The Alleged “Special Conditions” DEP Imposed Are A Bluff And Not Enforceable
DEP Commissioner LaTourette Continues To Gaslight The People Of Newark
This is the most political and dishonest action by DEP I’ve ever witnessed in almost 40 years of regulatory work. Follow closely.
The Murphy DEP just issued an approval of an “environmental justice review” of the proposed new gas power plant for the Passaic Valley Sewage Commission facility in Newark. The approval included what DEP calls “special conditions” (read the document here)
The DEP’s approval was issued pursuant to an Administrative Order issued by DEP Commissioner LaTourette. Legally, an Administrative Order issued by a DEP Commissioner can not establish binding and enforceable regulatory requirements on permit applicants. An AO can only bind DEP employees. It has no more legal effect than a press release.
Accordingly, the “special conditions” imposed by DEP in the EJ review approval document are not binding and can not be enforced by DEP.
The DEP’s approval was NOT approval of an air pollution control permit, in this case what’s known as a Title V Operating Permit Renewal And Modification.
If you closely read the fine print in the DEP approval document – which misleadingly conflates the Operating Permit and the EJ review – you can figure this out.
Even NJ Spotlight reported this, but they did so in a misleading way. They reported the permit issue only AFTER reporting on the “special conditions” and with no mention of the fact that those conditions were not enforceable:
LaTourette said DEP expects to release a draft permit in August that will be subject to a public comment period, and then subject to review by the U.S. Environmental Protection Agency. A final permit is expected to be issued early next year.
The DEP’s approval was NOT issued pursuant to the highly touted Environmental Justice law. As I’ve written several times, that law does NOT apply to the proposed PVSC power plant permit application, see these posts, where I drill down on that:
Repeat: The “special conditions” imposed by DEP in their environmental justice review approval document are not enforceable and they are not official permit conditions.
So, the PVSC permit and this DEP environmental justice review expose huge loopholes and the sham of the environmental justice law and Commissioner LaTourette’s lame efforts to close loopholes in that law via his Administrative Order and a similarly unenforceable DEP Guidance Document, see:
My guess is that DEP Commissioner LaTourette is not only gaslighting the public to avoid revealing those regulatory shams.
My guess is that he’s bluffing the PVSC Commissioners and attempting to generate public pressure on them to abandon the project.
In other words, LaTourette is putting a regulatory gun to the head of PVSC, but that gun is loaded with blanks.
My guess is that Commissioner LaTourette thinks that if the PVSC Commissioners are required to comply with the DEP’s “special conditions” and spend millions of dollars for a power plant they can not use, then they will realize that the economics don’t work and abandon the project.
But this stunt won’t work.
The PVSC has competent lawyers who know that DEP can’t back up and enforce those “special conditions” in a real Title V Operating Permit.
If the PVSC still wants to build the power plant, my guess is that they will wait until receiving the real DEP Title V Operating Permit that LaTourette said would be issued in August. That would call LaTourette’s bluff.
But, on the other hand, if the PVSC Commissioners are looking for a graceful face saving way out, they can blame the DEP’s expensive “special conditions” – and that would allow the Murphy DEP to declare victory too.
DEP also might include the special conditions in the draft Title V Operating Permit and then blame US EPA for striking them out.
So, this could all be some kind of complicated Kabuki dance.
My guess is that any DEP issued Title V Operating Permit will NOT include those “special conditions” – and if it does, the permit will be litigated and the “special conditions” struck down.
Word.