WolfeNotes.com

Tonopah, Arizona

Dog And I Regularly Found Beauty On The Road

Industry Lobbyists Have Gutted Effective Regulation

NJ Has Gone Backwards Over the Last 30 Years, As Toxic Plastic & Packaging Waste Has Exploded

I got a random unsolicited email from the Senate Environment Committee giving me a heads up that the Environment Committee would soon consider a substitute for S3398 (Smith), titled “The packaging Product Stewardship Act” – “An act concerning the disposal of packaging products”.

I am not working on this bill and have no idea why the heads up was sent to me, but it sure sparked memories!

Over 30 years ago, in 1993 the Florio DEP proposed a Solid Waste Plan that sought to fundamentally shift the policy and focus of traditional waste management from disposal to upstream product manufacturing and “lifecycle materials management”. The concepts were based on “industrial ecology” and European laws and programs, particularly the German program.

During the late 1980’s, I was involved with DEP “lifecycle assessment” scientific research projects, which found that over 90% of the environmental impacts of materials in the waste stream were caused by upstream activities, prior to disposal. Yet the overwhelming DEP regulatory program oversight was limited to disposal, which was less than 10% of the impacts. Clearly reform and refocus were required.

The overall reform approach was to shift financial and management responsibility for waste to manufacturers and encourage – or even regulate – their production, distribution and marketing practices to encourage “pollution prevention”, “toxics use reduction”, “source reduction”, and “polluter pays” policies.

Obviously, this was perceived by the business community as a radical expansion of DEP’s regulatory powers into the prerogatives of corporate investment and product manufacturing practices and it was strongly opposed by corporate America, particularly powerful NJ based industries, including consumer products, pharmaceuticals, and chemicals.

I’ve previously written about how corporate lobbyists killed the Florio administration’s groundbreaking Pollution Prevention Act. That law originated in the same DEP “lifecycle assessment” research, including the stunning finding that 90% or more of air pollution from many DEP permitted large industrial facilities was not regulated by DEP air pollution control permits (i.e. pollution from unregulated sources, fugitive emissions, leaks, unregulated chemicals, etc). That law and program applied to chemicals and hazardous wastes and gave DEP enormous regulatory power.

So today I’ve briefly touched on the parallel Florio DEP “Source Reduction” solid waste policy. It is long dead as well and killed by the same corporate interests.

The Florio DEP source reduction policies were adopted in the 1993 Solid Waste Management Plan.

There was legislation drafted by DEP and sponsored by environmental leader Republican Assemblywoman Maureen Ogden to implement those policies, including providing regulatory authority to DEP and allocating financial and legal responsibility on the corporate sector. The bill was A973, titled: “The Household Hazardous Waste Management Act”. 

The A973 bill was far broader in scope than household waste, and provided DEP authority to mandate “source reduction”, including alternative products and alternative production practices and ingredients to reduce both the toxicity and volume of manufactured products, on a lifecycle basis. 

The NJ Legislature’s on line database only goes back to the 2000 legislative session, so I can’t provide a link to the bill. But take my word for it. At that time, I worked with DEP colleagues, legislators, and the Office of Legislative Services lawyers to draft the Dry Cell Battery Management Act and the Toxic Packaging Reduction Act, both laws passed and they significantly reduced the amount of toxic heavy metals entering the environment. Mike Winka (retired from BPU) and I lost a major battle with lobbyists from NJ’s consumer products industry on drafting and seeking passage of the Household Hazardous Waste Management Act (A973), sponsored by Assemblywoman Maureen Ogden [R]. Tom Johnson’s Star Ledger March 1994 front page coverage of that debate sealed the deal. Incoming Whitman DEP Commissioner Shinn killed the bill.

So, taking a brief look at the proposed Senate bill S3398, I can’t help but note that NJ has gone backwards over the last 30 years.

Sadly, that backtracking is masked by slogans like “Stewardship” and cheerleaders who are ignorant of this history.

I sent the note below to the OLS Environment Committee aide.

