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It Was A Great Day for the Pinelands

Climate and Anti-pipeline activists gaining momentum

We had a minor but significant victory today in the Pinelands.

In response to many months of repeated public demands that the Pinelands Commission consider climate change impacts on the Pinelands and amend the Comprehensive Management Plan (CMP) to address climate and energy policies, today Commission Chairman Lohbauer announced that the Planning and Implementation Committee (P&I) would begin to consider the issue during their December meeting.

Lohbauer noted that Commissioner Lloyd also expressed support for that initiative and he asked staff to prepare briefing materials to begin that discussion for the December P&I meeting.

Lohbauer’s remarks today mark a significant change by the Commission.

The move follows intense discussion at last month’s meeting, when the Commission went into executive session to discuss whether they had legal authority to address climate change in the CMP. Presumably, given Lohbauer’s announcement, the answer to that legal question was yes, the Commission does have the authority.

Previously, Executive Director Wittenberg stressed that the CMP lacked standards to consider climate and legal Counsel Roth stated that the Commission lacked jurisdiction to address climate change.

In prior testimony and correspondence, we have urged the Commission to address a comprehensive set of climate and energy policies as amendments to the CMP, including:

• reduction of greenhouse gas emissions, or mitigation. The NJ Global Warming Response Act already sets a deep 80% reduction goal that could serve as a starting point;
• the science of impacts of climate change on the Pinelands, including a monitoring program;
• adaptation strategies to current and projected climate change impacts;
• promotion of energy efficiency and renewable energy;
• infrastructure policies that strongly discourage fossil infrastructure and require lifecycle carbon emissions analysis;
• land use review policies and practices that include net zero carbon building standards and offset requirements.
• Administrative moratorium on review of major fossil infrastructure or greenhouse gas emitting projects pending adoption of CMP safeguards.

Today, I reminded the Commission that they had previously acknowledged jurisdiction and the importance of climate change and promoting renewable energy in the April 2011 CMP amendment regarding solar: 

We look forward to the December P&I meeting and encourage readers to send supporting ideas, science and policy proposals to the Commission for consideration between now and then.

Today’s Hearing

The Commission’s hearing room today was packed, and 20 people provided almost 2 hours of testimony, most of which opposed the South Jersey Gas and NJ Natural Gas pipelines current pending approvals.

The testimony included calls to address climate change, to consider President Obama’s rejection of the Keystone XL pipeline and Gov. Cuomo’s veto of the Port Ambrose offshore LNG project, and to declare a moratorium on pipeline reviews.

“Times are changing” was the constant refrain and appeal to the Commission to change with the times and respond to public demands.

There was more excellent testimony on the fabricated military need for the NJ Natural Gas pipeline. That pipeline would not serve the Joint Base, but would provide enough gas to double the current number of NJNG residential and commercial consumers.

I reiterated my call for a halt to review of the NJNG application pending a referral and investigation by the NJ Attorney General’s office of potential fraud or misconduct, particularly in submitting and certifying a false application to the Commission.

There was an in depth interrogation of the question of exactly how we have arrived at the current “bizarre” situation with the South Jersey Gas pipeline by attorney Arnold Fishman, who called BPU a “shill” for SJG (a “bizarre” situation I have called “legally absurd”).

In an almost courtroom like interrogation, Fishman asked detailed questions on exactly what the basis for the Certificate of Filing was and how the prior findings of inconsistency with the CMP were reversed. Fishhman pinned down regulatory officer Chuck Horner, who repeatedly evaded and obfuscated the “primarily serve only the Pinelands” standard, at one point causing Chairman Lohbauer to intercede on his behalf and in the process make an embarrassing mistake by saying that that standard did not apply (which he later apologized for).

Former California utility power engineer George Hay noted multiple large energy projects in the region. He objected to what appear to be anti-competitive market manipulation practices, opposed how SJG subsidizes investor risks with ratepayer money, and connected many dots, from the Philadelphia “energy hub” concept to the Wolff & Samson law firm’s involvement, suggesting potential corruption on a scale of Bridgegate, United Airlines “Chairman’s flights”, and Atlantic City airport investigations. He called for a two year time out to sort these issues out.

In an  unusual move, a reporter from the Press of Atlantic City even stood up during the public comment period to ask the commission why it was going into executive session to discuss broad issues about the SJG pipeline review process (previously, Chairman Lohbauer stated that the Commissioner would go into executive session to discuss a letter from Carleton Montgomery of PPA regarding the Commission’s role and the review procedure for the SJG pipeline).

