WolfeNotes.com

Dirty Diesel Now Included – Less Power, More Pollution

Wittenberg Knew and Failed To Disclose New Plan Publicly

BPU’s most recent approval of the South Jersey Gas Pinelands pipeline reveals that BL England (BLE) quietly made significant changes to their plans to re-power the facility.

The changes reduce the amount of power that could be generated (from 570 MW to 447 MW, a 22% reduction) and include a new dirty diesel fuel component.

The changes also alter the economics and financial risks of the project, because less power means lower revenues, smaller profits, and a lower return on investment.

More pollution means more financial risks of future carbon regulations (e.g. Obama EPA Clean Power Plan, future carbon regulations, or a future price on carbon), which are of material interests to potential investors in this $400 million fossil dinosaur.

(add these risks to the stranded investment “death spiral” risks of declining costs of energy efficiency and renewables.)

The last minute changes proposed by BL England alter the various original justifications used to support the SJG pipeline and the BL England re-powering plan and the regulatory submissions to DEP, BPU and the Pinelands Commission that formed the basis of the pipeline and BL England regulatory approvals.

It is not clear if these changes trigger permit modification requirements, particularly by DEP and EPA under the Clean Air Act permits.

(and why is EPA looking the other way as NJ DEP extends compliance deadlines an almost 10 year old 2006 NSR enforcement ACO?)

Changes effect the air quality analysis and purported public benefits originally considered by various regulatory agencies – including DEP, BPU and the Pinelands Commission.

For example, during the course of the Pinelands Commission’s review of the SJG pipeline, SJG submitted and DEP appeared before the Commission to present an air quality analysis that alleged various benefits to the Pinelands. Those analyses were flawed, but at least they were available for review and comment by the public and the Commission.

Yet those changes by BLE were kept quiet and not disclosed publicly by Pinelands Commission Executive Director Wittenberg, despite the fact that Wittenberg knew about them.

In fact, Wittenberg not only failed to disclose those changes, she wrote a letter to BPU on December 15, 2015 – the day before the BPU’s approval – claiming that from the Pinelands Commission’s standpoint there had been “no changes”. The BPU Oder states:

On December 14, 2015, the Board received confirmation from Ms. Wittenberg that nothing submitted in connection with this proceeding before the Board has changed the Pinelands Commission staff’s prior determination in the COF that the Project is consistent with the minimum standards of the CMP. (page 5)

Yet BPU Order explains that there were in fact significant changes effecting the Pinelands:

On October 9, 2015, an updated study entitled “Benefits to Pinelands Area of B.L. England Repowering: Updated Analysis” was completed to incorporate additional changes that have occurred since the October 2013 report prepared for R.C. Cape May by PowerGEM. First, the size of the repowered facility is projected to be 447 MW instead of the 570 MW that was assumed in the prior reports.

The public had no opportunity to review and comment on these changes to the re-powering plan and alleged “benefits to the Pinelands Area”, and I doubt that the Pinelands Commission was even made aware of them by ED Wittenberg

The changes were the result of recent “reliability” incentives established by the Federal Energy Regulatory Commission (FERC) to avoid spikes in energy prices created by the cold weather snap known as the “Polar Vortex” in the winter of 2014. Cold weather increased gas and electric demand at a time that energy corporations took plants off line for maintenance. The increased demand and off line power production exposed serious flaws in the system and suggested an over-reliance on natural gas as a fuel source.