Who knows, maybe the current “green”, “sustainable development” “environmental justice” “corporate stewardship” crowd might read this and do some digging:

XXXXXX – how far back in time to OLS records go?

You should go back to the 1993-94 legislative session and review bill A973, sponsored by Maureen Ogden. It was titled “The Household Hazardous Waste Management Act”, but it applied far more broadly by providing regulatory authority to DEP to implement a “source reduction” policy (note definition of “source reduction”).

I worked on that bill for the Florio DEP for 2 years.  Whitman killed it in 1994.

The bill drew strong opposition from the consumer products manufacturing lobby, and they brought in the national lawyers and lobbyists A Team from Washington DC to work the bill and defeat it.

It is amazing that thirty (30) years ago, the Legislature and Governor and DEP supported stronger legislation than S3398.

Can you send me the email address of Judy Enck, who I think is the enviro lead lobbyist on this bill?

Wolfe

Forestry on public lands is NOT exempt from the Highlands Act

This is a perfect illustration of how the fine print of the regulations can kill you.

Back in February, I wrote to criticize the Murphy DEP’s political pressure on the Highlands Council, which blocked the Council’s efforts to strengthen protections for Highlands forests, see:

• Murphy DEP Pressured Highlands Council To Abandon Forestry Reforms

That post involved DEP’s interpretation of the Highlands Act regarding an exemption that was intended to be limited to private lands:

The NJ Highlands Council quietly abandoned efforts to amend the Highlands Regional Master Plan to better protect forests and respond to the most recent climate science.

It is clear that the Murphy DEP pressured the Council to abandon those efforts, which very clearly exposed embarrassing major flaws in DEP’s forest management policies, “Best Management Practices”, and regulations.

Last year, in a NJ Spotlight story about the controversial DEP logging of Highlands forests at Sparta Mountain Wildlife Management Area, Highlands Council Executive Director Ben Spinelli made that commitment very public:

“Forestry is exempt from the Highlands Act but only if there is an approved forest management plan in effect, Spinelli said. “What we want to be able to do is put appropriate guidelines in place so that in order to enjoy that exemption, they will have to conform to the guidelines.”

• See: Conservationists clash over plan to save a rare bird in a public forest (September 15, 2023)

To be perfectly clear: forestry on public lands (logging) is NOT exempt from the Highlands Act.

That so called “exemption” was created by DEP’s erroneous interpretation of an exemption in the Highlands Act that applies only to private lands.

Amazingly, the source of this error is the DEP’s parenthetical and unjustified insertion of a bracketed phrase in DEP’s Highlands regulations – i.e “[for public lands]” – into the verbatim text of the actual legislative exemption which applies to private lands! DEP’s erroneous interpretation of the Highlands Act created this exemption and vastly expanded the exemption to public lands. 

Typically, DEP regulations go out of their way to narrow any legislative exemptions. In this case, DEP expanded the Legislative exemption to promote logging on public forests in the Highlands!

How crazy is that?

In oder to correct this massive DEP regulatory error, we submitted the following petition for rulemaking to DEP demanding that DEP correct their illegal error.

Subject: Petition For Rulemaking – Highlands Water Protection and Planning Act Rules; NJAC 7:38-2.3(a)7. – Exemptions

PETITION FOR RULEMAKING – Submitted VIA EMAIL

This petition for rulemaking is submitted in accordance with the NJ Administrative Procedure Act and in substantial compliance with NJAC 7:1D-1 PETITIONS FOR RULES,

December 6, 2024

Shawn LaTourette, Commissioner

New Jersey Department of Environmental Protection

401 East State Street

P.O. Box 402

Trenton New Jersey 08625

Re: Petition for Rule making

Petition for DEP rules to delete the phrase “[public lands]” and restrict the scope of Exemption 7 of the Highlands Act to private lands

• Authority: DEP power to grant rulemaking petition: N.J.S.A. 13:1B-1 et seq; N.J.S.A. 13:1D-1 et seq; and THE HIGHLANDS WATER PROTECTION AND PLANNING ACT, N.J.S.A. 13:20-1 ET SEQ.

