Murphy DEP Fossil “Cavern” Storage Rules Linked To Proposed Delaware River LNG Export Project

August 15th, 2022 No comments

Fortress Energy LNG Export Lawyers Playing The Inside DEP Regulatory Game

Climate and Environmental Justice Advocates Are Duped

The Public Will Be Shocked To Learn Of These DEP Policies

Exactly three (3) months ago, we warned about proposed Murphy DEP regulations that would promote the expansion of underground storage of fossil fuels in “caverns”, see:

Today, better late than never, NJ Spotlight wrote about those DEP proposed rules, and they didn’t pull any punches with the headline, see:

The Spotlight story starts off on the wrong foot, seemingly falling into exactly the trap we warned about:

I suspect that DEP will spin these rules as updating or modernizing outdated permits or regulations based on an ancient 1951 law.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.

But the the rest of the content of the story – although missing the point on some big issues (see below) – is unusually good as well.

I) Documenting Fossil Industry Influence

To their credit, NJ Spotlight reporter Andrew Lewis did his homework – real journalism instead of the typical he said/she said crap.

Mr. Lewis filed an OPRA request for the public comments on the DEP rule proposal. That provides the actual industry position, not the spin from their press releases and media people.

Just as we warned, Lewis was able to document that Fortress Energy, the corporation proposing the Delaware River LNG export facility in Gibbstown, is playing the DEP regulatory game behind the scenes.

Lewis absolutely nails it with this quote, that connects all the dots. BOOM!

While emails and calls to the Repauno Port & Rail Terminal went unanswered, NJ Spotlight News did receive, through an Open Public Records Act request, a copy of a public comment submitted on June 13 to the DEP by David Miller, an attorney for the law firm Giordano, Halleran & Cielsa, who was writing on behalf of Delaware River Partners LLC.

“The proposed Cavern 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,” Miller wrote. “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.”

Miller went on to underscore Delaware River Partners LLC’s position that the DEP should consider all liquefied petroleum gas (LPG) products “as a single regulated substance.”

One LPG rule fits all?

“As a result,” Miller wrote, “if geologic conditions are found to be suitable for one LPG product, that determination can be safely applied to all LPG products provided the cavern is designed to accommodate the maximum operating pressure for any LPG product.”

 Let’s break that down to emphasize what it really means:

1. “The proposed Cavern Rules are the culmination of a considerable and concerted effort by Department staff and those in the regulated community”

This exposes what is known as “regulatory capture”. The Fortress Energy lawyers are so smug and arrogant that they openly brag about their undue and corrupt influence on DEP regulators.

These are the kind of stunning admissions journalists can expose when they do real work and get inside the DEP game. Bravo!

2. to craft a protective and workable regulatory framework”

Once again, we get an open admission that the DEP regulators are working to craft a regulatory framework that “works” for the industry.

Worse, this phrase can be interpreted – often accurately – that the DEP regulatory framework is designed to protect the industry and provide “regulatory certainty” that is necessary for private investment.

3. “as a single regulated substance.”

A single regulatory substance would mean that the rules would promote expansion of storage  “for any LPG product”, which means fracked gas and LNG export.

Just as we warned:

Don’t be fooled by the exclusion of storage of LNG. The DEP proposal would allow underground storage of fracked natural gas, which can easily be converted to LNG for export.

This means that DEP regulations will promote LNG export, just as the lawyers for the Fortress Energy LNG export project advocated.

While NJ Spotlight reports this concern, they do not fully emphasize the significance:

And while the proposed regulations would exclude liquefied natural gas from the list of products that can be stored in underground storage caverns — since it must be kept at minus 259 degrees Fahrenheit — the prohibition would not impact the construction of nearby LNG plants or export terminals. Fracked natural gas can still be pumped or transported from an underground storage cavern to a nearby facility and ultimately converted to LNG.

II) Some Serious Omissions And Distortions On Climate and Environmental Justice

That’s all the good reporting, but unfortunately, the NJ Spotlight story misses the mark on climate and environmental justice issues, largely do to reliance on sources that just don’t know what they are talking about.

Here’s the worst:

Marcus Sibley, chairman of the New Jersey Progressive Equitable Energy Coalition, views the expansion of underground storage caverns as an affront to the state’s landmark Environmental Justice Law, which requires the DEP “to evaluate the environmental and public health impacts of certain facilities on overburdened communities when reviewing certain permit applications.”

This is not the first egregious error by Mr. Sibley, and they are not honest mistakes.

The “landmark environmental justice law” he’s been cheerleading for does not apply to DEP cavern regulations or to the DEP permits DEP will issue to caverns pursuant to the propose regulations (if they are adopted).

