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Exactly Like Trump EPA Rollback, Murphy DEP Rule Ignores CO2 Emissions

Exactly Like Trump EPA Rollback, Murphy DEP Rule Based Exclusively On Efficiency

Trump EPA “Heat Rate Improvement” (HRI) Same Technical Efficiency Measure as DEP

This is remarkable hypocrisy

The Murphy DEP recently adopted 2 new rules as part of rejoining the Regional Greenhouse Gas Initiative (RGGI).

One rule deals with the allowance trading program and one rule deals with the allocation of RGGI money.

I finally got around to reviewing the second rule regarding allocation of RGGI money and was shocked by what I found buried at the end of that rule.

In that RGGI rule, the NJ DEP quietly adopted regulations that set specific numeric standards for electric power generating units, see –  7:27D-3.1 State-of-the-art electric generating facilities (page 14)

While these rules deal with eligibility for RGGI money and technically are not codified as air pollution control standards, here’s why I was so shocked.

First of all, it is absurd that fossil power plants are eligible for receiving RGGI money. RGGI is designed to reduce CO2 emissions, not subsidize them.

Second, this RGGI rule making provided an opportunity for NJ DEP to incorporate the Obama EPA Clean Power Plan (CPP) CO2 emission standards in NJ DEP regulations. The Murphy DEP did not do so.

Third, instead of adopting the Obama EPA CPP CO2 standards in NJ DEP rules, the Murphy DEP rejected regulation of CO2 emissions and instead adopted the same flawed approach as the Trump EPA, limiting the application of regulation to individual plant combustion efficiency, not CO2 emissions. 

As we all know given the massive media coverage, the Trump EPA recently repealed and revised the Obama EPA “Clean Power Plan” (CPP).

That grossly irresponsible move was blasted by, among many others, Murphy DEP Commissioner McCabe.

In a June 19, 2019 “Statement“, McCabe condemned the Trump EPA rule as a “betrayal” (full “statement”):

“The Trump Administration’s so-called Affordable Clean Energy rule is a betrayal of America’s future generations. By encouraging more coal-fired power generation, this federal action flies in the face of the scientific evidence that burning fossil fuels is causing climate change and harming the health of our people. Instead of facing up to the urgent challenge of reducing carbon emissions, as New Jersey and many other states are doing, the Trump Administration is taking us backwards.”

McCabe is flat out lying here, as I will show below.

NJ is not regulating CO2 emissions from power plants.

DEP just had an opportunity to adopt the Obama EPA Clean Power Plant CO2 emission standards in NJ regulations but did not do so.

Instead, NJ DEP just adopted rules that are virtually the same as the Trump EPA rules.

Here is the argument in a nutshell, which is expanded upon and documented below by excerpts and links to the specific applicable EPA and DEP regulations.

I) The Obama EPA Clean Power Plan Was Based on and Set National CO2 Emission Standards

1. The Obama EPA CPP rule set national standards for CO2 emissions from new or expanded power plants that State’s were required to meet (existing power plants were also regulated, under a separate rule).

State’s were given flexibility in how to meet these national CO2 emission standards, not only at the individual power plant level but across the entire power sector.

The Trump EPA rule summarized State options provided by the Obama EPA rule (see Trump EPA rule (at page 10)

2. The Obama EPA CPP national CO2 emission standards were EPA’s determination of what is known as the “Best System of Emissions Reductions” (BSER).

3. Obama EPA CPP found that BSER for fossil power plants was calculated based on CO2 emissions per energy output produced, expressed as pounds (lb) per megawatt hour (MWh)

See Table 1 on page 64512 for the specific standards for CO2 emissions rates for specific types of fossil fueled power plants:

• pulverized coal  – 1,400 lb/MWh)
• modified or reconstructed steam generating units – 1,800 – 2,000 Lb/MWh
• new gas plants – 1,000 b/MWH

The takeaway and fundamental points are that Obama EPA rule regulated and set national standards for CO2 emissions.