Dear Commissioner LaTourette:

Please accept this letter petition for rulemaking pursuant to N.J.S.A.52:14B-1 et seq.

This letter petition is filed pursuant to N.J.S.A. 52:14B-4, which provides that:

“(f) An interested person may petition an agency to adopt a new rule, or amend or repeal any existing rule. Each agency shall prescribe by rule the form for the petition and the procedure for the submission, consideration and disposition of the petition. The petition shall state clearly and concisely:

(1) The substance or nature of the rule-making which is requested;

(2) The reasons for the request and the petitioner’s interest in the request;

(3) References to the authority of the agency to take the requested action.”

I) Rule-Making requested and the petitioner’s interest in it

Bill Wolfe is a citizen, former DEP professional and member of Gov. McGreevey’s Highlands Taskforce. While at DEP, Wolfe represented the DEP Commissioner as a member of the Office of Legislative Service legislative team that drafted the Highlands Act. Wolfe has long been active in promoting the protection of public health and the environment, including via submissions of petitions for rulemaking to force agency action.

NJ Forrest Watch is a citizen based group that seeks to protect NJ forests and advocate for responsible and ecologically minded forestry practices on our public lands.

We request that the Department promulgate regulations to:

1) delete the text “[for public lands]” used in NJAC 7:38-2.3(a)7.

2) amend NJAC 7:38-2.3(a)7. to restrict the scope of Exemption #7 of the Highlands Act to privately owned lands.

II) Rationale for the request

1. The Department’s implementing regulations at NJAC 7:38-2.3(a)7. are broader in scope and contradict the text of exemption #7 of the Highlands Act. The subject regulatory text is ultra vires.

2. The Department’s implementing regulations at NJAC 7:38-2.3(a)7 conflict with the legislative intent of Exemption #7 of the Highlands Act.

3. The Department’s implementing regulations at NJAC 7:38-2.3(a)7 conflict with the legislative findings, intent, fundamental purposes, objectives, policies, and standards of the Highlands Act.

Specifically, NJSA 13:20-28(a)7, hereafter exemption #7 of the Highlands Act, states the following:

“(7) an activity conducted in accordance with an approved woodland management plan pursuant to section 3 of P.L.1964, c.48 (C.54:4-23.3) or a forest stewardship plan approved pursuant to section 3 of P.L.2009, c.256 (C.13:1L-31), or the normal harvesting of forest products in accordance with a forest management plan or forest stewardship plan approved by the State Forester;”

The explicit legislative text and legislative intent clearly apply only to activity conducted on private lands.

At the time of enactment, woodland management plans pursuant to section 3 of P.L.1964, c.48 , forest stewardship plans approved pursuant to section 3 of P.L.2009, c.256, forest management plans, and forest stewardship plans that were prepared for and approved by the State Forester were limited to private lands.

The Legislature wrote the text of exemption #7 and used the terms “woodland management plans” and “forest stewardship plans” and “forest management plans” and “forest stewardship plans”, including citations to prior laws that applied exclusively to private lands, not public lands.

The term “public lands” is NOT included in the text of exemption #7.

It is inconceivable that the Legislature intended to exempt “harvesting of forest products” on forested public lands from the policies, standards, and regulatory review procedures of the Highlands Act, as that would directly contradict the fundamental forestry, natural resource, and water resource protections of the Highlands Act.

Had the legislature intended to exempt activities on public lands – a huge policy decision, particularly given the significant acreage of publicly owned forested lands in the Highlands – then they would have made that abundantly clear in the text of the exemption.

The primary legislative intent of exemption #7 was to facilitate the ability of private property owners to receive farmland assessments and local property tax breaks. It was also intended to streamline reviews and avoid duplicative regulatory reviews by the DEP and the State Forester.

However, the statutory text of exemption #7 was altered and greatly expanded in scope by the DEP’s implementing regulations, NJAC 7:38.

