Lees Ferry – Marble Canyon – Colorado River – another awesome place.
North Rim of the Grand Canyon is closed until June 2 due to heavy snow, so we’ll miss it this year. No other words today.
Bouy can barely walk, but he still loves the water! This could be his last hurrah:
Gas Storage Caverns Pose Huge Risks To NJ Communities
Expansion Of Fossil Infrastructure Contradicts NJ Global Warming Response Act Goals
DEP Rules Make A Mockery Of Gov. Murphy’s Climate Commitments & Exec. Orders
DEP Commissioner Recused From Decision Because He Represented Gas Industry
On Monday May 1, 2023, the Murphy DEP quietly adopted new regulations that would allow for the expansion of storage of highly flammable and explosive gases in underground “caverns”.
In the nation’s most densely populated State, what could go wrong?
I suggest people and the press read the DEP rule adoption document to get a flavor for the harsh public criticism DEP received and see for yourself the DEP’s lame responses to those criticisms.
The poster child for the catastrophic risks these gas storage “caverns” pose to nearby communities and the climate emergency was the 2015 blowout at the Aliso Canyon cavern in California.
There was no self congratulatory press release touting the “historic” and “first ever” new DEP rules.
In an unusual move, the new rules were legally adopted by DEP Deputy Commissioner Moriarty, not DEP Commissioner LaTourette who is legally empowered to sign off on regulations.
The DEP press office surely did not highlight the fact that DEP Commissioner LaTourette was forced to recuse from the regulatory process because he previously served as private lawyer for one of the gas storage cavern corporations, Delaware River Partners LLC.
LaTourette’s former clients in the gas industry praised the DEP rules: (rule adoption, page 13)
2. COMMENT: The rules are the culmination of a considerable and concerted effort by Department staff and those in the regulated community to craft a protective and workable regulatory framework. There is a decades-long history of safe operation of underground storage caverns in New Jersey at Repauno and at a third-party facility in Linden. Given current market trends and international energy needs, underground storage caverns present a unique opportunity to serve as a driver of local and regional economic growth. The commenter asserts that it is uniquely situated to comment on the rules given its experience with managing and operating an underground storage cavern and its participation in the stakeholder process used to develop the rules over the past several years. (26) 26. David Miller, Giordano, Halleran & Cielsa, P.C., on behalf of Delaware River Partners LLC
That’s really all you need to know. The gas industry loves it. The DEP’s “protective regulatory framework” protects their profits and assures continued operation and allows expansion. Period.
The rules allow expansion of the current fossil fuel infrastructure and promote the growth of natural gas supply and therefore will result in continued and huge new greenhouse gas emissions, including methane which is 80X more potent climate warming than carbon dioxide.
DEP did not quantify or even consider the greenhouse gas emissions and climate impacts in the May 16, 2022 rule proposal, which got virtually no media coverage when it mattered (i.e. before the public hearing and the close of the public comment period).
DEP did not include requirements for the gas industry to quantify greenhouse gas emissions from the “caverns” and the lifecycle green house gas emissions from the gas storage at the facility.
The DEP did not include allowable greenhouse gas emission standards for gas storage “caverns”.
Instead, DEP created a fake appearance of consideration of climate issues via a misleading “climate change impact assessment” (see: N.J.A.C. 7:1F-2.4).
That “climate change impact assessment” is fatally flawed and a meaningless fraud.
It is limited to mitigation of climate impacts and therefore allows continued operation and expansion of gas storage (i.e. the rules do not provide a scientific basis for or regulatory authority for DEP to prohibit or limit GHG emissions).
It merely requires the consideration of the following factors, which do NOT include mandatory quantification of greenhouse gas emissions or the warming potential of those emissions or the relationship to the GHG emission reduction goals of the NJ Global Warming Response Act: (see page 104-106):
[Update 5/8/23 – On the embarrassing glaring conflicting storm event standards and climate fail, I sent this email to DEP Commissioner LaTourette:
Dear Commissioner Latourette:
Are you aware of the fact that the Department’s proposed Flood Hazard Area regulation storm event standard (and flood elevations) conflict with the the Department’s adopted 100 year storm standard in the Underground Storage Caverns rule?
In addition to this glaring conflict, please explain how the Underground Storage Caverns rule considered greenhouse gas emissions, limited those emissions, and is consistent with the emission reduction limits and the legislative intent of the NJ Global Warming Response Act.
The rules apply to cavern systems that are used for the underground storage of any natural or artificial gas, or any petroleum product or derivative of any petroleum product. Many of these substances are extremely toxic or flammable, which could impact the surrounding public, if involved in an incident. A release of a toxic substance could form a vapor cloud that may cause severe health effects, if inhaled. An incident with a flammable substance could result in a fire or explosion, which could impact the public by radiant heat or an overpressure wave.