Combustion efficiency was one tool to contribute to meeting these national emission standards.

Read the Obama EPA Rule – Clean Power Plan (CPP) – “Best System of Emissions Reductions” (BSER)

II) Trump EPA Rule Abandoned Regulation of CO2 Emissions and Is Based Solely On Combustion Efficiency

The Trump EPA rule repealed the Obama EPA CPP and replaced it with a rule called the Affordable Clean Energy (ACE) rule.

The fundamental basis for the Trump EPA ACE rule is based on combustion efficiency at the individual plant, not the entire power sector.

In contrast to the Obama EPA CPP rule, the Trump EPA rule is NOT based on CO2 emissions and does not set national CO2 emission standards.

The Trump ACE rule is based exclusively on combustion efficiency, described by the technical term “heat rate improvement”  (HRI).

Trump EPA Rule -Affordable Clean Energy (ACE)

III) The Murphy DEP rule does not consider CO2 and is based solely on combustion efficiency

The Murphy DEP recently adopted 2 new rules as part of rejoining the Regional Greenhouse Gas Initiative (RGGI). One rule deal with the allowance trading program and one rule deals with allocation of RGGI money.

I finally got around to reviewing the second rule regarding allocation of RGGI money and was shocked by what I found buried at the end of that rule.

In that RGGI rule, the NJ DEP quietly adopted regulations that set specific numeric standards for electric power generating units, see –  7:27D-3.1 State-of-the-art electric generating facilities (page 14)

The promulgation of these new DEP regulations provided an opportunity for NJ DEP to adopt the prior Obama EPA CPP rules and CO2 emission standards.

NJ DEP could have simply adopted the Obama national CO2 emission standards as the minimum CO2 emissions standards to demonstrate “State of the Art” (SOTA) under NJ DEP air pollution regulations.

However, the Murphy DEP decided NOT to incorporate the Obama EPA CPP CO2 emission standards in NJ DEP SOTA or RGGI regulations.

Worse, instead of adopting the Obama EPA CPP national CO2 emissions standards as NJ SOTA, the DEP adopted new standards that ignore CO2 emissions and are based solely on combustion efficiency.

The NJ DEP combustion efficiency standards are exactly the same approach as the Trump EPA ACE rule. That approach ignores regulation of CO2 emissions and instead is restricted to improving the efficiency of fossil fuel combustion.

The NJ DEP rule also applies only to the individual power plant. Again, exactly like the Trump EPA rule.

Murphy DEP Commissioner McCabe may try to look aggressive by blasting the Trump EPA rules as a “betrayal”, but her own agency’s rules are based on exactly the same flawed approach (combustion efficiency) and also ignore CO2 greenhouse gas emissions.

This is remarkable hypocrisy.

Even more incredible is the fact that these DEP power plant combustion efficiency rules were adopted as part of the RGGI rules regarding allocation of RGGI auction proceeds. hose rules were mandated by the Global Warming Solutions Fund Act.

That is a stealth regulatory policy on a fundamental issue.

You can read the DEP rule by citing the link below and reviewing the excepted text of the rule.

Murphy DEP Rule – 7:27D-3.1 State-of-the-art electric generating facilities (SOTA)

As a preface to this post, I must note that for philosophical and analytical reasons, I reject the dominant role of economics and reliance on markets in public policy decisions, particularly on energy and climate issues.

Morally, we have no right to threaten the future of civilization, which is where we are headed in the accelerating climate catastrophe.

The natural world has inherent values that transcend market economics and human utility.

Markets also undermine democracy and equity (and beauty, truth and meaning).

Technically, there are multiple “market failures” that destroy the foundational assumptions of the market model: – e.g. price signals ignore externalities; public goods; monopoly; corporate power; captured role of government; regulatory, technical and information barriers to effective competition; advertising and the myth of the sovereign consumer;  private property rights; et al. And on top of all that, there is a huge concentration of wealth and power that discredit market solutions:

With that said, let’s get to the topic of this post.