Specifically, here is the DEP regulatory text for implementing the Act’s exemption #7 at NJAC 7:38-2.3(a)7.: (emphasis mine)

“7. Any activity conducted in accordance with an approved woodland management plan issued pursuant to the Farmland Assessment Act, N.J.S.A. 54:4-23.3, or [for public lands,] the normal harvesting of forest products in accordance with a forest management plan approved by the State Forester; “

The Department’s insertion of the bracketed term “for public lands” dramatically expands the scope of the exemption to public lands. The Department’s original basis and background document in the original rule proposal that apparently proposed this expanded scope does to public lands not provide a rationale for this huge legal and policy expansion.

I note that the DEP’s Highlands rules were last amended in 2009 and readopted without change in October of 2022. I am unable to trace the origin and scientific and legal justifications to support the insertion of the bracketed language “for public lands”.

Furthermore, the subject regulation contradicts the legislative text and legislative intent of the Highlands Act.

The Legislature in no way intended to exempt the “harvesting of forest products” and management (logging) on public forested lands in the Highlands from rigorous regulatory and public review and strict regulatory standards designed to protect the natural resources and water resources of the Highlands.

Just the opposite: the legislature passed the Highlands Act to protect Highlands forests, particularly canopy cover and large blocks on contiguous undisturbed forests, which primarily were publicly owned. The Legislature adopted more stringent regulatory standards to protect those forest resources, not broad exemptions from those standards.

In passing the Highlands Act, the Legislature found:

• “the New Jersey Highlands contains other exceptional natural resources such as clean air, contiguous forest lands, wetlands, pristine watersheds, and habitat for fauna and flora, includes many sites of historic significance, and provides abundant recreational opportunities for the citizens of the State.“
• ... the existing land use and environmental regulation system cannot protect the water and natural resources of the New Jersey Highlands
• The Legislature further finds and declares that the protection of the New Jersey Highlands, because of its vital link to the future of the State’s drinking water supplies and other key natural resources, is an issue of State level importance that cannot be left to the uncoordinated land use decisions of 88 municipalities, seven counties, and a myriad of private landowners; that the State should take action to delineate within the New Jersey Highlands a preservation area of exceptional natural resource value that includes watershed protection and other environmentally sensitive lands where stringent protection policies should be implemented; that a regional approach to land use planning in the preservation area should be established to replace the existing uncoordinated system; that such a new regional approach to land use planning should be complemented by increased standards more protective of the environment established by the Department of Environmental Protection for development in the preservation area of the New Jersey Highlands

In light of this legislative intent and the objectives, policies, and regulatory standards in the Highlands Act, the Department has engaged in an absurd interpretation of exemption #7 to apply in a way to exempt public lands from the requirements of the Highlands Act.

The Department’s Highlands rules on exemption #7 contradict both the plain language and legislative intent of the Act.

We demand that the Department close the loophole they created.

III) Authority of the agency to take the requested action

The Department is authorized to adopt the requested regulations pursuant to NJSA 13:1B-1 et seq. and NJSA 13:1D-1 et seq. (also known as the Department’s “organic authority”) and the Highlands Act.

We look forward to your timely and favorable consideration of this petition request. We reserve the right to revise and extend this submission.

Sincerely,

Bill Wolfe

Citizen

Ken Dolsky,

NJ Forest Watch

c: Senator Smith and Senate Environment Committee

Council Lacks Legislative Authorization

Advisory Role Can Not Reform DEP’s Broken NRD Program

Is It Window Dressing, Gaslighting, Or Lipstick On A Pig?

At a time when people and the Democratic Party are resisting the consolidation and abuse of unilateral executive power and Executive Orders by the incoming Trump administration, it is hypocrisy and worse than tone deaf for DEP Commissioner LaTourette to do the same thing.

Yesterday, DEP issued a Public Notice seeking nominations for members of a new DEP created “Natural Resource Restoration Advisory Council” (NRRAC):

TRENTON – As authorized by Commissioner Shawn M. LaTourette’s Administrative Order No. 2023-08, the New Jersey Department of Environmental Protection is seeking nominations of qualified candidates for consideration as members of the department’s inaugural Natural Resource Restoration Advisory Council. Nominations are due by December 31, 2024.