But the DEP did not propose any enforceable standard with respect to “unacceptable risk” that would provide a science based regulatory standard necessary to deny a new permit, permit renewal for an existing facility, or a permit modification for expansion of the storage capacity of an existing cavern.
The rules also include privatization of the permitting process, by requiring that the gas industry hire a “third party” – and – remarkably – allowing the gas industry to determine if that third party is competent and independent:
7:1F-2.5 Third-party evaluation
(a) The owner and operator of an underground storage cavern system shall engage a third party to independently review the feasibility study as required at N.J.A.C. 7:1F-2.1, the design and construction submittals as required at N.J.A.C. 7:1F-2.2, and the process hazard analysis as required at N.J.A.C. 7:1F-2.3.
(b) The owner and operator shall determine and document that the third party meets the following competency and independence requirements:
These new rules got very limited and meaningless press coverage, so there is little public awareness, e.g. see NJ Spotlight story, which came almost 3 months after the rules were proposed and safely AFTER the June 9 Public hearing and the July 15 close of the public comment period (so the public could no nothing with the information):
But to some advocates, the proposed new regulations, if passed as currently written, would be deeply antithetical to the Murphy administration’s efforts to reduce greenhouse-gas emissions and to become a national leader in the environmental justice movement. Instead, they say the rules change offers an invitation for the oil and gas industry both to expand in New Jersey and to further exacerbate pollution and the burdens of climate change in some of the state’s most vulnerable communities.
In contrast, I post my initial analysis immediately – the day the rules were proposed – explicitly to educate the public and empower their participation in and opposition to the proposal:
Today, the Murphy DEP proposed new regulations that would govern DEP permitting of new and existing facilities for the underground storage of natural gas and other petroleum products.
I suspect that DEP will spin these rules as updating or modernizing outdated permits or regulations based on an ancient 1951 law. DEP will use the LNG restriction to obfuscate and divert.
But make no mistake, just the opposite is the case: in fact, the proposed rules effectively promote expansion of fossil infrastructure,protect existing permits, and continue a dangerous practice that should be banned.
Underground storage caverns are part of the fossil infrastructure network. Although DEP fails to even mention this or analyze the need for this infrastructure capacity, California regulators analyze the need for storage capacity and explain the role of underground storage:
This is all just insane.
More to follow – so I’ll close now with a line from one of my favorite movies, Cool Hand Luke:
What we have here is a failure to communicate.
Murphy Administration Has Promoted Expansion Of And Failed To Regulate Methane
DEP Has Serious Leadership And Ethics Problems
Bill Potter has an important Op-Ed today at NJ Spotlight, read the whole thing:
Bill’s emphasis on the role of methane in the climate emergency can not be over-stated.
But he left out important context and pending methane regulatory decisions by the Murphy administration, including new pipeline and gas infrastructure approvals. For an analysis of those projects and their climate impacts, read the Empower NJ report:
Bill also did not mention the failure of DEP’s recently adopted environmental justice and power sector carbon dioxide emissions regulations to address methane. Both rules do not apply to methane at all.
DEP also abandoned the proposed fossil boiler replacement rule, a huge concession to the fossil industry.
And on May 1, 2023, the Murphy DEP just adopted a massive carbon infrastructure expansion program, the so called “Underground Storage Caverns”. That initiative has gotten no media coverage or opposition by climate activists as far as I know. I wrote about the details in this post:
So, it’s not just Murphy administration lawsuits that fail to consider methane.
But in addition to the methane issue, I wanted to highlight important issues implicit in Bill’s tangential mention of DEP’s Natural Resource Damage (NRD) lawsuits, an issue I’ve written about extensively. Bill notes (emphasis mine):
Ultimately, the antagonists are likely to settle before the case can be heard, which has its own set of risks. Recall the “natural resources” damage suit against ExxonMobil that claimed more than $7 billion in cleanup costs to remedy decades of contamination but ended in a pennies-on-the-dollar settlement of $225 million, ordered by Gov. Chris Christie.
Yes, it is very likely that DEP will settle both the climate and NRD lawsuits for pennies on the dollar, and for many of the same reasons (in addition to those noted by Bill in his Op-Ed – see this NJ Law Journal expose:
I sent my friend Bill, who I’ve admired and worked with for decades (including the victorious Hopewell ELSA sewer line extension and the Mercer County incinerator lawsuits!), this note to suggest additional DEP legal and ethical weaknesses:
Hey Bill – nice job and thanks for doing that!
The pennies on the dollar NRD settlements are baked into the flawed DEP NRD program, and there is little leadership at the top to bolster the DEP’s legal prospects.
