Murphy DEP Failed To Accurately Notify The Public About Rights To Appeal To EPA On Newark Fossil Power Plan Permit

DEP Did Not Provide EPA Appeal Procedures

We Fire The First Shot Across The Bow To Get Trump EPA’s Attention

This post goes deep in the regulatory weeds, so if that’s not your thing, just hit the delete button.

But before doing so, consider that many environmental battles are won based on procedural errors!

I am NOT an expert in air pollution permit issues and rarely get involved in them. The science and technical issues are extremely complex and the regulations are absolutely byzantine.

I sense that this is by design, to make it almost impossible for people to understand and participate in Clean Air Act programs to hold polluters and government accountable, while allowing lobbyists and lawyers for the polluters to capture and control government regulators.

But I do have 2 very big wins on air regulatory issues when I have weighed in:

• I prevailed in a legal challenge to the PSD permit issued to the proposed Mercer County garbage incinerator (read the US EPA Environmental Appeals Board decision); and

• My work was instrumental in killing Governor Whitman’s “Open Market Emissions Trading” (OMET) program (also read the NJIT paper:

• The rise and fall of open market emissions trading in New Jersey

So, when I roll up my sleeves, I can win.

The Murphy DEP’s permit decision-making in the Newark fossil gas power plant was so egregiously flawed that I sense it’s worth some time to read the regulations and engage with the EPA.

And right out of the box, after reading the applicable EPA regulations (40 CFR 70.8), I see that the Murphy DEP may have made mistakes.

DEP managed to confuse and mislead the public about how to participate in the EPA’s review and they failed to even mention the 60 day clock on the public’s right to petition EPA (search EPA’s database for the phrase: “Title V Operating Permits Public Petitions” to see 844 records!)

In order to send a message to EPA Region 2 permit review staff who supervise the NJ DEP permit program under the Clean Air Act that someone is looking, I sent them the following note.

The DEP’s error is very minor and easily remedied, but EPA’s response will signal whether they are willing to hold DEP’s feet to the fire on this permit.

Ideally, they will conclude that the DEP permit raises national legal precedent and policy issues and refer the case to EPA HQ in Washington DC for decision:

Dear EPA Region 2 Title V Permit Reviewers:

I write concerning the subject Title V permit recently issued by the NJ DEP.

It appears that DEP has made a procedural error regarding public notice of applicable requirements pursuant to 40 CFR 70.8 (see my email below to Kevin Greener, NJ DEP contact). It appears that DEP provided notice to the commenters on the permit, however, that notice was flawed for 3 reasons:

1) it omitted the public appeal procedures pursuant to 40 CFR 70.8(d);

2) it appears to have been provided only to commenters on the draft permit; and

3) the inclusion of the EPA 45 day review period and omission of the 60 day appeal procedure created confusion and thereby provided inadequate public notice.

Please be advised that I plan on filing substantive comments to EPA pursuant to EPA’s review under 40 CFR 70.8(c). This email does NOT constitute those future comments.

Given the controversy over this permit and high public profile, I wanted to bring this matter to your attention and be assured that EPA is taking a hard look at the NJ DEP’s permit decisions in this matter.

Please request that NJ DEP provide accurate and adequate public notice in accordance with applicable requirements.

I look forward to your timely and favorable reply.

Respectfully,

Bill Wolfe