The “inaugural” NRRAC would have a purely advisory role and provide recommendations to the DEP Commissioner regarding implementation of the DEP’s Natural Resource Damage (NRD) program.

Yesterday, I wrote to provide the context and controversial history of the broken DEP Natural Resource Damage (NRD) program and explain why corporate polluters had crippled it.

Today, I will focus on the NRRAC aspects.

LaTourette’s Order that created the NRRAC was issued last March (2023) at a time when DEP was under severe press and public criticism – including by local officials – for a sweetheart NRD deal at the notorious Toms River childhood cancer cluster Ciba Geigy toxic site, now under control of the corporate chemical manufacturer BASF, see:

• Ten Good Reasons Why The Murphy DEP’s BASF Toms River Superfund Site NRD Deal Is A Corporate Giveaway That Must Be Withdrawn

Local government in Toms River and the people impacted by the toxic pollution blasted DEP for negotiating a sell out deal behind their backs. They also had no role in the DEP approved “restoration plan” they were forced to live with.

So, LaTourette’ Order was a response to that BASF criticism and was intended as a concession to critics.

Additionally, as part of the outrage to the corrupt Christie DEP Exxon Settlement and diversion of NRD settlement monies, NJ voters amended the Constitution in 2017 to Constitutionally dedicate NRD recovery funds and mandate that they be used locally: (DEP fact sheet)

Article VIII, Section II, paragraph 9 of the New Jersey Constitution, effective December 7, 2017, mandates that revenue from settlements and awards related to natural resource damages, collected due to environmental contamination, be credited annually to a special account in the General Fund. These funds are specifically dedicated to repairing, restoring, or replacing damaged natural resources, as well as covering legal expenses and costs associated with pursuing such claims. The use of these funds is prioritized to first address damages in the area where they occurred. If no local project is available, the funds are then directed within the same water region, and finally, statewide if necessary.

Note that the Constitutional amendment did NOT authorize or create the NRRAC.

In response to this Constitutional amendment’s prioritization of local restoration uses of NRD settlements, the NRRAC was intended to reform fatal flaws in DEP’s NRD program by providing a very limited role for the public in crafting restoration policies and program content, including identifying needed restoration projects.

But the NRRAC would have NO ROLE in the science, policy, or law of DEP’s NRD litigation strategy or NRD settlement negations, including any role in suggesting ways to enforce science based NRD standards or quantification methodologies.

But aside from this limited role, and the fact that the NRRAC was created as a political concession to DEP’s critics, consider that LaTourette’s Order was issued last March, 2023.

The chronology prompts additional questions, including:

Why did the Legislature fail to enact implementing legislation for the 2017 Constitutional amendment?

Why did it take over 6 years after the Constitutional Amendment for LaTourette to issue his Order?

Why did it take almost 2 YEARS after LaTourette issued his ORDER creating the NRRRAC to seek members for the NRRAC?

These delays certainly expose the Murphy DEP’s lack of serious commitment to reforming the NRD program.

Instead, what we have here is another public relations move by a cynical and manipulative gaslighting DEP Commissioner.

Additionally, the terms of the LaTourette Order itself explicitly gut any meaningful role for the NRRAC.

First of all, in paragraph 15, DEP arrogantly and expressly reserves the right to ignore the NRRAC.

Second, in paragraph 16, the NRRAC’s work is prospective, and can not influence any NRD cases in the pipeline. Most of the viable NRD cases have already been filed – some many years ago – therefore there will be very little new restoration work.

Third, in paragraph 17, DEP guts the scientific or legal content of any NRRAC recommendation.

Finally, the DEP is served by 48 external “Boards, Councils and Commissions”. The only one I know of that was created unilaterally by DEP Administrative Order is the Science Advisory Board. Virtually all the rest were created and authorized by Legislation.

At a time when people and the Democratic Party are resisting the consolidation and abuse of unilateral executive power and Executive Orders by the incoming Trump administration, it is hypocrisy and worse than tone deaf for DEP Commissioner LaTourette to do the same thing.

