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The Only Way Out Is For PVSC To Withdraw The Permit Application

Expect The Long-standing DEP Shuffle: Delay It To Death

I need to explain the reasons and implications of why DEP can’t deny the PVSC Newark power plant permit.

The Governor and DEP are in a box.

They both have made commitments and promises on EJ that they can not deliver on. Those promises have raised public expectations. Yet the Governor’s Executive Orders and the DEP Commissioner’s Administrative Orders are not enforceable and have no more legal weight than a press release. 

The activists in Newark are not going away. And the media has begun to report on the project and is following the issue.

The DEP air permit regulations are fatally flawed and do not provide a legally defensible basis to deny the PVSC permit application. Despite these flaws, the DEP has not revised permit regulations to walk the talk on EJ.

If DEP were to deny the air permit, then PVSC could easily legally appeal and win (that might take years, but they would win). But PVSC is a public sector entity, so they might be reluctant to get into litigation with the State.

One would think that a “free pass” on legal challenge from PVSC might lead DEP to deny the permit and use political pressure to block PVSC from appealing that decision.

But, here’s why that won’t happen.

DEP won’t deny the permit – even if they knew PVSC would not appeal – because to do so would provide a regulatory basis and precedent that could then be used against other permits. 

Corporate industrial polluters would never let DEP get away with that. This corporate power is why the DEP air permit rules are so weak to begin with.

For the same regulatory reasons, this is why the EJ law if fatally flawed: because it didn’t require than DEP fix these existing fatally flawed air permit regulations and review methods (this would include everything from how to define “State of the art”, to air quality and emission standards, to air quality monitoring and modeling, to cumulative impacts, to community based health risk assessment (known as “stressors” in the EJ law).

Instead of that heavy lift – which corporate polluters would vigorously oppose and block in the legislature – the EJ law created a parallel DEP review process with vague narrative standards that can not be enforced by DEP.

This novel parallel EJ process explains why DEP has delayed and been unable to propose EJ rules. 

So, just like the PennEast pipeline, DEP must find some other means to kill this project (assuming they want to, which is a questionable assumption).

My best guess is that DEP will pull their longstanding standard operating procedure when dealing with public controversy and huge regulatory stakes: they will delay any permit decision in hopes that PVSC will just abandon the project or withdraw the permit application.

Just like the PennEast pipeline.

Garbage Incinerators Were Built In Low Income & Minority Communities 

They Are Major Sources Of Greenhouse Gas And Hazardous Air Pollution

There Are Cheaper And Greener Alternatives

It’s way past time to shut down NJ’s aging fleet of highly polluting garbage incinerators.

NJ now has 4 operating garbage incinerators (the rural Warren County facility is shut down), and they all are located in poor and/or minority environmental justice communities: They burn the following amout of garbage and emit GHG (according to DEP):

• Newark (985,500 tons/year – 2.16 million tons per year greenhouse gas emissions)
• Rahway (562,100 tons per year –  1.23 million tons per year GHG emissions)
• Camden (451,140 tons per year –  988,800 tons per year GHG emissions)
• Westville (209,875 tons per year –  460,000 tons per year GHG emissions)

That’s over 4.8 million tons per year of GHG emissions, roughly 25% of the total emissions from NJ’s power sector (19.2 million tons per year). Yet these plants provide only a tiny fraction of NJ’s electric power production.

The GHG emissions from garbage plants alone are about DOUBLE the emissions reductions that might result from DEP’s recently proposed power sector CO2 rule PLUS the much touted diesel truck rule combined (and incinerators are exempt from DEP’s proposed CO2 rule).

These GHG emissions do not include the harmful toxic and GHG emissions from the thousands of garbage trucks per day that dump at the facilities.

They also don’t include harmful emissions of mercury, lead, fine particulates, NOx, SOx, and hazardous air pollutants, which deposit locally and poison nearby environmental justice communities (look at the Newark DEP air permit emissions). [Full disclosure: I was involved with Newark project at DEP.]

The original arguments, made back in the late 1980’s, against incineration are far stronger today given the climate emergency, new science on local air pollution deposition, and the growing public disgust with environmental racism.

A Legacy Of Toxic Racism

Back in the 1980’s, the Kean Administration adopted a State Solid Waste Plan which directed all 21 NJ counties to site and develop garbage incinerators. Almost all were sited in poor and minority communities. DEP rubber stamped those County siting decisions.

This was the policy when I joined DEP in 1985. The NY Times from April 1984 explains:

In his message to the State Legislature in January, Governor Kean said that resource recovery would be implemented through a legislative package. Among other things, the package would provide financial incentives for private investment in the construction of resource-recovery facilities and a tax on garbage disposal to provide funds to develop these facilities.

In 1985, the Legislature passed laws to levy garbage disposal taxes and created a $168 million bond fund to provide huge subsidies to these “resource recovery” facilities. That same legislation (“McEnroe” named for the Democratic Assemblyman sponsors from Essex County) promoted privatization and deregulated the “public utility” economic oversight of BPU. (McEnroe deregulated solid waste haulers too). The Kean administration allocated 100% of NJ’s scarce “private activity bond volume cap” subsidies as well (instead of to other public purposes, like affordable housing). The NY/NJ Port Authority was used to subsidize the Newark incinerator (good story of how that happened). Federal energy laws (PURPA) provided huge subsidies and BPU allowed huge above market power purchase contract prices for the small amount of electric power produced at these facilities.

Statewide environmental and grassroots groups fought back. They strongly opposed incineration and mounted public campaigns against building these technological highly polluting dinosaurs. Their opposition focused on toxic air emissions, toxic residual ash, and how these facilities undermined cheaper and greener source reduction and recycling programs. The environmental racism siting issues were not yet front and center in the debate, as they are today, and there was no mention of climate issues (an incinerator sited in Trenton did prompt the environmental racism issue).

Strong public opposition grew and democracy worked, which led Gov. Florio – via Executive Order #8 –  to declare a moratorium on DEP approvals of incineration.

EO 8 created a public Solid Waste Task Force that led to the development of a radically improved DEP Solid Waste Plan that mandated a policy hierarchy of source reduction, recycling, composting, and landfill. That plan set the nation’s then highest recycling rate (65%), backed up by State laws funding and mandating source separation and local recycling programs.

Garbage incineration was deemed a “technology of last resort” by that DEP Solid Waste Plan and any new garbage incinerator had to be regionalized.

That led to the termination of 15 planned, financed, and/or DEP permitted county incinerators.

But the current fleet of 5 were either operating, under construction, or too far along financially or legally to be canceled by the new DEP plan and were effectively grandfathered from it (regardless of how bad the pollution and economics were).

[Note: astonishingly, the current DEP Solid Waste Plan (last updated in 2006!) not only totally whitewashes this history, it actually criticizes Gov. Florio’s Executive Order as:

an administrative policy and has tended to divert attention away from the more significant goal of recycling at least 50% of the municipal solid waste stream.

I smell the fingerprints of Gary Sondermeyer and Guy Watson, 2 DEP bureaucrats we had to work around to make things happen.]

Here’s How To Shut Them Down

The same strong arguments opposing incineration the led Gov. Florio to issue Executive Order #8 and impose a moratorium and cancel 15 planned incinerators still hold today and are made far stronger by the climate crisis and the awareness of the blatant racism that drove the siting of those facilities.

The bonds on those facilities have long been paid for, so there is no private “stranded investment”,  no lost public investment, and need to compensate the corporate owners of those facilities.

The original DEP air and solid waste permits have expired and been renewed several times.

It’s time to just shut them down.

DEP could do that by simply revoking the DEP operating permits and unilaterally amending the State Solid Waste Plan to delete them from County Solid Waste Plans.

The scientific, legal, and regulatory basis for DEP to do that is that there is the new information  generated since the DEP permits were issued regarding the climate crisis and localized impacts of air emissions on environmental justice communities.

With respect to climate, the current DEP Solid Waste Plan estimates: (Note: this plan and this data are over 15 years old)

DEP can reopen, amend, and/or revoke permits on the basis of new information. The public (activists) can petition DEP to reopen and revoke permits on this basis under DEP permit regulations.

Additionally, there is new law, including the passage of NJ’s Global Warming Response Act and the Environmental Justice law.

Why aren’t climate and EJ activists demanding shutdown?

[End Note: The history is even worse than The NY Times story describes.

A media exaggerated “landfill disposal crisis” provided cover for the Kean DEP to force north jersey counties to build expensive garbage transfer stations to export garbage long distances to midwestern landfills.  Of course, Wall Street and politically powerful NJ Bond Counsel law firms like McCarter and English loved this.

The resulting high tipping fees at these transfer stations increased historical in state landfill disposal costs – sometimes by an order of magnitude – to over $130 per ton or more.

The “rate shock” and impact on local budgets were intended to coerce counties into building “cheaper” incinerators, which were supposed to be welcomed by the public as a “cheaper” alternative to the DEP manufactured rate shock from the transfer stations.

I’m not making this up – This cynical economic blackmail strategy was all laid out in a consultant’s Report – The Mitre Report it was called.

Rare DEP Rollback Results In A Huge Loss of Protected Wetlands

Allows PSE&G To Avoid Costly Avoidance, Minimization, and Mitigation Requirements 

Just days before DEP denied a petition by climate groups, the Murphy DEP approved a petition, filed by PSE&G, to deregulate and eliminate protections from 148.9 acres of previously regulated wetlands at their Salem Hope Creek nuclear power plant. You can read the DEP decision here.

Remarkably, PSE&G argued that the wetlands no longer existed – largely because they had destroyed them (emphases mine):

DEP either lied or made a big error. PSE&G did NOT claim that the elevation was one foot “above the local extreme high water”. PSE&G claimed that the elevation was above the:

That is not only a huge loss of protected wetlands – one of the largest individual loss in State history that I’m aware of – it is a rare if not unprecedented rollback in response to a petition from a regulated entity (PSE&G). There are no similar DEP concessions on DEP’s rule petition webpage.

The DEP wetlands rollback saves PSE&G potentially millions of dollars in off-site wetlands mitigation:

Mitigation refers to an activity or activities carried out to compensate for impacts to freshwater wetlands, State open waters or coastal wetlands disturbance caused by regulated activities. Wetland mitigation is currently required under the Freshwater Wetland Protection Act for some general permits and when an applicant receives an individual permit. Under the Coastal Zone Management rules, mitigation is required for all coastal wetland impacts.

If DEP denied the PSE&G petition, PSE&G would have been required to apply for and receive wetlands permits. NJ DEP wetlands regulations require avoidance of wetlands impacts, minimization of wetlands impacts, and mitigation for any losses. Under DEP mitigation requirements (See NJAC 7:7A-11 @page 114)) , PSE&G would have been required to preserve hundreds of acres of off-site wetlands.

Loss of wetlands contributes to flooding. Therefore, by deregulating these wetlands, DEP just abandoned an opportunity to increase wetlands protections via off-site mitigation (and thereby reduce the severe coastal and inland flood impacts NJ just experienced).

Additionally, there are serious concerns about the vulnerability to and risks of flooding and storm surge at this PSE&G nuclear complex. Filling and destruction of wetlands exacerbates these risks. For example, there were NJ legislative hearings and other investigations in the wake of the Fukushima disaster that explored the Delaware river elevations and the height of the intakes at these nuclear plants. These risks are magnified by climate change. Obviously, that critical issue must be addressed, particularly in light of climate change. See: “Japanese Nuclear Accident And US Response” – NEI, Public hearing on (4/7/11 – Trenton)

DEP Rejection of Forest Stewardship Council Certification Guts Essential Safeguards Used To Garner Support

• One of the key principles that allowed many [conservation] groups to throw our support behind the bill was the concept of forest stewardship certification by the independent Forest Stewardship Council. So that remains the key component that assures us that some of the issues that have been brought up today [are addressed].  ~~~ Emile Devito, PhD, NJ Conservation Foundation (and Trustee of the Pinelands Preservation Alliance)

• We have a Natural Heritage Committee …comprised of some of the most preeminent wildlife biologists, naturalists, forest ecologists in the state … and they debated this bill for over a year. And what they came up with is a position paper. What it required to support this bill was really one thing: and that is that a forest stewardship plan for State owned land be certified by the independent Forest Stewardship Council. ~~~  Testimony of Eliott Ruga, Highlands Coalition, to the Assembly Ag. & Natural Resources Cmte. 6/10/13 (listen)

Readers know that DEP recently rejected the Forest Stewardship Council certification process contained as an essential safeguard in the controversial  proposed “Forest Stewardship” bill.

The FSC standards and certification process were the only reasons many in the NJ Conservation community agreed to support the bill.

FSC certification was viewed as an essential safeguard to prevent damaging commercial logging of NJ forests. The sponsors of the bill repeatedly assured critics that FSC would prevent abuses.

Because DEP has opposed FSC certification and will not enforce FSC standards and nothing in the bill requires DEP to do so, I am urging my colleagues to take emergency action and publicly withdraw their support for the bill.

This would include contacting the bill’s sponsors and issuing a public statement. Now!

Such a move is extremely important and must happen immediately, because the bill is scheduled for Assembly floor vote on Monday.

The bill already has cleared the Senate and this is the bill’s last stop before the Governor.

Here is my letter to the Highlands Coalition, who reluctantly  backed the bill only due to the FSC certification provision:

Julia and Eliot – as you may know, in a June 10 letter, DEP rejected FSC certification – given this position, would the bill pass, they will not enforce FSC standards or participate in the FSC certification process.

Nothing in the pending Forest Stewardship bill requires them to do so or provides for mandatory compliance with FSC standards (which are voluntary, and only implemented via the non-binding FSC certification process).

Christie May Not Be A Total Denier, But He Is A Radical Dismantler of Climate Change Programs

[Updates below]

Climate change is of  NO CONCERN to Gov. Christie and he’s said so himself and demonstrated that by his actions multiple times for over 3 years.  ~~~~ Bill Wolfe, March 15, 2013

A story in today’s Bergen Record prompts the question:

Why is it so hard for NJ Media to accurately portray the Governor’s record or call out Christie on Climate Change?

Today, very similar to what we have written (see this Jan. 11 post), the Record story compares Gov. Christie’s Sandy Recovery Plan with NY Gov. Cuomo’s plan, see: Rebuild vs. retreat: Christie and Cuomo offer contrasting plans in wake of Sandy

We won’t focus on the bias in that headline – i.e. disparaging sound, cost effective, regional land use planning recommended by the overwhelming majority of scientific experts and a diverse set of professionals as “retreat” shows absurd bias. We’ll save that debate for another day.

But, I do want to focus on how that story characterizes Governor Christie’s stance on climate change.

Here’s how the Record reporter describes that:

Christie, a Republican who said immediately after superstorm Sandy struck in October that climate change was not his “main concern,” is offering owners of flood-damaged homes $10,000 in exchange for a promise to do repairs and stay in their homes for at least two years.

Not his “main concern”? What? Are you kidding me?

Climate change is of  NO CONCERN to Gov. Christie and he’s said so himself and demonstrated that by his actions multiple times for over 3 years.

Both the Gov.’s rhetoric and his policies – over a 3 year period – show that climate is of no concern, not a just a lower priority isssue, i.e. not a “main concern”.

So why is this so hard for the press to hold the Gov. accountable to that radical position?

Let me again offer a few specific examples of the Christie rhetoric and the policy:

1. In a recent February 5, 2013 Union Beach press conference, yes, technically, as the Record reported today, the Gov. did say that climate change was not his “main concern“.

But those were the Gov. words, designed to soften a rant and mask his radical policy record.

The context for the Gov.’s not my “main concern” quote was a rant in which the Gov. called climate change an “esoteric issue” that the public “did not give a damn about” and that he had not spent any time – repeat: any  time at all – considering.

