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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:

• Murphy DEP’s Proposed New Greenhouse Gas (CO2) Emission Rule Is Far Weaker Than Obama EPA Clean Power Plan

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.

After Years Of Greenwashing, A Good Investigative Reporter Forces Environmental Cheerleaders To Speak Out

Murphy DEP Governs By Press Release

“While Governor Murphy was one of the nation’s strongest environmental champions in his first term, now is not the time for him to rest on his laurels,” said Ed Potosnak, Executive Director of the New Jersey League of Conservation Voters (4/27/22)

Bob Hennelly, longtime investigative journalist and current columnist at InsiderNJ, has a very good column on the Murphy climate and environmental policy record, including numerous failures by the Murphy DEP, see:

• Murphy’s Paper Thin Climate Change Agenda

I’ve written about virtually all the issues Bob tackles, so I want to make a few important points to provide history and context in order to clarify and expand upon what’s going on.

Most importantly, Bob’s sources in the environmental community are a big part of the problem (with the exception of Jeff Tittel, who is retired and probably pitched this story to Bob. That knowledge, coupled with Bob’s good investigative journalism skills, framed the narrative, asked the right questions, and essentially forced the environmental leaders to critically portray the Gov. and DEP’s performance, which they’ve been reluctant to do for years. Bob smoked them out! Bravo!).

But in this column, Bob mischaracterizes those sources as “subject matter experts” (I would not call them that. In fact, I think they are incompetent – and that’s certainly true on the DEP regulatory issues.)

Those sources focus on the historical cuts to the DEP budget and staff levels. Accordingly, this leaves the misleading impression that the primary problem is due to lack of DEP staff.

That’s simply not the case.

Gov. Murphy is a Wall Street corporate Democrat with no real public policy or governing experience. His Gov.’s Office staff – judging by the plethora of Executive Orders which are written and read like press releases – apparently also lack “subject matter expertise” and regulatory experience.

The Governor has rhetorical commitments to climate, energy, and environment, not policy commitments. That’s a huge difference that’s been conflated and spun and allowed to persist – or even been reinforced – by the environmental groups who support him. They always appear at Murphy press conferences and willingly let themselves be used as props and cheerleaders.

Gov. Murphy’s DEP Commissioner is a former corporate lawyer who parades as a “diverse” gay pride community activist. He is a weak manager and his policy vision is essentially Neoliberal corporate oriented.

The combination of a pro-economic development and shallow PR dominated Governor, an inexperienced Gov.’s Office staff, and a weak DEP Commissioner – on top of a lack of real substantive policy commitments – is the source of the problem, not the DEP budget.

Here are some more specific points of context or clarifications of Bob’s column:

1) While Bob cites very recent criticisms, the climate and environmental groups have been cheerleaders for Gov. Murphy and his inept former corporate lawyer DEP Commissioner for the complete first term. That greenwashing cemented the current false narrative that Bob’s column begins to puncture;

2) Some of the environmental groups Bob quotes (i.e. members of the “Keep It Green” coalition) duped the public into approving an open space funding referendum that diverted millions of dollars from DEP’s budget (staff and programs) to open space, including their own organization’s budgets. It is the height of hypocrisy to now blame cuts to DEP’s budget.

3) There is no indication or evidence that I am aware of that any lack of staff at DEP has slowed down their rubber stamping of hundreds of permits to polluters and developers. DEP has plenty of staff to promote economic development;

4) drafting of regulations is not staff intensive and NOT impacted by DEP budget or staffing levels. I know. I actually worked on and wrote many DEP regulations. The lack of action and delays are POLICY and MANAGEMENT problems, not budget and resource problems;

5) It is incredible that someone who poses as an “environmental leader” (i.e. Ed Potosnak) can criticize DEP for his friend’s absurd rental of contaminated property for a DAY CARE CENTER! Let’s call Ed “Kiddie College 2.0″;

6) The DEP toxic site cleanup program was PRIVATIZED. Environmental groups never seem to complain about that. (Democratic Gov. Corzine signed the privatization law in 2009. Corzine DEP Commissioner Lisa Jackson was embarrassed by that and forced to pledge not to seek privatization of federal Superfund during her US Senate confirmation hearing as Obama EPA Administrator (read the pointed questions by Senator Boxer). Like the current DEP Commissioner, Jackson played the NJ ENGO’s like a fiddle. Democratic Gov. Murphy made it worse in 2019 amendments. Not a peep of opposition about any of this from NJ ENGO’s.)

7) There is no evidence I am aware of that any environmental group participated in the budget process or pressured the Gov. or legislature to increase DEP’s budget. Instead, they have served as sycophants in various “Stakeholder” processes

(Astonishingly, Hennelly quotes Amy Goldsmith from Clean Water Action on the DEP budget. Amy is incompetent. Amy and Kim Gaddy of CWA have been GOv. Murphy’s biggest cheerleaders, appearing at numerous events and gaslighting real EJ and climate activists. Here they are together:

8) The EJ law is riddled with loopholes and is a cruel joke.

9) The current DEP Commissioner is a former corporate lawyer. He is a gaslighter and fraud. The NJ ENGO’s have never criticized that corporate background. Worse, recently the ENGO wrote a June 21 letter to Gov. Murphy that was such craven bullshit it almost made me puke:

We wish to commend the work of the New Jersey Department of Environmental Protection, NJDEP Commissioner Shawn LaTourette and countless NJDEP staff on this initiative. It is to their credit that the proposed emergency rules were strengthened in the immediate wake of Hurricane Ida early last fall (following on the heels of damage from Tropical Storms Henri and Elsa last summer) to reflect this new normal in inland flooding across the state.