Commissioner LaTourette successfully litigated NRD lawsuits representing corporate chemical industry (let me know if you want case citations) and he also previously represented BASF as a private attorney, a conflict he failed to disclose and he also failed to recuse from – veery troubling given his high profile public role in the DEP’s NRD settlement with BASF at Ciba-Geigy Toms River.
US Supreme Court Justices Clarence Thomas, Chief Justice Roberts, and Neil Gorsuch are not the only ones with ethical problems!
And the consumer fraud claims put DEP on even thinner ice.
Be well,
Wolfe
After The Fact Exemption Issued Based On A Federal Habitat Plan
Another Huge Loophole That Must Be Closed By Legislation
(Caption: Source, NJ DEP Land Use Enforcement)
I’ve filed several Open Public Records Act (OPRA) requests to DEP in an attempt to get the real story about what went on in DEP’s controversial clearcut of the Glassboro Wildlife Management Area (WMA).
The more I keep digging, the worse the situation gets, as DEP slow walks and responds in dribs and drabs.
Yesterday, I learned that the Gloucester County Soil Conservation District (SCS) issued an after the fact exemption to DEP from State soil conservation and sediment control requirements:
Since 1976, New Jersey has required the management of soil erosion and stormwater from virtually all non-agriculture, construction-based soil disturbances through its adoption of the NJ Soil Erosion and Sediment Control Act (N.J.S.A. 4:24-39 et seq). Implemented by the Department of Agriculture (NJDA) and the state’s soil conservation districts, (Districts) the Act requires all construction activities greater than 5,000 square feet to be developed in accordance with a plan to control erosion during construction. The plan must also ensure that erosion will not occur once construction is completed.
The SCS did not issue any enforcement action because the DEP project was exempt from SCS permit requirements!
Imagine that: clearcutting over 20 acres (a million square feet) of forested wetlands, removing the stumps, and bulldozing the land is exempt from NJ soil erosion and sediment control permit requirements designed to protect wetlands, water quality and conserve soils.
The DEP only contacted and sought the review of the SCS after the fact because the DEP land Use Enforcement Order required DEP to do so.
According to an April 10, 2023 email from Karol Blew of the Gloucester County Soil Conservation District to DEP, the DEP’s Glassboro clearcut project was exempt from soil erosion and sediment control permit regulations and standards:
“As discussed at the March 21, 2023 Site Meeting, the District is aware the current soil disturbance in the Glassboro WMA is for creation of American Woodcock Habitat, and in conjunction with the “American Woodcock Conservation Plan”, USDA/NRCS American Woodcock: Habitat Best Management Practices for the Northeast, US Fish and Wildlife Service American Woodcock Population Status, 2022 and Glassboro Wildlife Management Area, Woodcock Habitat Creation. Therefore, the District was able to approve a Request for Determination of Non-Applicability for this soil disturbance. A copy is attached to this email. Should you have any questions or would like to schedule a site visit, please let me know. I can be reached at this email address or via phone (856) 589-5250.”
I called Ms. Blew this morning to clarify the after the fact issuance of the “Determination Of Non Applicability” (which DEP failed to provide) and understand the basis for this exemption (a term she used). I was told that it was based on the DEP’s reliance on a USDA/NRCS American Woodcock: Habitat Best Management Practices for the Northeast.
[See End Note below. Something is not right here.]
Karol Blew of SCS told me that the project was exempt from SCS permit requirements, but sill subject to the SCS technical standards. Ironically, the standards emphasize planning:
“He who fails to plan, plans to fail….” is an oft-quoted proverb. Its original author is unknown, but it is frequently attributed to such famous individuals as Benjamin Franklin, Abraham Lincoln and Winston Churchill. Regardless of who coined the phrase, failure to plan (properly) is never more evident than in a poorly thought out erosion and sediment control plan.
….. Effective erosion control should be integrated into planning for stormwater management, and not done as an after-thought.
In addition to not seeking SCS review and approval BEFORE conducting the destructive clearcut and bulldozing, DEP failed to consider or comply with any SCS standards or requirements.
Obviously, the DEP clearcut and land clearing did not comply with the minimum SCS requirements, like installation of a silt fence. But that gross and knowing non-compliance did not trigger SCS enforcement.
On related loopholes, as I’ve previously written, DEP staff and managers, all the way up to Assistant Commisisoner Dave Golden, insisted that the clearcut of forested wetlands and site bulldozing was exempt from DEP land use and wetlands permit and regulatory requirements.
Even now, after I’ve reviewed dozens of DEP emails and documents, it remains unclear who or why the DEP changed its regulatory interpretation and decided to enforce wetlands violations.