All in all, it was quite a day – we need to keep up and expand the pressure.

It clearly is working – the Commission seemed on it heels today.

Case Illustrates How Christie DEP Is Gutting Exceptional C1 Stream Buffer Protections

I just came across this Appellate Division opinion upholding DEP’s determination of the presence of a Category One (C1) stream and application of 300 foot buffer requirements to a proposed development.

DEP portrayed the C1 regulation they proposed to repeal as seriously flawed with respect to identifying streams. They relied heavily on alleged mapping flaws and “confusion” regarding how C1 streams were identified, both in the rule proposal and especially in recent Senate testimony.

So, I thought I’d share this Court decision in a very brief post, because it sheds a completely different light on DEP’s claims.

This opinion is directly relevant to the DEP’s claims and it shows that the DEP claims are false.

It may also be helpful in Monday’s hearing on SCR 180 by the Assembly Environment Committee.

During the Senate Environment Committee testimony on October 19, there was strong disagreement between DEP and environmental groups, especially regarding the elimination of buffer protections on headwater and intermittent streams.

DEP insisted that they were not eliminating any protections and environmentalists strongly disagreed.

The Appellate Division decision is directly on point and illustrates that DEP was wrong and misleading the Senate:

The intermittent stream exists without definable bed and banks but is identifiable as a linear depression, commonly referred to as a “swale.” The Stormwater Management Rules do not require that a perennial or intermittent stream be defined by bed and banks in order to have a SWRPA established. N.J.A.C. 7:8-5.5(h)1.1 states: “A . . . special water resource protection area shall be provided on each side of the waterway, measured perpendicular to the waterway from top of bank outwards or from the centerline of the waterway where the bank is not defined . . . .” (emphases mine)

In direct contrast to C1 streams, the Flood Hazard Act stream encroachment rules and “riparian zones” do not apply to a stream without a defined bed and bank or to a”swale”. Those streams would NOT be protected by a 300 foot riparian zone buffer.

Therefore the repeal of C1 buffers in the stormwater rules and replacement by a “riparian zone” buffer in the Flood Hazard rules would eliminate protections, as we’ve argued all along.

The Court upheld DEP’s C1 stream identification, concluding:

In summary, we are satisfied that DEP properly applied N.J.A.C. 7:8-5.5(h), that it properly limited the use of the Web Soil Survey, and that its finding of an intermittent stream on the property and its C-1 determination is supported by credible evidence in the record.

The Court’s decision was based on the following:

 Ray Cantor and Assistant Commissioner Kopkash must know this.

BPU Exempted Politically Connected Plant From Societal Benefits Charge

Another “Chairman’s” Deal?

I’ve asked the Chairs of the Senate Environment and Legislative Oversight Committees to look into how and why BPU exempted the BL England power plant from the Societal Benefits Charge (SBC).

SBC revenues fund important energy programs:

The two biggest chunks of the program involve efforts to finance clean energy programs ($309 million in the 2012 budget) and efforts to help low-income families pay their utility bills (at least $292 million), according to numbers provided by the New Jersey Board of Public Utilities. The low-income program has grown dramatically since the state passed a law ensuring that those families do not pay more than 6 percent of their household income on energy bills.

The BPU exemption was worth millions of dollars over the life of the plant. It included other surcharges as well, such as RGGI (the Gov. had announced NJ’s exit from RGGI) and other surcharges with which I am not familiar.

RC Cape May (owner of the BL England plant) was represented at the time by the politically connected law firm Wolff & Samson, the notorious “Chairman’s” firm. So, this could be another in a long list of corrupt deals.

Some questions I have:

Does the BPU have the authority to grant such exemptions? What is the public policy rationale for such exemptions? How widespread is the practice? Was this a special deal or is the practice common? How much revenue was lost as  a result?

See letter below:

Dear Chairmen:

As you may know, a BPU Order of April 29, 2013 exempted the BL England power plant (owned by RC Cape May) from Societal Benefits Charges. see:

https://web.mail.comcast.net/service/home/~/?auth=co&loc=en_US&id=606201&part=3

Here is the exemptions from the BPU Order:

I am not an expert on BPU or their authorities under the Statute that authorizes the Societal Benefits Charge (SBC) but I find it highly unusual administrative practice to see an administrative agency waiving what I assume are statutorily imposed and mandatory surcharges.

I also find the BPU action in this matter poor public policy and not in the public interest.