That EJ law is riddled with loopholes and technical flaws, as I’ve written about numerous times so won’t go into here.

To his credit, Sibley correctly blasts the privatization aspects of the DEP proposal as well as the potential risks to EJ communities (but with respect to climate, not so much).

The Spotlight story also goes very easy on Delaware Riverkeeper.

As we wrote, Riverkeeper actually supported the DEP proposal of regulations:

The folks at Delaware Riverkeeper played the inside DEP game and got duped. DRN actually supported the development of regulations, instead of just opposing the need for this practice and seeking decommissioning of existing caverns and a ban on expansion or promotion of new fossil infrastructure. Remarkably, they did this despite noting that the Gibbstown LNG project was seeking expansion of the current cavern capacity of 186,000 barrels to 3 million barrels! 

Riverkeeper now looks like they blew the whistle on this, while they failed to do that and instead played the inside DEP stakeholder game. AS a result, the public, who will strongly oppose this insanity, has been in the dark until today.

III) Finally, there are some large gaps in the story, including:

1) Failure to report that the: a) Gov.’s Executive Orders on climate and energy; b) the Global Warming Response Act; c) the current DEP regulations; d) the DEP cavern regulatory proposal; e) the environmental justice statute; and f) the DEP’s proposed environmental justice regulations ALL DO NOT APPLY TO THE DEP CAVERN REGULATORY PROPOSAL OR TO THE DEP PERMITS DEP WILL ISSUE PURSUANT TO THE PROPOSAL (if it is adopted).

This goes for the environmental impact assessment provisions in the DEP proposed cavern rule.

Do I make myself clear?

Mr. Sibley and Delaware Riverkeeper surely must know this. So why don’t they warn the public about it and pressure the Governor and DEP to close these loopholes?

2) failure to report the current DEP Commissioner’s prior legal work for Fortress Energy in securing DEP permits and his ethics recusal (Spotlight previously reported on that, based on our disclosures, bu with no attribution or link to Wolfenotes:

LaTourette’s [recusal] memo lists the matters before the DEP that he worked on while he was an environmental attorney with a Newark law firm immediately before joining DEP in September 2018. Those matters include the Repauno Port and Rail Terminal, a project on which he represented Delaware River Partners on “all remediation and permitting concerns” before the DEP, the Delaware River Basin Commission (DRBC) and two federal agencies, according to the document, which was obtained via an Open Records Act request filed by Bill Wolfe, a former DEP employee.

3) failure to report the special treatment and unusual regulatory approvals that the Fortress LNG project has benefited from. For example, just days ago, we wrote about the most recent one of them:

4) failure to report on the direct related energy policy and fossil infrastructure issues, and the role of gas infrastructure.

5) Lewis downplayed the California Aliso Canyon disaster we highlighted.

6) The long delay in reporting this May story and the fact that NJ Spotlight filed OPRA request to get the DEP regulatory source documents suggests the power of the fossil industry. Spotlight had to make their reporting bullet proof, largely because they likely feared the consequences of pushback from fossil.

We’ll keep you posted.

[End Note: I like to avoid race based and divisive arguments, but I should note that a reader just emailed me to note that I missed an important flaw in the EJ law. The definition of an EJ community ignores poor and working class white communities, he writes:

Gibbstown is not an EJ community- even though it has lots of industry super fund sites recra sites – it doesn’t not have enough minorities or people that speak other languages -Short Hills ,Alpine West Windsor are but working class white communities are not

Wow.

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Point Wilson

August 14th, 2022 No comments

Snow Capped Mt. Baker Across The Salish Sea

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A very fine place: Point Wilson

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And here’s the beach:

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And the lighthouse:

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Despite Gov. Murphy’s Vow To Stop The Project, DRBC Extends Expired Approvals And Fortress Energy Remains “Fully Committed” To LNG Export Plant On Delaware River

August 13th, 2022 No comments

DRBC Extends Approvals With No Public Process

Murphy DEP Commissioner Previously Served As Lawyer On The Project

DRBC Extension Is Compelling Evidence That Gov. Murphy’s Opposition Is Not Genuine

The Delaware River Basin Commission (DRBC) recently granted a request by Fortress Energy to extend DRBC approvals for the controversial LNG export project along the Delaware River in Gibbstown, NJ.

The initial DRBC approval was slated to expire on June 12, 2022. Expiration could have forced the project back to square one to re-apply for DRBC approvals, or at least seek DRBC approval after additional rounds of DRBC technical review and public hearings on the extension request.

This is a massive new fossil infrastructure project that would expand fracking and cause significant increases in greenhouse gas emissions, especially highly potent methane.

As such, the project directly contradicts NJ Gov. Murphy’s numerous (toothless) Executive Orders and personal public commitments to reduce greenhouse gas emissions (read the Fortress request and DRBC approval here – documents provided by Delaware Riverkeeper).

Fortress Energy emphasized that they remain “fully committed” to the project:

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The DRBC extension was granted for an additional 3 years, until June, 12, 2025

In an unusual move, particularly on a project that has generated such huge public opposition, DRBC Executive Director Tambini issued the extension unilaterally by letter on June 16, 2022 (with an unusual retroactive provision, i.e. the extension was issued after the original approval had expired), and he did so with no public process, a move that was harshly criticized by Delaware Riverkeeper.

The DRBC extension is particularly egregious, given NJ Gov. Murphy’s high profile public vow to do everything in his power to stop the project. (NJ Spotlight wrote:

“The Administration, however, remains unwavering in its commitment to continue advancing critical initiatives to protect the environment and public health for future generations. It will explore all avenues within its authority to prevent the use of this dock for LNG transport,” the statement said. Murphy did not say how he would do that.

His vow to block the project came after his DEP issued permits to approve the project.

Gov. Murphy is a Co-Chair of the Commission – his DEP Commissioner is a voting member (which raised obvious ethical conflict and recusal issues, given DEP Commissioner LaTourette’s legal work for the project in securing DEP permits).

Obviously, DRBC denial of the extension request was a regulatory opportunity to block the project.

There is no way DRBC Executive Director Tambini would have issued this extension on his own without consulting with Gov. Murphy’s Office, with his DEP Commissioner, or over the objection of Gov. Murphy or DEP, so the extension itself is compelling evidence that Gov. Murphy’s opposition is not genuine.

The fact that Fortress Energy remains committed to the project and continue to spend a lot of money developing the project is also compelling evidence that that have no fear of Gov. Murphy’s threat to kill the project.

The Fortress commitments and DRBC approval make a mockery of Gov. Murphy’s gestures to stop the project.

As we revealed, Gov. Murphy’s DEP Commissioner Shawn Latourette was the lead lawyer for the Fortress LNG project to secure DEP permits and he was installed at DEP just 2 weeks after leaving his law firm legal post for Fortress.

The Tambini secret extension is another example of special treatment and secrecy on this project, see:

None of this could have occurred if Gov. Murphy seriously wanted to kill the project.

So, why did the Delaware Riverkeeper’s scathing press release not even mention Gov. Murphy and instead punched down and targeted ED Tambini, and not Gov. Murphy?

That’s just another example of the lame lapdogs in the NJ climate activist community.

Where is the NJ press corps? Where is legislative oversight to hold the Gov. accountable?

[End Note:  I learned of the DRBC extension this morning in an email from Catskill Mountainkeeper. The mis-focused headline says it all: “BREAKING NEWS– DRBC Executive Director Breaks Protocol”

While they do mention the powerful NY State climate law (which NJ does not have), unfortunately they follow Riverkeeper’s lead and target ED Tambini with No mention of NJ Gov. Murphy or NY Gov: (red highlight mine, boldface in original)

New York State’s nation-leading climate law–the Climate Leadership and Community Protection Act (CLCPA)–clearly states that the approval of all new construction and development here must take climate impacts into consideration. The DRBC’s quiet approval of this permit extension behind closed doors not only violates public trust and governmental transparency, but also goes against the guidelines laid out in the CLCPA by supporting the fossil fuel industry’s behind-the-scenes dealings in toxic oil and gas. Mountainkeeper is extremely disappointed and concerned about this breach in protocol by Mr. Tambini, and we are working with our allies at Delaware Riverkeeper Network to hold the DRBC accountable.

Both groups need to hold their Governors accountable, not the puppet Tambini!

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Pacific Madrone

August 12th, 2022 No comments

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Lovely tree.

Puget Sound backdrop.

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Murphy DEP Proposed Huge Loophole In Clean Water Standards

August 10th, 2022 No comments

“Variance” Would Allow Polluters To Evade Strict Pollution Controls

Would Allow The Discharge Of More Carcinogenic Chemicals Into Public Water Supplies

On July 5, 2022, the Murphy DEP quietly proposed amendments to DEP’s surface water quality standards and water pollution discharge regulations (NJPDES) (no press release on that!).

Among other highly technical but important things, the DEP stealthed proposal of a huge loophole that major polluters have long sought and environmental groups and US EPA strongly opposed.