For months – years even – NJ Spotlight and other NJ media outlets have run countless stories about the multi-billion cost of off shore wind and how that would bankrupt the state, drive out jobs and private investment, and regressively harm poor people who can’t afford high energy costs.

We got similar exaggerations of the costs of RGGI, but far less coverage – and crocodile tears – for the ratepayer costs of the nuclear bailout, the guarantee of revenues and profits from reductions in energy demand due to energy efficiency, or the cumulative costs – including the social costs of carbon – of all the proposed and current gas pipelines and gas power plants. How much does all that cost?

Well, last Friday, BPU approved the first 1,100 MW off shore wind project and subsidies.

So, let’s check out the cost, in terms of ratepayer impacts.

NJ Spotlight reported:

For New Jersey ratepayers, however, the actual cost paid will be far less — $46.46 MWh — when the energy and capacity revenue produced by the wind farm is refunded to utility customers. It means the estimated monthly impact will be an increase of $1.46 for residential, $13.05 for commercial, and $110.10 for industrial customers, according to the state Board of Public Utilities, which approved the project on Friday.

Peanuts!

The credibility  of those who grossly exaggerated the cost of wind is shot, no?

US Forest Service Study Led To Highlands Act, But Not National Forest Designation

US Forest Service “Forest Health” Program A Pretext For Logging

USFS and NJ DEP ignore climate change in forest management

Although the NJ Highlands were mapped by a US Forest Service Study – which provided the major justifications for the Highlands Act – NJ is one of only 10 states that have no National Forests.

Ironically, that may be a good thing, as the Trump administration’s US Forest Service becomes increasingly subservient to logging and extractive industry special interests nationally:

The new categorical exclusions in these proposed rules are huge and far from risk-free. Large logging projects, which could devastate vulnerable habitat, and road-building in pristine wildernesses would be among those escaping rigorous environmental review.

For just one recent egregious example, the NY Times reports today on a massive mining proposal that would poison the Boundary Waters Canoe Area Wilderness:

the Forest Service called off an environmental review that could have restricted mining, even though the agriculture secretary had told Congress that the review would proceed.

More specific to the logging topic of my post today, however, I just read a story about USFS plans to log national forest, under the pretext of the North Bridger Forest Health Project.

Because that USFS logging project sounded so much like the euphemisms and slogans used to support NJ DEP’s plans to log Sparta Mountain and other NJ Highlands Forests (i.e. “treatments” “forest thinning” “resilience” “forest health”, etc), I thought I’d look into the details and get an understanding of exactly how USFS justified this crap.

In reviewing the details of the USFS logging, I confirmed what I expected, based on NJ DEP’s forestry program:

1. Despite the science and urgency, USFS forest management is not subject to any laws, regulations, standards, policies, or management practices regarding climate change.

While NJ DEP denies this huge flaw via silence, the USFS admits that, directly and right up front:

Regulatory Framework

There are no applicable legal or regulatory requirements or established thresholds concerning management of forest carbon or greenhouse gas emissions. (See: NEPA Categorical Exclusion, p.2)

2.  Water Quality and stream buffer protections are even weaker then NJ DEP BMPs

USFS relies on 15-50 foot stream buffers, but based on stream classification and extremely steep slopes (>35!), buffer can be increased to 100 feet (see Appendix A of NEPA scoping document, and table below):

That is weaker than DEP’s lax water quality and stream buffer BMP’s.

3. USFS Logging is based on the same “forest health” rhetoric and “science” that NJ DEP relies on

I had seen this similarity several times before, and lazily just assumed it just came from the PR people in the logging industry and the forestry bureaucrats in USFS and NJ DEP.

But today, I hit a few links to the decision documents and traced the legal and policy source of some of these Orwellian euphemisms.

(and keep in mind that the justification I discuss here came in 2014, years before the recent western and California wildfires, which focused public attention on forest management and provided their own cover stories and justification for the need for “treatments” and “fuel management” to avoid “wildfire at the urban-wildland interface”).