From what I can tell in reviewing the various documents, it seems that South Jersey Gas Company and RC Cape May privately negotiated a contract that exempted RC Cape May from the SBC.

It appears that BPU’s subsequent Order of April 29, 2013 incorporated this privately negotiated contract provision.

I urge you to conduct legislative oversight of this matter.

Was this exemption case specific or does BPU broadly engage in granting such exemptions from SBC?

Respectfully

[PS – The BPU order not only addresses exemptions for BL England and it does not apply to only BL England.

Gas Pipelines Are Climate Bombs

PennEast Alone Would Result In More GHG Emissions Than Entire NJ Power Sector

A friend just sent me a video of a presentation by Princeton Hydro to the 2015 Watershed Conference on some of the environmental impacts of the PennEast pipeline – it is excellent (watch here) – but, remarkably, climate impacts are not addressed.

[Note: I was the architect of the C1 regulations that Princeton Hydro emphasizes – which just might explain why I am totally isolated from the advocacy efforts.]

I’ve not followed that pipeline closely, other than to recommend various regulatory tools that I think can kill the pipeline (similar to the narrow role I’ve played in the Pinelands pipeline debates).

Obviously, there is a big difference between what I view as the strongest regulatory tool to kill a pipeline and what is the most important issue or impact of the pipeline.

But one thing that jumped right out from the Princeton Hydro presentation was the pipeline’s capacity: 1 billion cubic feet per day.

That’s a lot of gas.

So, I wondered what the climate change impacts of all that gas would be.

Does the NEPA Environmental Impact Statement quantify the greenhouse gas emissions?

To get a rough estimate, I did a quick Google of US Energy Information Administration’s Carbon Dioxide Emissions Coefficients.

These are emissions factors based on combustion of the fuel natural gas – they are 119.9 lbs/1,000 cubic feet of gas.

I rounded that up to 120 lbs/1,000 CF of natural gas.

The numbers are staggering –

And these do not include the upstream lifecycle emissions from methane – from the fracking well and pipeline network – which has far greater warming potential than CO2.

If 1 billion cubic feet of gas are burned, according to EIA emission factors, that would produce 120 million pounds per day of CO2 emissions.

That translates to 21.5 million tons per year of CO2 emissions.

Readers, please correct my math if I’ve made a mistake (I don’t show all my work, but the conversions are very straightforward: 2,000 lbs = 1 ton – 365 days = 1 year).

That is huge and more than the emissions from NJ’s entire in state energy sector. [For context and ballpark estimates, see NJ DEP’s greenhouse gas emissions inventory – most recent data is old, 2009).

Just to put these emissions in context, if the pipeline emissions of GHG were regulated under RGGI, that would amount to about $45 million per year in emissions allowances that PennEast would be required to purchase every year.

If PennEast were to pay the “social costs of carbon” in all that gas, that would cost the company maybe $2 billion per year.

Which brings us to the question:

Why is climate change not even on the agenda of most of the pipeline opponents, including the “Rethink Energy NJ” communications strategy?

Just maybe the stability of the global climate, the lives of millions of people, & the future of agriculture and industrial civilization are more important than open space or the property rights of  wealthy Hunterdon County residents?

Maybe?

Another rollback of a longstanding and effective protection for clean water

Incredibly, DEP is proposing a rule that they KNOW will increase the probability of NJPDES permit violations at sewage treatment plants and that the KNOW will reduce the number of plans required to correct deficiencies and better protect water quality.

The DEP has gotten a lot of criticism and media attention for recently proposing major overhauls of two critical clean water rules: the Flood Hazard “stream encroachment” rules and the Water Quality Management Planning rules (“WQMP).

But lost in the shadow of the controversy over those major rules, is DEP’s proposal to seriously weaken a little known, important, effective, and highly technical program called the “Capacity Assurance Program” (CAP).

The purpose of the CAP is to protect clean water by preventing violations of sewage treatment plant permits related to excessive wastewater flows.

Each sewage treatment plant is designed to handle a certain flow of wastewater.  Every DEP sewage treatment plant permit includes limits on flows and the volume of plant discharge to a stream or river to protect drinking water or the aquatic life of the river.

Flows are the foundation of the entire system.

Wastewater flows to a sewage treatment plan can vary based on things like when people flush their toilets and take showers, rainfall, snowmelt, or as a result of infiltration and inflow to the pipes in the collection system.