It appears that management intervention – only after critical press reports – by Commisioner LaTourette and/or Deputy Commisioner Moriarty is what changed the DEP’s assertion of exemptions from land use/wetlands requirements and triggered enforcement.
So, this is another loophole that must be closed by Legislation. For other major loopholes, including pre-emption of local land use and other municipal ordinances, , see:
I wrote Senator Smith and other legislators to demand that they do so:
———- Original Message ———-
From: Bill WOLFE <>
To: senbsmith <SenBSmith@njleg.org>, sengreenstein <sengreenstein@njleg.org>, “kduhon@njleg.org” <kduhon@njleg.org>, asmmckeon <asmmckeon@njleg.org>, “asmScharfenberger@njleg.org” <asmScharfenberger@njleg.org>, “emile@njconservation.org” <emile@njconservation.org>, Jaclyn Rhoads <jaclyn@pinelandsalliance.org>, Ruga Elliott <elliott@njhighlandscoalition.org>, Anjuli Ramos <anjuli.ramos@sierraclub.org>, “Taylor McFarland, NJ Sierra Club” <taylor.mcfarland@sierraclub.org>,
Date: 05/03/2023 3:05 PM MST
Subject: Legislation request – Glassboro WMA clearcut
Dear Chairman Smith – I understand that you are working on legislation to implement the recommendations of your Forestry Task Force, so I will limit the scope of this specific narrow request at this point in time to other related issues not addressed by the Task Force that were exposed by the DEP Glassboro clearcut.
According to an April 10, 2023 email from Karol Blew of the Gloucester County Soil Conservation District to DEP, the DEP’s Glassboro clearcut project was exempt from soil erosion and sediment control regulations and standards:
“As discussed at the March 21, 2023 Site Meeting, the District is aware the current soil disturbance in the Glassboro WMA is for creation of American Woodcock Habitat, and in conjunction with the “American Woodcock Conservation Plan”, USDA/NRCS American Woodcock: Habitat Best Management Practices for the Northeast, US Fish and Wildlife Service American Woodcock Population Status, 2022 and Glassboro Wildlife Management Area, Woodcock Habitat Creation. Therefore, the District was able to approve a Request for Determination of Non-Applicability for this soil disturbance. A copy is attached to this email. Should you have any questions or would like to schedule a site visit, please let me know. I can be reached at this email address or via phone (856) 589-5250.”
I strongly urge you to close this loophole and subject all habitat and forestry management projects to soil erosion and sediment control requirements.
Whether this issue would best be a stand alone bill or incorporated in your comprehensive forestry legislation is a strategic legislative issue I have no recommendation on. But this loophole (and several others) must be closed.
Respectfully,
Bill Wolfe
[End Note: DEP and SCS still have not provided the requested “Non-Applicability” determination. My phone call this morning with SCS created the impression that the DEP exploited an exemption in the definition of “project” for single residential buildings – the Act (4:24-41.g.). But that says nothing about any federal habitat plan:
“Project” means any disturbance of more than 5,000 square feet of the surface area of land (1) for the accommodation of construction for which the State Uniform Construction Code would require a construction permit, except thatthe construction of a single-family dwelling unit shall not be deemed a ‘project’ under this act unless such unit is part of a proposed subdivision, site plan, conditional use, zoning variance, planned development or construction permit application involving two or more such single-family dwelling units; (2) for the demolition of one or more structures; (3) for the construction of a parking lot; (4) for the construction of a public facility; (5) for the operation of any mining or quarrying activity; or (6) for the clearing or grading of any land for other than agricultural or horticultural purposes.
Additionally, DEP and SCS did not comply with the regulations. DEP did not submit a Non-Applicability determination before implementing the project and the rules say nothing about after the fact issuance:
2:90-1.4 Application
[(a) – (d)]
(e) All requests for determination that the act does not apply to land disturbance activity shall be submitted to the district by the owner or their authorized representative. Non- applicability requests shall be in writing and include a plot or site plan depicting all proposed areas of disturbance and a resolution from the municipality or other suitable documentation indicating the date the lot was created. Hardship exemptions or waivers shall not be authorized. The act does not apply to the following activities:
1. Land disturbance activities 5,000 square feet or less; and
2. Single-family dwelling lots not regulated under N.J.A.C. 2:90- 1.5.
Extraordinary Explosion of Smallflower Globemallow
We had an otherworldly experience – reminiscent of the scene from the classic movie “The Wizard Of Oz” when the film explodes from black and white to color – last week in Vermillion Cliffs National Monument.
A lifetime local writer told me that this was the first she’s ever seen of such an explosion of Smallflower Globemallow, which was enabled by the very wet winter of California rivers of rain.
Some views, which can’t remotely convey the experience:
