NJ State Clean Air Law Mandates DEP Impose An “Advances In The Art Of Pollution Control” Standard
DEP Does Not Have ANY Standard For Greenhouse Gas Emissions
Parallels To Recent US Supreme Court Ruling That Struck Down EPA Regulations
Like Supreme Court, DEP Claims Reforms Are “beyond the scope of the NJDEP’s authority”
This is a complex issue – which I will outline below – but what it boils down to is that the Murphy DEP:
1) does not have an air pollution control technology standard to regulate sources of emissions of greenhouse gases;
2) is not using their authority under NJ State law to mandate the most stringent standard that is technologically achievable for pollution sources, as required under the NJ State Air Pollution Control Act; and
3) the DEP’s proposed CO2 emissions regulation is not based on the most stringent standard allowed under the NJ Air Pollution Control Act, and it is vulnerable to legal challenges similar to the recent US Supreme Court decision that struck down US EPA’s proposed regulation of greenhouse gas emissions (plus challenges under NJ State law).
I) Background On Pollution Control Standards
The US Supreme Court recently struck down the Obama EPA’s proposed “Clean Power Plan”, a proposed regulation under the Clean Air Act (hit link to read the opinion).
The Court’s decision rejected EPA’s interpretation of a standard in the federal Clean Air Act which authorizes EPA to impose pollution control technology requirements that reflect the “best system of emission reduction” (BSER).
The Court found that EPA interpreted the BSER standard too broadly, basically to require actions that went beyond the individual pollution source to include off site and grid scale actions like energy demand management, energy conservation, renewable energy, fuel switching (from coal to natural gas), and carbon emissions trading schemes.
Similar to the federal Clean Air Act, the NJ State Air Pollution Control Act (SAPCA) has a “technology based” standard.
The NJ SAPCA authorizes NJ DEP to impose stringent pollution control technology requirements that reflect “advances in the art of pollution control” – commonly referred to as “SOTA” for “State of the Art”.
The DEP develops SOTA technology based emissions standards via consultation with an “industrial stakeholders group” (ISG). The SOTA standards are then incorporated in a “Technical Manual” (SOTA manuals) and implemented and enforced in the DEP air permit program.
II) DEP Has No SOTA Manual for Greenhouse Gas Emissions
In a July 6, 2022 email to the ISG, the DEP announced that they were updating SOTA manuals. DEP wrote:
During the meeting, the Department announced that it would begin putting together workgroups to develop a new SOTA manual for Landfills and to update existing SOTA manuals for Boilers, Engines (RICE), and Turbines. Since then, the Department has added two more SOTA manuals for updating: Graphic Arts and Surface Coating.
I have been monitoring and criticizing the DEP and ISG process because it exacerbates “regulatory capture” by providing corporate polluters undue access and influence on DEP regulations.
The DEP’s announcement that they were updating SOTA manuals presented a significant opportunity to improve and update the regulation of, among other things, greenhouse gas emissions.
Why wouldn’t DEP develop a SOTA for greenhouse gas emissions?
Recognizing this opportunity, I wrote to DEP to ask whether they have a SOTA manual for GHG emissions and if they were updating it (of course, I knew the answer to this question).
I also questioned their prior interpretation of SOTA for GHG emissions.
On July 6, I wrote to DEP to ask:
Does DEP have a SOTA Manual Workgroup for the SOTA determination regarding greenhouse gas emissions by the Department which is provided in the response to public comment below? (this is an excerpt from the air permits for the BL England power Plant. Emphases mine).
The DEP regulations define “state of the art” in pollution control (SOTA) very narrowly. According to DEP response to public comment:
“Comment: … The commenters stated that regulated GHG emissions could be reduced or eliminated by energy efficiency, reduction in energy demand, demand management, and/or renewable energy; none of these “pollution control” methods were considered. …
Response: Pursuant to N.J.A.C. 7:27-22.2, New Jersey Title V Operating Permit Requirements apply to a facility as defined in N.J.A.C 7:27-22.1. At N.J.A.C. 7:27-22.1, a facility consists of “the combination of all structures, buildings, equipment, control apparatus, storage tanks, source operations, and other operations that are located on a single site or on contiguous or adjacent sites and that are under common control of the same person or persons.” Thus, requirements for off-site measures that are not under control of the owners or operators, such as reduction in energy demand or demand management, are beyond the scope of the NJDEP’s authority to review an operating permit application. Also, the NJDEP cannot redefine a project to include renewable energy.”
This DEP rule contrasts with a far broader approach under EPA federal rules. Pollution control technology is generally understood and defined by EPA regulations:
“the term “control technology” is defined broadly to be consistent with section 112(d)(2) of the Clean Air Act to include measures, processes, methods, systems or techniques which reduce the volume of, or eliminate emissions of, HAP through process changes, substitution of materials or other modifications; enclose systems or processes to eliminate emissions; collect, capture or treat HAP when released from a process, stack, storage or fugitive emissions point; are design, equipment, work practice, or operational standards; or a combination of the above.
Obviously, “State of the Art” in pollution control for greenhouse gases MUST include consideration of energy efficiency, demand management, and renewable energy. That may require legislation or perhaps the next DEP Commissioner can issue regulations.
Appreciate your timely reply,
DEP replied to my July 6 email question today, as follows: (emphasis mine, provided upon request)
Dear Mr. Wolfe,
The Department does not have a SOTA manual workgroup for greenhouse gases. As noted in the listserv of July 6, 2022, the Department is putting together workgroups to develop a new SOTA manual for Landfills and update several existing manuals for various equipment categories. In developing these technical manuals, the Department will evaluate pollution prevention measures, the use of cleaner/safer/non-toxic/non-hazardous materials in the manufacturing processes, energy efficiency and/or process modifications and incorporate other feasible options into the SOTA performance levels. The technical research for Landfills SOTA manual will directly evaluate monitoring of Methane emissions (a Greenhouse Gas), sampling of landfill gas, and the pollution prevention measures including destruction and removal efficiency.
Let’s repeat that, and note how DEP dodged the questions I posed:
The Department does not have a SOTA manual workgroup for greenhouse gases.
First of all, DEP admits only that there have no “SOTA manual workgroup for greenhouse gases.”
That half truth omits the larger truth that DEP has no SOTA manual for GHG emissions!
The half truth also does not respond to my objection to how DEP interpreted the NJ APCA SOTA standard with respect to GHG emissions.
So let’s repeat DEP’s narrowed and flawed interpretation (source: DEP response to public comment on the BL England power plant air permit):
Response: Pursuant to N.J.A.C. 7:27-22.2, New Jersey Title V Operating Permit Requirements apply to a facility as defined in N.J.A.C 7:27-22.1. At N.J.A.C. 7:27-22.1, a facility consists of “the combination of all structures, buildings, equipment, control apparatus, storage tanks, source operations, and other operations that are located on a single site or on contiguous or adjacent sites and that are under common control of the same person or persons.” Thus, requirements for off-site measures that are not under control of the owners or operators, such as reduction in energy demand or demand management, are beyond the scope of the NJDEP’s authority to review an operating permit application. Also, the NJDEP cannot redefine a project to include renewable energy.”
Omission of a material fact is a form of lying. DEP is lying.
This is not some minor technical issue.
This is virtually the same technological, regulatory, and legal issue that was at play in the recent Supreme Court decision that struck down EPA’s Clean Power Plan rule proposal.
The NJ DEP takes the position that they have no authority to impose energy efficiency and renewable energy requirements :
requirements for off-site measures that are not under control of the owners or operators, such as reduction in energy demand or demand management, are beyond the scope of the NJDEP’s authority to review an operating permit application. Also, the NJDEP cannot redefine a project to include renewable energy.”
The NJ DEP has interpreted the federal Clean Air Act and the NJ SAPCA very narrowly, which is exactly like the US Supreme Court ruled.
This exposes all the Murphy and DEP Commissioner LaTourette rhetoric about climate leadership and aggressive GHG emission reduction goals as sham.
[End Note:
The DEP proposed a CO2 emissions rule for certain power plants – it is weak and obviously does not reflect SOTA. see:
DEP is currently responding to public comments on that CO2 emissions rule proposal and a major policy decision is pending as to whether to adopt it and if so how to respond to public comments.
Because the DEP proposal would have little or perhaps virtually no impact on GHG emissions and beaus it is highly vulnerable to legal challenge, I wrote DEP Commissioner LaTourette to urge him to withdraw and re-propose a stronger and more legally defensible rule.