbell. That sweetheart deal was corrupt, provided no benefits to Pompton Lakes, and actually allowed Dupont to donate contaminated land (see Bergen Record story: Dupont deal gave state more tainted soil

Bill Wolfe of the Public Employees for Environmental Responsibility’s New Jersey chapter agreed. “DuPont got a sweetheart deal and DEP didn’t do their homework,” Wolfe said. “The deal must be renegotiated and DuPont forced to pay fair compensation, especially to Pompton Lakes residents who have suffered for decades.”

DEP can use the soon to be completed US FWS’s NR damage assessment as part of the basis for additional NRD compensation $.

6. DEP must threaten – and, if Chemours/Dupont  is intransigent – collect treble damages authorized by the NJ Spill Act.

Well, as I’ve written, they’re on the road to getting screwed again – and are ignoring my suggestions and following the “Strategy” of the same individual and playing right into the emerging DEP sham.

Fool me once, shame on you. Fool me twice….

[Soon to come: Part II – “Good Girl Gone Gulch”- or – “An Activist and Woman At Yale” (h/t to. Yalies William Buckley and Gus Speth)

And there’s nothing sexist in the above.

Given the current climate on these issues, let me explain.

I spent a month in and around the deserts and mountains of Bisbee Arizona – the local bumper sticker is “Like Mayberry on Acid”. It’s an old copper mining town with lots of history, especially labor battles and union organizing. The core of downtown is “The Gulch” or “Brewery Gulch”. Old school bars and a good local brewery.

A local store sells tee-shirts and other cool stuff – probably the best is “Good Girls Gone Gulch”.

That’s it – with respect to the Yale allusion – you’ll soon see.]

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

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

[Update below]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

What the hell is really going on?

Who is running the show at DEP?

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

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

Christie Holdovers Now Openly Sandbagging Murphy’s Policy Commitments

No appointments in place at DEP, Highlands and Pinelands

Senator Sweeney’s Mole as Chief of Staff at DEP

What the hell is going on?

One way President Trump is radically dismantling government is by failure to make appointments to fill vacancies at key federal agencies: see NPR, “Hollow government by design” (a variant of Grover Norquist’s strategy of drowning government in the bathtub) and by appointing incompetent, unqualified, ideological hacks, and/or industry lobbyists to key policy positions (think EPA’s Scott Pruitt).

[Update 3/7/18 – Echoing the point I made above, today Propublica released this bombshell on Trump appointments, see:  Meet the Hundreds of Officials Trump Has Quietly Installed Across the Government , Fine minds do think alike, but some get ignored. ~~~ end update]

Something similar but not quite as extreme is happening in NJ due to inaction by Gov. Murphy.

He seems unwilling or incapable of getting his own people (or good people) in office and purging Gov. Christie’s holdovers who are sabotaging his agenda.

NJ Spotlight reports today that Gov. Christie’s BPU President and former fossil energy industry lobbyist Richard Mroz and patronage BPU appointment Dianne Solomon are openly sabotaging Gov. Murphy’s renewable energy commitments on wind.

[Clarification: a reader notes that BPU Commissioners enjoy 6 years terms and Mroz and Solomon have at least a year to go – thus Murphy can’t replace them. But that doesn’t absolve Murphy for DEP or Highlands or Pinelands inaction, or agreeing to Sweeney’s aid as DEP Chief of Staff, or not moderating Mroz & Solomon’s overtly partisan attacks. All are signs of weakness or lack of resolve. In contrast, I never recall Democratic appointee go along to get along Joe Fiordaliso attacking Gov. Christie policies. Or Democrat Commissioner Chivukula. Dems roll over again and again.]

Mroz threw an economic monkey-wrench into Murphy’s wind policy – the same rationale he used to kill  wind for 8 years. Spotlight reported:

BPU Commissioner Richard Mroz cautioned about those costs.

“As of this day, we have no foundation to know what offshore wind will cost,” said Mroz, who during a stint as agency president under Christie took no action to push the technology forward, nor the regulations to finance the offshore wind farms. “In the future, we will confront very tough decisions to make.”