The testimony of RC Cape May explains:

R.C. Cape May’s original plan was to retire both coal fired steam boilers for units one (1) and two (2) and repower with a new state-of-the-art combustion turbine and Heat Recovery Steam Generator (“HRSG”). R.C. Cape May also intended on refueling and refurbishing Unit 3. Since Mr. Maiz’s testimony, there have been delays in the construction of the repowered facility, driven by delays in obtaining natural gas to the facility. During those delays, R.C. Cape May has continued to evaluate the repowering project considering evolving market demands, obligations related to plant reliability and a desire for energy efficiency. Based upon this analysis, R.C. Cape May still plans on repowering the facility with a new combined cycle unit utilizing the steam turbine from unit two (2) with a new state-of-the-art combustion turbine and HSRG. However, it is R.C. Cape May’s intention to retire unit three (3) rather than refuel and refurbish that unit. Further R.C. Cape May intends on incorporating the combustion of Ultra Low Sulfer Diesel (“ULSD”) as a backup fuel for the combined cycle unit to maintain reliable operations in order to meet recently approved PJM, Interconnection, LLC (“PJM”) capacity performance standards. There are several existing electric diesel generators that also will be retired. The result will be a clean, efficient, economical new combined cycle unit that will be named the Cape May Energy Center (“CMEC”). Exhibit P5-A 4:9-5:5.

RC Cape May’s testimony did not face cross examination questioning by BPU staff or Ratepayer Advocate or the Pinelands Preservation Alliance. PPA was not entitled to cross examine witnesses because BPU only granted PPA “participant” status instead of full intervenor rights.

This last minute change in the BLE re-powering plan and how it was kept from the public and the Pinelands Commission is just another example of how absurd this whole review process is and how dirty the regulatory process has become.

“Queen of the Pinelands” Works for King Christie, Not Commission

The Executive Director of the Pinelands Commission, Nancy Wittenberg, has engaged in a pattern of conduct that makes a mockery of the Pinelands Commission, ignores the concerns of the public, and seriously impairs the integrity of the Comprehensive Management Plan (CMP).

This conduct includes:

• reversing a prior staff finding, backed by the Commission, that the South Jersey Gas (SJG) pipeline was inconsistent with the forest area standards of the CMP;
• determining that a slightly revised SJG application should be considered “private development” and issued a “Certificate of Filing” under the CMP, bypassing the Commission and public review procedures;
• misleading and manipulating the public and the Commission regarding various critical regulatory interpretations and alternatives and powers of the Commission;
• providing undue and improper influence to SJG and engaging in extensive private email conversations with lawyers from SJG, including allowing SJG lawyers to review, and edit regulatory documents – including her own recommendations to the Commission and the Commission’s response to public comments – before those documents were shared with the Commission;
• acting unilaterally and taking policy and regulatory positions on behalf of the Commission, without the knowledge or approval of the Commission or awareness of the public.

This pattern of conduct was repeated in the NJ Natural Gas pipeline controversy.

The Philadelphia Inquirer understands all that and yesterday wrote:

In August, Nancy Wittenberg, the commission’s executive director, issued a “certificate of filing” declaring that “the proposed gas main is consistent with the permitted use standards of the Comprehensive Management Plan,” effectively freeing it from further commission review.

Several members of the commission board have said they disagreed with Wittenberg’s determination.

Pinelands Commission Chairman Mark Lohbauer, an attorney, said after Wednesday’s BPU vote that while South Jersey Gas’ strategy for bypassing the commission appeared to be legal, “it raises the issue of whether the bylaws need to be revised.”   

“I know several commissioners feel they have a right to insert themselves in a decision of this magnitude,”  Lohbauer said. “This is not a question of someone asking to put in a driveway.”   

So, in light of this controversy, let’s establish a few fundamental propositions to set the basic parameters of this post:

1. Under the Pinelands Protection Act, the Pinelands Commisison “appoints” the Executive Director, who “serves at the pleasure of” (i.e. works for) the Pinelands Commission:

13:18A-5. Members; appointment; qualifications; terms of office; vacancies; removal; oath; reimbursement of expenses; vote necessary; chairman; executive director; veto by Governor

[a. – f.]

g. The Governor shall designate one of the members of the commission as chairman. The commission shall appoint an executive director, who shall be the chief administrative officer thereof. The executive director shall serve at the pleasure of the commission, and shall be a person qualified by training and experience to perform the duties of his (sic) office.