10) I worked for 13 years at a policy level at DEP, drafted and worked on many regulations, and spent another 20 years in NJ ENGO community, so I know what these frauds and idiots who call themselves “environmental leaders” obviously don’t.

Commission Allows Gov. Office to Dictate Policy And Control Regulation

An Independent Commission No Longer Exists

Murphy’s Corporate Appointments Put Gov. In Total Control

I was just stunned by reading the Pinelands Commission’s June Monthly Management Report.

I was stunned by how openly they admit that they have completely surrendered political power and control over policy to Gov. Murphy.

This is contrary to the law and longstanding practice.

Under the law that created the Commission – The Pinelands Protection Act – the Pinelands Commission is established as essentially an independent regional planning and regulatory agency. (The Act also recognizes and incorporates federal law and a federal representative is on the Commission, thus federal power further reduces the power of the NJ Governor.)

The Act explicitly emphasized the Commission’s independence and shields the Commission from Executive branch and DEP influence:

Under the Act, the Commission is delegated comprehensive land use planning and regulatory powers.

In contrast, the Gov. is granted limited powers:

• the power to appoint 7 members of the Commission (who must be qualified and approved by the Senate and do not constitute a majority of the 15 member Commission),

• the power to appoint the Executive Director (who is not a policymaker, but instead reports to the Commission),

• a negative power to veto the minutes of the Commission to block action (see:  NJSA 13:18A-5).

• The Gov. may also appoint a Citizens advisory Committee with which the Commission is required to consult in developing the Comprehensive Management Plan (CMP) (see NJSA 13:18A-10).

• The Act also requires that the CMP be submitted to the Governor – after it is adopted – but does not say anything about the Gov. having any review or approval powers over it or any role in the substantive content of the CMP and implementing regulations (and certainly not pre-proposal review)

“[T]he Governor’s authority is limited to that delegated to him by the Legislature” in the Act. Dalton, supra, 213 N.J.Super. at 575, 517 A.2d 1224;see also Brown, supra, 62 N.J. at 5–11, 297 A.2d 572 (upholding delegation against constitutional challenge). (NJ Supreme Court)

As such, the Pinelands Commission has positive powers to initiate and craft plans, enact policies, and adopt regulations to protect the natural resources of the Pinelands.

Historically, Governors have selectively politicized the Commission, generally on specific or high profile issues of concern to the Governor, or on appointments.

But that power and influence have been selective, discreetly exercised, and masked.

The Commission has largely maintained its independence, attempted to insulate its professional staff from political pressure, and sought to avoid overt politicization and deference to the Governor.

The erosion of the Commission’s independence and the balance of power between the Commission and the Governor began to change under Gov. Christie and is now rampant, systemic and overtly acknowledged.

Just check out how the Commission staff now openly admit that the Gov. is calling the shots. Here’s a blurb from the June Management report on the long delayed Kirkwood-Cohansey water use regulations (emphases mine):

This is an astonishing abdication by the Pinelands Commission and a usurpation of power by Gov. Murphy.

The total politicization of the Commission was apparent when Gov. Murphy rammed through his recent appointments to the Commission of his corporate friends.

Again, we told you so:

The Star Ledger editorial board excoriated Gov.Murphy’s nominations of these individuals as “a craven power play”, a “brazen” attempt to “gut the Commission during lame duck”, and a “scheme” that was similar to the “bullying” by Gov. Christie.

Biden Throws In The Towel From The Shores Of Oil Giant Saudi Arabia

A Day That Will Live In Infamy

We were never fooled, and have been writing and warning from day one that Biden was a climate fraud, see:

• The Proof Is In – Biden Is A Climate Fraud

• Biden Is A Climate Fraud

But I must say that to have Biden himself grovel in his own weakness and corruption was beyond our cynical imagination.

Today, the NY Times reports:

• Biden Concedes Defeat on Climate Bill as Manchin and Inflation Upend Agenda

There are so many things wrong with the NY Times cover story that I don’t now have the time or patience to respond.

But, exactly as I predicted, the Supreme Court decision is falsely portrayed by the NY Times and it provides cover:

2. It [the Supreme Court’s decision] lowers expectations for the upcoming Biden EPA regulations, thus allowing Biden to blame the Court in much the same way he blames Joe Manchin and the Republicans for his failures.

[Update: 7/20/22 – see “Joe Manchin As Alibi” ~~~ end update]

And that Biden collapse was announced from none other that the heart of the global oil empire, “bone saw” Saudi Arabia: (NY Times)

Mr. Biden made the announcement from Saudi Arabia, where he flew on Friday to press the region’s oil giants to pump even more crude onto global markets.

Here’s a comment I’ve been trying to submit (without success) on that NY Times article:

When Biden said “America is back”, he meant as a military Empire.

Biden also promised Wall Street that “nothing fundamentally will change”.

This catastrophe was locked in when Bernie and AOC co-opted the Sunrise Movement and climate activists to support the fake Biden climate plan.

We said this from day one. Too bad so many good people got duped.

This has little to do with the fall guy Joe Manchin, who Chuck Schumer and obviously “bi-partisan” Joe Biden installed as Chair of Senate Energy and Environment.

To throw in the towel from a repressive military oil State will live in infamy.

We’re done. 

We’re doomed.