Thousands of Jersey Pollution Permits Unenforcable

Anti-pollution enforcement is plummeting in New Jersey because the Christie administration is erecting procedural roadblocks to imposing fines for exceeding discharge limits, according to Public Employees for Environmental Responsibility, which is calling on the U.S. Environmental Protection Agency to step in. The state Department of Environmental Protection (DEP) is employing a "harm but no foul" philosophy in which permit conditions cannot be used as the basis of fines unless they are specified in regulation, which is almost never the case.

This enforcement-neutering approach is perhaps best illustrated in a decision by DEP Commissioner Bob Martin nullifying a $400,000 fine his own department had levied for repeat major air pollution violations by a sludge incinerator in Parsippany-Troy Hills Township. Martin's rationale was that the particular pollution discharge limit was not explicitly referenced in state regulations, even though it was mandated in federal regulations governing the Clean Air Act, which New Jersey is administering. Martin's decision also reversed a decision by then DEP Commissioner, and now EPA Administrator Lisa Jackson upholding similar fines imposed on the B.L. England electric generating facility.

While his decision was in an air pollution case, it applies to all kinds of eco-permits. It allows violators to legally avoid fines based upon DEP permits conditions not explicitly referenced by DEP regulations. In addition, DEP permit writers can now be pressured by industry lawyers using Martin's decision to oppose any condition that is not reflected in the text of the regulations.

DEP issues thousands of air and water pollution and land use permits annually. For example, the latest permit activity report showed more than 15, 000 permit applications pending, with many times more that already in effect. Each permit typically includes a dozen or more conditions specifying how the activity or facility is supposed to be conducted in order to protect the environment. Permit conditions usually include a range of requirements, such as monitoring and compliance reporting, operating conditions, restrictions to protect wildlife and, perhaps most importantly, the maximum allowable pollution discharge limits.

Not surprisingly, DEP fine revenue is falling by more than half. As this revenue in turn supports DEP inspection and monitoring of polluting industries, the result is an escalating enforcement tailspin.

"This stealth enforcement rollback sinks below minimum federal standards and puts all state residents at risk," stated New Jersey PEER Director Bill Wolfe, who is asking EPA Region 2 to exercise oversight in these federally delegated DEP programs. "Gutting pollution enforcement is not 'business friendly' - it merely tilts the economic table to favor industries that cheat or cut corners to the detriment of all of us."

Aggravating this situation is legislation signed earlier this year by Gov. Chris Christie to ban DEP reliance on guidance documents unless those manuals are codified into formal rule-making. This has the effect of banning scores of technical directives, thus depriving DEP staff of tools to ensure precision and consistency in administering permits.

"Technical guidance documents are not sexy but they are important because they are necessary equipment for accomplishing environmental regulation. This new law is like sending hockey players onto the ice without skates or sticks," added Wolfe, a former DEP analyst. "The net result, as reflected in vanishing fine revenue, is that it is becoming harder and harder to hold polluters accountable."