If the Commission can fire Executive Director Wittenberg for any reason (other than a discriminatory or related clearly improper purpose), then surely they can tell her what to do.

2. Under the Pinelands Protection Act, the Pinelands Commission is delegated the authority to propose, adopt, and repeal rules and regulations that have the force and effect of law.

13:18A-6. Powers

The Pinelands Commission shall have the following powers:

[a. – i.]

j. To prepare, promulgate, adopt, amend or repeal, pursuant to the provisions of the “Administrative Procedure Act,”P.L.l968, c. 410 (C. 52:14B-1 et seq.), such rules and regulations as are necessary in order to implement the provisions of this act; 

If the Commission can promulgate regulations, then certainly they can interpret and apply their own regulations.

The power to adopt and repeal regulations implicitly includes the power to declare a temporary moratorium on the application and enforcement of those regulations pending their update to provide adequate safeguards to meet the standards in the Pinelands Act and the CMP regulations.

3. Under the Pinelands Protection Act, the Pinelands commission is delegated the authority to adopt “bylaws” governing the operation of the Commission and its staff.

13:18A-6. Powers

a. To adopt and from time to time amend and repeal suitable by-laws for the management of its affairs;

If the Commission has the power to “manage its affairs”, then surely they can require the Executive Director to seek approval for any actions related to matters of regulation or policy of the Commission BEFORE she takes those actions.

The power to “manage the affairs of the Commission surely includes the power to review applications and apply the regulations to proposed applications, such as interpreting the regulations and applying them to a specific proposed development regulated under the CMP.

If the Commission feels that the “private development” review process was designed for, as Chairman Lohbauer suggest, a minor activity like a private driveway, then the Commission can interpret its own regulations and direct Wittenberg to apply those regulations.

If the Commission feels that a SJG seeking a Memorandum of Agreement is not appropriate policy or the correct regulatory review path, then the Commission can direct Wittenberg to apply the CMP rules for seeking a “waiver of strict compliance”.

Those are policy and regulatory decisions that are to be made by the Commission, not ED Wittenberg.

 4. The Pinelands Protection Act does NOT authorize the Commission to make a distinction between “public development” and “private development” and to create radically different review and approval procedures for “private development” versus “public development” in the CMP.

The term “private development” is not used in the Act and the concept of a distinction between private versus public development is not remotely mentioned or suggested in the Act.

5. The Pinelands Protection Act does NOT authorize the Commission to provide a “streamlined” review process or to delegate its review authority by using a “Certificate of Filing” mechanism.

The term “certificate of filing”, like “private development” is not used in the Act and the concept of streamlined review process for “private development” via a “certificate of filing” is nowhere in the Act.

6. The Pinelands Protection Act does NOT authorize the Commission to delegate and extinguish their power to review and approve or deny via voting on a development application,

The Pinelands Protection Act delegates certain powers to the Commission. The Act requires the Pinelands Commission to review and approve regulated development, subject to the Administrative Procedures Act and basic due process procedures such as public notice, public comment, and public hearings.

The legal concept of the delegation doctrine strictly limits the Commission’s ability to sub-delegate the legislative powers delegated by the Legislature to the Commission in the Act.

Quite simply, the Commission may not delegate their power to review and approve and VOTE on a regulated development to the Executive Director.

7. The Pinelands Protection Act done NOT authorize the Commission to eliminate public hearing and public comment procedures for proposed development regulated under the Act.  

Accordingly, the entire South Jersey Gas and NJ Natural Gas pipeline review process, i.e. the “private  development” and “Certificate of Filing” scheme is sham –

There is no legal authority in the Pinelands Protection Act for it and it is all made up whole cloth.

It doesn’t matter if a “Certificate of Filing” process is included in the CMP – if that process is not authorized by the Act, the CMP’s inclusion of it is ultra vires and does not authorize it.

I hope the Commissioners and competent lawyers are reading this post.