Republican Solomon – wife of Lee Solomon, Gov. Christie’s climate denying first BPU President  and NJ Supreme Court pick– piled on: (Spotlight)

Fellow BPU Commissioner Diane Solomon agreed. Referring to offshore wind, Solomon, a fellow Republican, said: “It must be economically competitive and benefit ratepayers. It’s prudent to move ahead cautiously.”

And we predicted that Gov. Murphy’s BPU President, go along to get along “Pipeline Joe” Fiordaliso, would not be a leader at BPU. Latest evidence: check out this equivocation that inspires zero confidence in BPU’s ability to deliver on Gov. Murphy’s commitments:(Spotlight)

I believe we have a moral obligation to mitigate the effects of climate, change,” Fiordaliso said. “Will we be successful? I don’t know, but we won’t be if we don’t try.”

No timeframe

But Fiordaliso declined to project a timeframe for how long it would take to develop the regulations, nor the strategic plan for offshore wind.

What the hell is going on?

That open sandbagging and flaccid “leadership” prompted me to followup on a prior post about Senator Sweeney’s block on confirmation of Murphy’s DEP Commissioner, and McCabe’s own first mis-step in selection of her Deputy Commissioner .

The current reality is actually worse than I imagined.

I)  Let’s first look at DEP

Aside from Deputy Commissioner mis-step, Acting Commissioner McCabe’s only other personnel decision was installing Eric Wachter as Chief of Staff Government/Legislative Affairs. That’s actually worse than Debbie Mans.

Mr. Wachter is a policy lightweight – he has zero environmental science, law, or policy background or advocacy experience.

He was an administrative gopher and loyal paper pusher for Lisa Jackson at DEP and US EPA.

Worse, Wachter is a Sweeney mole. As Insider NJ reported on August 29, 2017:

Senator Sweeney also announced the hiring of Eric Wachter as a Deputy Executive Director in the Senate Majority Office.

“Eric brings experience at both the state and federal levels to the position and has the knowledge and background to hit the ground running. I know he will make a great addition to the Senate Majority Office staff and am pleased to have him join our team,” said Senator Sweeney.

…  Wachter earned a bachelor’s degree in political science and a master’s degree in nonprofit administration from the University of Notre Dame.

In addition to two bad personnel decisions, Acting Commissioner McCabe has not named her own management team.

There also are several Christie Administration “regulatory relief” policy Offices and political patronage appointees of “culture change” Bob Martin that remain at McCabe’s DEP, including: (these are just a few of the political appointees. And Bob Martin’s entire DEP management team and many lower level loyalists are still in place):

1) Bob Bostock – a former Christie Whitman hack and still head of Murphy DEP Commissioner’s Communications Office.

2)  Lawrence Hajna – still spinning the science and downplaying risks at Murphy DEP Press Office

3) Raymond S. Papperman – Martin patronage appointment and still working in McCabe’s Commissioner’s Office.

4) Bob Martin’s Office of Economic Analysis, headed by Director Ben Witherell, still advocating Martin’s policy that DEP’s mission includes promotion of economic development and Christie’s cost benefit analysis policy under EO#2.

There have been no public statements or mention of any DEP reform priorities or new policy initiatives.

II)  Let’s Look At Executive Orders

Worse, while Gov. Murphy has found the time to issue a series of hollow symbolic Executive Orders on promoting wind (just sandbagged by his BPU!), rejoining a lame RGGI – with a rhetorical EJ policy too – and another that establishes a Council on Economic Advisors that elevates the role of economics and undermines DEP’s role in climate, energy and water resource infrastructure policy, there are several really bad Executive Orders by Governor Christie that remain in place, including Executive Order #2 (“regulatory relief”; cost benefit analysis, and federal consistency policies) and Executive Order #3 (slash “job killing red tape”).

III)  Don’t Forget Appointment Powers – MIA at the Highlands and Pinelands

Finally, there has been no action by Gov. Murphy to deal with Gov. Christie’s horrible appointments at the Highlands Council and Pinelands Commission, including removal and replacement of Executive Directors Wittenberg and Nordstrom.

Like I said: What the hell is going on?