So, once again, Murphy DEP Commissioner LaTourette has engaged in promotion of toothless and ineffective public relations stunts, instead of substantive regulatory reform of DEP and DEP regulatory programs.

This particular failure to reform the NRD program by adopting implementing regulations DEP legally pledged to adopt exactly 20 years ago in a judicial settlement agreement of the SEED case is egregious and unforgivable.

Given that Commissioner LaTourette, prior to joining DEP, represented and filed legal briefs on behalf of corporate polluters that defeated DEP’s attempts to recover NRD damages borders on misconduct, corruption, or worse.

But, no doubt that LaTourette will receive praise by the typical suspects – the NRRAC will include a “environmental justice representative! whoo-hoo! – and a media that is incapable of writing a policy story.

DEP Order Emphasizes “Collaboration” With Polluters And Will Produce More Voluntary Pennies On The Dollar NRD Settlements

DEP Order Is Non-Binding And Does Not Resolve Legal Vulnerabilities

“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. ~~~ NJ Law Journal (April 2, 2015)

We need to set the context, before getting to today’s news from the Murphy DEP,  soliciting members for a new Natural Resource Restoration Advisory Council.

Over 21 years ago, Gov. McGreevey’s DEP Commissioner Brad Campbell – who I served as a policy advisor – issued an Administrative Order that announced a new, greatly expanded, and aggressive Natural Resource Damage litigation strategy, policy, and program at over 4,000 hazardous waste sites, see:

• NJDEP Policy Directive 2003-07: Natural Resource Damages
  http://www.nj.gov/dep/commissioner/policy/pdir2003-07.htm

Ooops! Sorry, you can’t see that, because the current DEP Commissioner has killed the link and erased that history.

Now, why would he want to do that?

Answer: so he can spin the public because the press and public have no context to understand why his own NRD Order is seriously flawed and his new Natural Resource Restoration Council will be lame.

But he forgot to kill the press releases that announced that 2003 Campbell initiative, see:

• DEP to Address More Than 4,000 Potential Claims for Natural Resource Damages Statewide

NEWARK —Working to recover compensation on behalf of the citizens of New Jersey for the lost use of natural resources caused by industrial pollution, Department of Environmental Protection (DEP) Commissioner Bradley M. Campbell today announced a large-scale directive to address more than 4,000 potential claims for natural resource damages statewide. In addition, Commissioner Campbell today ordered 66 responsible parties to assess and restore natural resource injuries to the Passaic River caused by 18 contaminated sites within its watershed.

Since Commissioner Campbell’s 2003 NRD Order and the filing of hundreds of NRD lawsuits against corporate polluters, the DEP’s NRD program has come under severe political and legal attacks.

Since then, multiple corporate lawsuits – including some litigated by current DEP Commissioner LaTourette representing corporate polluters – have blocked DEP recovery of natural resource damages.

Specifically, LaTourette represented Essex Chemical in a successful lawsuit, see:

• NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION v. ESSEX CHEMICAL CORPORATION

But the Essex Chemical case was not LaTourette’s only corporate polluters’ rodeo – check this one out:

• Murphy DEP Commissioner LaTourette Represented BASF As A Private Lawyer Before Negotiating A DEP Sweetheart Deal With BASF As DEP Commissioner

The ethics were so blatant, I filed a complaint with the State Ethics Commission, see:

• Ethics Complaint Filed Against Murphy DEP Commissioner LaTourette For Failure To Disclose And Recuse On Legal Work For Toxic Polluter Essex Chemical Corporation

But it gets even worse.

The DEP NRD program’s denouement was Governor Christie’s notorious 3 cents on the dollar $225 million settlement of DEP’s $8.9 billion lawsuit claim against corporate polluter Exxon Byway refinery.