Meet BPU President Mroz, provided cover by Sustainable NJ Fraudsters

“A Better Tomorrow, One Pipeline at a Time”

BPU President Mroz was a featured speaker and presenter at the recent Sustainable Jersey awards luncheon held in Atlantic City during the NJ League of Municipalities Convention.

Gift from a reader that I could not help posting.

We’ve previously written about how South Jersey Gas is a prominent contributor to Sustainable NJ and how Mroz advocated for the corporate interests of South Jersey Gas as a member of the NJ Energy Coalition.

And how BPU funds Sustainable NJ.

Just keeping it all in the family.

Signed, sealed, and approved by the NJ Ethics Commission.

[PS, for the sustainability fans out there, take a look at NJ’s #1 ranked sustainable town!]

BPU issues “thorough” but dishonest approval

‘The only evidence [before BPU] is testimony of witnesses of the company.”

A Postscript to Paris

As expected, today BPU issued what may be the final approval for the South Jersey Gas Pinelands pipeline.

Here’s all you need to know about what went down this morning in Trenton – there were some surprises and flat out shocking developments:

1. Notoriety

In his introductory remarks, BPU President Mroz characterized 2 years of strong public opposition to the pipeline, from thousands of people, including a letter from 4 former Governor’s and a 7-7 deadlocked vote by the Pinelands Commission, as “a great amount of notoriety”.

I guess that makes his vote in favor of the pipeline “notorious”.

2. Ethics

In response to public comments suggesting that BPU President Mroz had a conflict of interest as a result of his former role with the NJ Energy Coalition, the State Ethics Commission reviewed the matter and determined that Mroz has no conflict and may participate in the matter.

Guess it’s like those ads for the Lottery – when it comes to ethics: “Anything can happen in Jersey”

3. Democracy Fail

In a remarkably blunt remark, BPU staff confirmed a critical point, flat out stating that public opposition played essentially no role in the BPU’s decision: and this is a verbatim quote:

‘The only evidence [before BPU] is testimony of witnesses of the company.”

Got that?

BPU conducts “quasi-judicial proceedings” – just a fancy legal term for “trial – like”.

You all know what this means, having read about or seen criminal cases on TeeVe where the cops illegally obtained evidence (e.g. no search warrant), which was thrown out by the Judge, allowing the guilty criminal to go free.

4. PPA Ignored

The Pinelands Preservation Alliance (PPA) was granted participant status in the evidentiary hearing before BPU. PPA submitted legal and technical documents in opposition to the pipeline.

South Jersey Gas lawyers objected to the PPA participation and argued it was not “evidence” but merely “public comment”.

Obviously, left unstated was that BPU agreed and basically knocked out PPA’s participation as legal evidence the BPU must consider.

Like the Judge disqualifying the illegally obtained evidence against the criminal.

But this time, BPU and SJG got to walk.

5. Wittenberg strikes again

BPU relied not only on the Certificate of Filing by Pinelands staff.

The Certificate was backed up by a more recent August 2015 letter – or letters, it was unclear if there were two – from ED Wittenberg, reiterating that the pipeline was consistent with the CMP.

Wittenberg wrote that that after she reviewed all the testimony from the BPU hearings, that the project was consistent.

The BPU staff went out of their way to be clear that they relied on the Wittenberg letter(s) regarding the CMP and Pinelands issues.

This appears to be an obvious attempt to insulate BPU’s approval from any legal challenge on the grounds of conflicts with the Pinelands Protection Act on the issue of the relationship between the Pinelands Act and the Municipal land Use Law.

It will also be used to defeat any arguments that BPU somehow usurped the role of the Pinelands Commission regarding determination of consistency with the CMP – BPU can argue Nancy did it.

Wittenberg plays dirty and has done everything possible to promote this pipeline.

6. BPU relied on Christie DEP – not Pinelands Commission – for environmental review

BPU noted that they “had early meetings with the company (SJG)” to review the alternative pipeline routes and relied on the DEP – not the Pinelands Commission – to review and approve the company’s selection of the pipeline route, based on environmental considerations.