The basic idea is that as a sewage treatment plant approaches its permitted capacity, the risks of excessive flows and permit violations increase, because there is less “cushion” or slack in the system. For example, if a sewage treatment plant is designed and permitted to treat 10 million gallons per day (MGD) and the actual flow is only 5 MGD (50% of capacity), there’s a lot more ability to handle variations in flow than if the flow is 9 MGD (90% of capacity).

Here’s how DEP describes the current CAP Progam:

The Capacity Assurance Program assesses how a treatment plant owner will prevent a plant from exceeding its permitted design flow capacity. This program is required when a treatment plant’s actual and permitted flows exceed 80% of the permitted design capacity.

If a treatment plant fails to meet its NJPDES discharge permit limits, it can adversely impact the waterway it discharges into, threatening drinking water supplies and the habitat of aquatic plants and animals. To prevent further harm, a sewer ban is implemented in the areas served by the affected treatment plant. This measure protects the receiving water from additional damage until the problem can be corrected. To avert the need for a sewer ban, the Capacity Assurance Program serves as a planning tool which is implemented when committed flows (anticipated flow from permitted projects not yet constructed) reach 80% of a treatment plant’s permitted design capacity. This helps treatment plant owners decide how a plant’s remaining flow capacity will be used and whether an equipment upgrade is necessary to assure future capacity.

Under current rules, a Capacity Assurance Plan includes important planning and water quality protections: (DEP proposal at page 4)

The capacity assurance program under the existing rule must include, at a minimum: measures for water conservation; maximization of treatment capacity at a minimum cost; reduction of infiltration/inflow (I/I) where appropriate; construction of improvements; disconnection of roof leaders, sump pumps, and other sources of inflow into sanitary sewer lines and their connection into storm sewer lines where available and to the extent feasible; submission of a WQM007 form on a quarterly basis; and preparation for the imposition of a self- imposed sewer connection ban.

Water conservation is always a good thing. As is reduction of I/I and the threat of a sewer connection ban is a big stick that is sure to get people’s attention.

The Christie DEP is proposing to significantly weaken the current CAP Program in three ways:

1) increasing the 80% trigger for requiring submission of a “capacity assurance plan” to 100%. That virtually guarantees that some percentage of sewage treatment plants will violate their permits and threaten water quality and drinking water. The definition of flow is also changed in a way that will reduce the flows and avoid the trigger for submitting a CAP plan;

2) increasing the current 3 month period for determining whether the 80% threshold is exceeded to a 12 consecutive month period. DEP’s own analysis shows the this will significantly reduce the number of sewage treatment plants that must submit a capacity assurance plan; and

3) shifting the requirement to submit a CAP from the current joint  approach where municipalities and the sewer authority are required to submit plans to only the sewage treatment plant. This will undermine protections because both towns and sewer authorities must take actions to implement a CAP.

The Department claims to justify this by an analysis and finding of a “weak” correlation between exceedence of the current 80% threshold and actual sewage treatment plant permit violations.

But even a “weak” 0.19 statistical correlation between exceedence of the 80% threshold and actual permit violations will still result in a significant increase in permit violations at the sewage treatment plants.

The DEP also knows that the proposed changes will result in far fewer CAP Plans submitted:(proposal at p. 13)

Based on the above evaluation, the Department determined that 68 percent of the facilities (129 of 189 facilities) would have triggered the CAP rule requirements at the existing threshold of 80 percent committed flow to permitted flow over a three-month period, and 18 percent (34 facilities) would trigger the requirements if the average reported flow over 12 consecutive months exceeded the permitted flow.

Incredibly, DEP is proposing a rule that they KNOW will increase the probability of NJPDES permit violations at sewage treatment plants and that the KNOW will reduce the number of plans required to correct deficiencies and better protect water quality.

As DEP’s own CAP program summary states, these violations would “adversely impact the waterway it discharges into, threatening drinking water supplies and the habitat of aquatic plants and animals.”

The DEP’s own rule proposal documents these threats:(proposal at p. 20)

the CAP requirements have in ensuring hydraulic overloads that could result in violation(s) of the treatment plant’s NJPDES permit discharge limits or unpermitted discharges are avoided. Improperly maintained and operated treatment works create the potential for adverse environmental impacts and serious health risks, such as those resulting from raw sewage overflows into basements, storm sewers, and waterways, as well as the release of untreated or partially treated sewage into the surface and ground waters of the State.

The DEP proposal is incredibly short sighted and will undermine the DEP’s ability to prevent permit violations and protect water quality and cause more NJPES permit violations.