In the project overview in the NEPA scoping document, I found this as the source that initiated the logging project:

Buried in Appendix C, I learned the following about that 2014 Farm Bill – including a process for Governor’s to request USFS designation of forests:

Here are the national Insect and Disease Designations.

I was surprised and disappointed  to learn that NJ Gov. Cuomo requested designation of 3,000 acres of the Finger Lakes national Forest and USFS did so. I wonder how that project is working out?

As NJ has no national forests, the Governor of NJ requested no designations.

Just think if the Highlands were a National Forest – then NJ DEP’s Highlands logging program would be greatly expanded, given even more resources, and subject to federal control. Guess we dodged a bullet, eh?

4. Government moves like lightning when special interests are greasing the skids

Some say that government bureaucracy moves too slowly and that NEPA review injects huge delays in development (you hear that all the time, especially from those that would exploit and extract natural resources and develop and destroy the environment).

But, check out the accelerated action timetable involved in this national forest designation process, which leads to logging:

• On February 7, 2014, President Obama signed the 2014 Farm bill;
• The Secretary of the U.S. Department of Agriculture delegated authority to implement the provisions of the Farm Bill to the Chief of the Forest Service on March 6, 2014.
• On March 19, 2014, USDA/USFS solicited designations from the nation’s Governors;
• On April 8, 2014, NY Gov. Cuomo replied and requested designation
• Montana Gov. Bullock was even faster than Cuomo. He replied on April 7, 2014
• On May 20, 2014, USDA/USFS approved the Montana designation request
• USFS rolled out the Custer Gallatin NF Montana Project on September 14, 2017
• USFS issued a NEPA Scoping Document Nov. 27, 2017
• USFS issued a NEPA Categorical Exclusion on March 14, 2018

That’s damn quick for developing a new and controversial national program.

So, government can move very quickly when special interests are pulling the strings.

Ironically – and thankfully – the project is being blocked by litigation challenging USFS NEPA “Categorical Exclusion”.

DEP and EPA cleanup standards are based on local land use planning and zoning

Ringwood Ford and Pompton Lakes Dupont Toxic Sites Latest Examples of Abuse

A new corrupt tactic in the chemical industry driven strategy to weaken NJ’s toxic site cleanup laws and DEP regulations and thereby save billions of dollars in cleanup costs is focused on local government.

The tactic allows local governments – who lack the scientific expertise and legal authority –  to effectively gut State DEP and federal US EPA cleanup standards.

This local tactic stands the law on its head, as both Congress and the NJ Legislature enacted laws like Superfund and NJ Spill Compensation and Control Act that set state and federal standards that put US EPA and NJ DEP in charge of cleanup decisions, not local government.

Specifically, few people realize that US EPA and DEP’s toxic site cleanup standards are based on local land use planning and zoning. Those local plans and zoning designations govern the use of a site, and thereby, influence the potential exposure of people to toxic chemical at those sites.

Follow the logic:

1. DEP sets cleanup standards based on risks to human health.

2. Risk to human health is a function of, among other things, exposure potential.

3. Exposure potential is a function of, among other things, the land use of a site.

For example, a residential site results in human exposure to any toxics on site 24 hours a day, 365 days per year.

In contrast, a commercial or industrial site has far less human occupancy and far less human exposure.

4. Accordingly, DEP cleanup standards are categorized as “residential” and “non-residential” categories. (see DEP soil remediation standards for “residential” and “non-residential” land uses). The standards vary by orders of magnitude.

Which brings us to two recent examples that illustrate a disturbing development, whereby corrupt local governments conspire with polluters to revise local land use master plans and zoning ordinances in ways that subject polluters to lax DEP cleanup standards and thereby let polluters off the hook for billions of dollars in cleanup costs.

Why would a legitimate local government- motivated by a desire to protect the health and welfare of their residents and environment – want to relax cleanup standards and reduce a corporation’s cleanup costs?

This corrupt abuse must stop.

The Legislature, Governor and DEP must get involved to prevent further abuses.