BPU’s role in review and selection of the route was limited to safety and cost.

7. Mroz is intellectually dishonest – “thoroughly” cherry picks the evidence and ignores key climate concerns

After the vote approving the project, BPU President Mroz took the unusual step to read a lengthy prepared statement about his rationale for voting in favor of the project.

I won’t go into the details, all of which have been mentioned before, but will simply observe that Mroz cherry picked his “evidence” and his “public comment” and that he complete ignored the issue of climate change, social costs of carbon, and significant risks of stranded assets borne by ratepayers.

That all folks – my sense, but this was not made clear, is that the pipeline has all of the approvals necessary to begin construction (aside from perhaps minor construction permits, like road opening, etc).

BPU gives RC Cape May (BL England owner) and South Jersey Gas a big Christmas present.

Send lawyers, guns and money – the shit has hit the fan.

South Jersey Gas petition would preempt local land use reviews

Local preemption would vest sole review over Pines pipeline with BPU

Legislators asked to intervene, conduct oversight, or veto BPU decision

At the last minute, in the wake of the Paris climate accord and a week before Christmas, the Christie Board of Public Utilities (BPU) put the South Jersey Gas Pinelands pipeline on the Agenda for tomorrow’s BPU public hearing:

6. Docket No. GO13111049 – In the Matter of the Petition of South Jersey Gas Company for a Determination Pursuant to the Provisions of N.J.S.A. 40:55D-19.

Should BPU grant SJG’s petition, two things would happen:

1) local governments would be preempted from any reviews under local planning and zoning laws; and

2) the pro-gas BPU, who has already issued 3 Orders approving various aspects of the SJG pipeline, would be the agency to review the pipeline for compliance with the Pinelands Comprehensive Management Plan (CMP).

Repeat: BPU, not the independent, legislatively authorized, and technically qualified Pinelands Commission, would review, determine compliance, and vote to approve or deny the SJG Pinelands pipeline under the CMP.

This is LEGALLY ABSURD.

To make matters even worse, there is no opportunity for the public to comment at tomorrow’s BPU meeting.

So, as a last ditch effort to derail this monstrous decision by BPU, I appealed to Senator Lesniak, who has opposed the pipeline and Senate Environment Committee Chairman Bob Smith.

I’ve requested a legal opinion by the Office of Legislative Services (OLS) regarding the scope of their Constitutional power to veto Executive Branch decisions and to hold legislative oversight hearings of BPU’s decision.

The BPU’s decision to preempt local MLUL powers has statewide implications and the preemption in the context of there Pinelands Act is a major prededential decision virtually certain to face legal challenge.

Dear Senators Smith and Lesniak:

As you know, the NJ Constitution’s  Article V, section IV, paragraph 6 power applies to executive branch rule making (text below).

Has OLS considered the application of this Legislative power to actions by the Board of Public Utilities (BPU)? Could BPU decisions be construed as “rules” within the meaning of this Article?

Tomorrow, the BPU is scheduled to consider a petition, filed by South Jersey Gas for a Determination Pursuant to the Provisions of N.J.S.A. 40:55D-19 – preemption of municipal land use review powers under the MLUL.

This is the Pinelands pipeline – because the Pinelands Commission issued a “Certificate of Filing”, should BPU approve this petition by SJG then BPU would have dispositive final approval powers over the pipeline, subject ONLY to the STAFF review by the Pinelands Commission, not the vote of the full Commission.

Is the BPU’s determination in this matter subject to Legislative oversight?

Is the BPU’s determination in this matter subject to Legislative veto pursuant to  Article V, section IV, paragraph 6 powers?