In an unprecedented move, former Commissioner Campbell took to the Op-Ed page of The NY Times to blast that corrupt deal, which itself generated harsh news coverage and a scathing editorial by The NY Times, see:

• Gov. Christie Goes Easy on a Big Polluter

The primary reason for DEP losing multiple NRD lawsuits was DEP’s failure to adopt enforceable NRD regulation, particularly standards and methods to quantify and economically value natural resource injuries that formed the scientific basis for the lawsuits, see NJ Law Journal:

• Some Say NJ Had Little Choice but to Settle With Exxon

The $225 million pollution settlement between New Jersey and Exxon Mobil Corp. has been criticized as inadequate, given the state’s $8.9 billion damages claim, but some lawyers and environmentalists have questioned whether the state’s valuation of the case would have withstood judicial scrutiny. […]

But some lawyers and environmental advocates said the state’s failure to adopt a methodology for calculating damages for harm to natural resources through the formal rule-making process—as it committed to do more than a decade ago when it settled another suit—weakened its negotiating position and led to a lower settlement in not just the Exxon case but in other natural resource damage suits it has brought.

And here’s the heart of the matter, where the NJ Law Journal article gave me, quite literally, the money quote:

Wolfe said the lack of valuation rules leaves the state vulnerable to challenges on the amount of damages.

The state “knows it has a weak legal hand,” making it reluctant to push too hard and more willing to settle, Wolfe said.

Exxon’s lawyers are “sharp enough to know this” and to assume the state knows it is legally vulnerable, Wolfe said.

“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.

It’s been “a quiet little dance for 10 years,” with the state knowing it can’t get more than pennies on the dollar”, Wolfe said.

For details and links to the documents, see:

• Bungling By DEP Led To Exxon Deal

The Exxon NRD settlement scandal prompted NJ Senate Environment Committee Chairman Bob Smith to establish a legislative Natural Resource Damage Task Force. The mission of the Task Force was to recommend standards and methodologies for quantifying  and monetizing natural resource injuries.

Smith’s charge to the Task Force was to develop recommendations to the Legislature to enact science based enforceable standards and reliable methods to measure and quantify natural resource injuries and the economic value of natural resource damages. As NJ Spotlight reported:

• Lawmakers Look to Create Standard Penalties for Polluters

The state is seeking ways to shore up how it assesses damages to natural resources when polluters contaminate New Jersey’s waters, wildlife, and land.

By establishing clear and objective standards, the state would have an easier time of prying the money needed to restore drinking-water supplies, habitats, and other natural resources from the companies whose spills and other actions harmed them, environmental advocates say.

To that end, Sen. Bob Smith, the Democratic chairman of the Senate Environment and Energy Committee, said he plans to set up a stakeholder process to try to come up with a workable mechanism that would set such standards.

Based on these recommendations, Chairman Smith pledged to propose legislation.

Senator Smith’s lame attempt to establish standards for natural resource damages was killed by corporate power, see:

• Big Corporate Polluters Quietly Veto Natural Resource Damage Compensation Standards

And the DEP still has not adopted NRD regulations – mandated under an 2004 judicially approved settlement – that would define, economically value, and set standards and methods for the NRD program, see:

• Murphy DEP Lawsuit Exposes Huge Flaws In DEP’s Natural Resource Damage and Toxic Site Cleanup Programs

So, here we are.

This is the backdrop for today’s new NRD Order by Murphy Commissioner LaTourette, a lawyer with dirty corporate hands in the NRD litigation arena, who should have been sanction by the State Ethics Commission, or fired already and should at least have the common sense to recuse from all NRD issues.

None of these problems have been solved. In conclusion:

1. The DEP Commissioner’s 2023 NRD Order is not enforceable because it was not authorized by Legislation and has not been promulgated pursuant to notice and comment rulemaking. (BTW, virtually all the DEP external Advisory Councils were created by Legislation, so this Commissioner’s unilateral Order is an over-reach).

2. The new Natural Resource Advisory Council will have no teeth and will make recommendations to a fatally flawed program.

3. The provisions of the Order itself reveal that it applies only prospectively and to none of the thousands of sites DEP initiated NRD litigation way back in 2003 (see paragraphs 16 and 17).

But this post is already too long, so tomorrow we break down LaTourette’s Order and explain the prescription of failure by the new Natural Resource Restoration Advisory Council.