Let me provide 2 recent abuses of what is a statewide problem.

Ringwood – Ford

The US EPA recently let Ford off the hook for a permanent complete cleanup at their Ringwood Superfund site.

Environmental groups and the Ramapough nation are objecting to this corrupt EPA deal, and calling on NJ DEP to extend the public comment period. But they miss the underlying cause of the problem and it’s statewide nature.

In Ringwood, EPA agreed to change the original costly “preferred remedy” – the complete excavation of toxic waste – to a far cheaper, minimal, and far less protective typical “pave and wave” cap. It was  explicitly acknowledged by EPA that this deal would save Ford some $30 million in cleanup costs.

Basically, the Ringwood local government decided to locate a recycling center on a portion of the Ford toxic site, which changed the land use and risk assumptions and thereby provided cover for US EPA to gut their own “preferred remedy”.

I explained how local land use impacted US EPA’s sellout, see:

• EPA Reply To Criticism Of Ringwood Superfund Cleanup Deal Raises Additional Concerns

• EPA’s Last Minute Bait and Switch In Ringwood Superfund Site is a Blatant Abuse That Can Not Stand

The Bergen Record reports today that EPA has “decided” to allow the Ford Motor Company to get away with a cynical scheme to avoid millions of dollars in cleanup costs and leave thousands of tons of toxic sludge in the ground, posing permanent risks instead of permanent remedies, see:

• EPA could allow Ringwood to build recycling center on top of contamination

In fact, EPA’s own Superfund program manager openly admits that Ford has proposed a scheme:

Opponents of the plan, including many members of the Ramapough Lenape Nation who live next to O’Connor, say the recycling center is nothing more than a way for Ford and the borough to get out of an expensive cleanup.

Even the EPA official who is allowing the capping plan agreed. “I have no doubt that’s the motivation,” said Walter Mugdan, an EPA official in charge of cleaning up Superfund sites in New Jersey and New York. “It’s certainly a very plausible view.” …

“I was unhappy to get this plan at the 11th hour and 59th minute, but it’s not my job or the U.S. government’s job to be in the business of local land use,” Mugdan said.

This corruption is sickening – for US EPA and the Murphy DEP to go along with it adds insult to injury.

Pompton Lakes – Dupont

I’ve called the Pompton Lakes Council the most corrupt local government in NJ.

Their recent decision to rezone the Dupont toxic waste site is further evidence of that.

The Bergen Record exposed the corruption, see:

• New zoning proposed for Pompton Lakes’ DuPont site raises concerns over cleanup

POMPTON LAKES — Zoning changes up for Borough Council approval Wednesday night would remove residential use from the list of future options for the polluted DuPont tract, raising concerns that the site may not be cleaned to stricter standards. …

But some former and current residents say that rezoning the property would allow Chemours to perform a less comprehensive cleanup.

“It’s basically saying that the property is not going to get a full cleanup,” said Helen Martens, who has lived for four decades in the neighborhood south of the plant where DuPont solvents have contaminated groundwater and vaporized into some homes. “We’re going to have to continue to live in fear that this pollution will still be up there.”

The New Jersey Department of Environmental Protection’s standards for soil cleanups are much stricter for residential development. 

For instance, cleanup standards for soil contaminated with the solvent PCE is more than 35 times as stringent if property is zoned for residential use rather than commercial. The standards for TCE and mercury are three times more stringent, and the standard for lead is two times more stringent. All of these contaminants have been found at the former DuPont campus, nestled in a valley alongside Acid Brook on the north end of town.

These abuses by corrupt local governments are happening across the state, as towns rezone land to reduce cleanup costs and put the health of their residents and local environments at risk.

These abuses must stop, which will require a change in law.

But, the NJ Legislature is beholden to protecting the polluters and promoting real estate development, not protecting the people and environment.

And the NJ ENGO’s are either AWOL or missing the target.

No words, just photos, just after sunrise on June 16, the day after an extreme hailstorm, from Ophir, Colorado (and isn’t that the coolest post office?)