We urge your immediate attention to this matter,

Respectfully,

Bill Wolfe

6.   No rule or regulation made by any department, officer, agency or authority of this state, except such as relates to the organization or internal management of the State government or a part thereof, shall take effect until it is filed either with the Secretary of State or in such other manner as may be provided by law.  The Legislature shall provide for the prompt publication of such rules and regulations.  The Legislature may review any rule or regulation to determine if the rule or regulation is consistent with the intent of the Legislature as expressed in the language of the statute which the rule or regulation is intended to implement.  Upon a finding that an existing or proposed rule or regulation is not consistent with legislative intent, the Legislature shall transmit this finding in the form of a concurrent resolution to the Governor and the head of the Executive Branch agency which promulgated, or plans to promulgate, the rule or regulation.  The agency shall have 30 days to amend or withdraw the existing or proposed rule or regulation.  If the agency does not amend or withdraw the existing or proposed rule or regulation, the Legislature may invalidate that rule or regulation, in whole or in part, or may prohibit that proposed rule or regulation, in whole or in part, from taking effect by a vote of a majority of the authorized membership of each House in favor of a concurrent resolution providing for invalidation or prohibition, as the case may be, of the rule or regulation.  This vote shall not take place until at least 20 calendar days after the placing on the desks of the members of each House of the Legislature in open meeting of the transcript of a public hearing held by either House on the invalidation or prohibition of the rule or regulation.

[Update – close of business, 5 pm:

I sent the Lesniak/Smith letter to PPA, Sierra Club, Environment NJ, and Food and Water Watch this morning asking for support.

Didn’t get the respect of a reply, except from Lena of FWW.

I think they all just are afraid to be associated with my name – the Yes Men stunt was probably the last straw.

Cowards.

But noted that PPA did send out an alert to their members, but with no mention of any effort to lobby legislators.

[Update #2 – both Sierra Club and PPA have effusively and publicly praised Senator Lesniak for his opposition to the pipeline, so why wouldn’t they publicly call on him now for support?

PPA:

Even worse than the hastily called Judiciary Committee meeting is the fact that Senate President Sweeney chose to replace a committee member, Senator Lesniak (who was vacationing), with Senator Van Drew. Senator Lesniak has been an outspoken advocate against the pipeline and the nomination of Robert Barr. Senator Van Drew, as mentioned above, is an outspoken supporter of the pipeline. Senator Lesniak tried to return in time for the vote but by then he had already be replace by Senator Van Drew and it was Senator Van Drew’s vote that passed Barr out of the Judiciary Committee.

Sierra Club:

“This is not just about the pipeline, that’s just one issue, but the future of the Pinelands in South Jersey,” added Jeff Tittel, Director of the New Jersey Sierra Club, who said he’d received a letter from Lesniak saying he supports Jackson’s work on the commission and continues to support him.

More from Sierra Club, who suggested a “purge”:

Sen. Raymond Lesniak, D-Union, an opponent of the pipeline, was absent from the Tuesday vote. Sweeney replaced him with project proponent Sen. Jeff Van Drew, D-Cape May.

Sweeney said the change was routine.

“Lesniak had told us he wasn’t coming so we substituted for him. If he really wanted to come, he could have been there, but it wouldn’t have changed the outcome,’’ Sweeney said.

Jeff Tittel, state director of the Sierra Club, said Barr taking the place of Robert Jackson, who was not reappointed after opposing the pipeline, demonstrated that “the governor is trying to get rid of all the commissioners who opposed the pipeline and this is part of that purge.’’

They even generated a favorable Star Ledger editorial praising Lesniak:

How did Barr clear the hurdle this time? Sweeney got curiously lucky that Sen. Raymond Lesniak (D-Union) happened to be late for the vote, so his spot on the committee was filled by Sen. Jeff Van Drew (D-Cape May).

Unlike Lesniak, Van Drew supports the pipeline, which will run 22 miles — mostly through the forest and on the shoulder of Route 49 – and feed natural gas to the B.L. England power plant in upper Cape May County.

Lesniak has gotten a lot of mileage out of his Pinelands pipeline opposition – he should be called on and deliver help when crunch times like BPU’s vote come along.