“I have no idea. I’m not a climatologist and in the last hundred days I have to tell you the truth, I’ve been focused on a lot of things, the cause of this is not one of them that I’ve focused on,” Christie said in response to a question about the role climate change could have played in fueling the Oct. 29, 2012 storm. “Now, maybe in the subsequent months and years, after I get done with trying to rebuild the state and put people back in their homes, I will have the opportunity to ponder theesoteric question of the cause of this storm. …If you asked of these people in Union Beach, I don’t think they give a damn.” NJ Gov. Chris Christie, Feb. 5. 2013

2. Prior to Christie’s February 5 rant, the Gov. told WNYC’s reporter Bob Hennelly – who asked him a point blank climate question – that he had not been briefed on or considered climate change in 18 months. On Dec. 7, 2012, WNYC reported:

Nancy Solomon, New Jersey Public Radio) As Sandy gathered force and then slammed into his state, New Jersey Governor Chris Christie batted off question’s about climate change.

“I know there are some folks at Rutgers who are looking at whether climate caused all this, but I certainly haven’t been briefed in the last year, year-and-a-half on this,” Christie told WNYC’s Bob Hennelly last month.

How is it possible for the Governor of a coastal state, with the nation’s most aggressive climate change law (i.e. the 2007 Global Warming Response Act) not to have been briefed for 18 months on climate change?

So again, by the Gov. own words, climate change played NO ROLE – not a subordinate role – but NO ROLE in the Governor’s decisions.

3.  On the policy front, the evidence is even worse.

• The Governor has dismantled DEP Office of Climate Change created in the Commissioner’s Office to implement the 2007 Global Warming Response Act. (see CHRISTIE SHREDS NEW JERSEY CLIMATE CHANGE PROGRAMS – Kills Emission Reporting, Diverts Green Energy Fund & Defunds Climate Office

• The Governor unilaterally removed NJ from the Northeastern States’ Regional Greenhouse Gas Emissions program (RGGI), virtually the only NJ program to implement the NJ GWRA GHG emissions reduction goals. That radical move has come under political attack in the legislature and legal attack by lawsuit from environmental groups.

• The Governor has diverted  over $800 million of Clean Energy Fund money designed to fund critical energy efficiency, conservation and greenhouse gas emission reduction programs.

• The Governor revised the Energy Master Plan to reduce energy conservation goals, to promote construction of new fossil power plants, to build new gas pipelines to transport fracking gas and to erect arbitrary economic “cost test” barriers to renewables.

The Governor has engaged an across the board assault and dismantling of virtually anything related to climate change – it is a radical and ugly record.

That radical record can not be characterized by the misleading and lazy claim that climate change is not his “main concern”.

Why is this story so hard for the NJ media to write?

Why do they flinch from holding the Gov. accountable to this radical record?

In closing, this is one of the few news stories that come close to calling the Gov. out and accurately portraying his policy: Sandy recovery, not climate, on Governor Christie’s radar

Update #2 : 5/15/13 – Wa-Po Op-Ed by the Nation’s Katrina vanden Heuval Christie’s Broken Promise – conclusion sounds familiar:

He may not be engaging in climate denial talk — but he’s embracing climate denial policies.

In another erie parallel, Katrina also cites the 400 ppm CO2 threshold, a milestone I urged Dems to use as a millstone around Christie’s neck , on the same day she wrote the column, May 14!  – end update]

Update #1 : 4/28/13 – HALLELUJAH!!!  (listen to Leonard Cohen)

Tom Moran at the Star Ledger finally breaks the ice with this editorial:  Gov. Christie’s towering hypocrisy on climate

But, I had to write my old friend a note, just to keep it real:

Tom – thanks for that, you’re the first to break this ice:

Why Is It So Hard For NJ Media to Call Out Gov. Christie on Climate Change?

But, you obviously must know that putting Pringle in that piece was obscene – Pringle and NJEF not only endorsed Christie, but provided cover for 2 years – the key period when this policy framework was put in place with no media or legislative pushback !

Rewarding that by writing him into your editorial is an insult to the truth.

Wolfe  – end updates]