The DEP proposal would create a “variance” from the requirements to comply with NJ water quality standards and strict pollution discharge permit requirements designed to meet the standards known as “water quality based effluent limits” (WQBELs).

The federal Clean Water Act mandates imposition of strict WQBELs when minimum technology based pollution controls are not adequate to meet water quality standards and the waterbody becomes legally “impaired” (i.e. violates water quality standards and is excessively polluted such that it does not support aquatic life, designated uses, and/or is unsafe to fish or swim in).

Buried in the fine print of the DEP’s complex 84 page proposal, we find a casual allusion to this: (emphasis mine). The DEP proposal states:

The Department is also adding new N.J.A.C. 7:9B-1.16 to establish provisions for the development, adoption, and implementation of water quality standards (WQS) variances. […]

A permittee requesting a WQS variance must justify and demonstrate to the satisfaction of the Department that the SWQS cannot be met due to natural, physical, irretrievable human-caused conditions, or controls more stringent than those required at Sections 301(b) and 306 of the Federal Act, and would result in substantial and widespread economic and social impact, as proposed at N.J.A.C. 7:9B-1.16(b)4.

Keep that phrase “substantial and widespread economic and social impact” in mind.

It is a bureaucratic euphemism for considering the economic costs of industry compliance with strict standards designed to protect public health and the environment.

The “variance” is very broadly defined and can be granted for a single polluter, a group of polluters, or even an entire watershed. The DEP proposal states:

A WQS variance, which satisfied the above requirements, may be proposed to be adopted for a single permittee or multiple permittees. A WQS variance may also be proposed to be adopted for a waterbody segment or an entire watershed.

An example of that would be to allow all industrial and sewer plant discharges on the Delaware River – a drinking water source – to avoid strict permit WQBEL’s for toxic chemicals. The Delaware River is legally “impaired” for multiple toxic pollutants, including mercury and PCBs, and strict discharge permit WQBELs are mandated under the Clean Water Act.

Another example would be to allow all sewage treatment plants on the Passaic River – a drinking water source – to avoid strict discharge permit WQBELs for phosphorus and nitrogen (nutrients)  designed to reduce eutrophication of the river and the Wanaque reservoir that is replenished by polluted water pumped from the river.

Similarly, the Passaic River is legally “impaired” for multiple toxic pollutants and nutrients and strict discharge permit WQBELs are mandated under the Clean Water Act.

Stunningly, the DEP proposal provides an example of how the “variance” would be implemented that should shock the conscience. DEP openly admits that they are elevating consideration of polluters’ compliance costs over public health: (using the word “difficult” to mask economic considerations). The DEP proposal states:

For example, the removal of arsenic from municipal wastewater below 2.0 μg/L using conventional technologies, such as coagulation, sedimentation, filtration, and adsorption may be currently difficult to achieve. The Department anticipates that its proposed WQS variance process will facilitate the identification of methods to achieve the maximum removal possible using conventional technologies.

Polluters want to retain “conventional technologies” and avoid costly upgrades in treatment and pollution controls that are legally triggered by WQBELs.

For decades, major industrial polluters and sewage treatment plants have sought the “variance” as an “exit ramp” or “relief valve”, i.e. as a means to avoid compliance with legally mandated and costly DEP imposed permit WQBELs.

For decades, NJ DEP implemented a surface water quality standards and water pollution control programs that was stricter than the minimum federal Clean Water Act program administered by US EPA. Accordingly, DEP refused to provide the “variance” “relief” sought by polluters and refused to amend NJ’s strict water quality standards to allow for a “variance”.

Historically, EPA held the DEP’s feet to the fire in implementing that stricter NJ State water program and effectively blocked polluters from lobbying DEP to roll back NJ’s stricter clean water program.

That strict DEP policy (i.e. NJ DEP standards are stricter than federal US EPA minimums) was reversed during the Whitman Administration.

Gov. Whitman issued Executive Order #27, which sought to roll back NJ DEP standards to federal minimums.

The Whitman DEP’s proposed rollbacks were strongly opposed by environmental groups, exposed by the press, and condemned by a huge public outcry.

That strong opposition derailed the Whitman DEP “mega-rule” rollback.

The next McGreevey DEP also was pressured by politically powerful corporate polluters to provide regulatory relief via a “variance”.

We blew the whistle on that by leaking a letter from the NJ Chemistry Council to the DEP, thanking DEP for abandoning proposed strict water quality standards for mercury and PCB’s (read the smoking gun NJ CIC letter to DEP).

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Shortly thereafter, following their victory in eliminating DEP’s proposed strict toxic water quality standards, the Chemistry Council next persuaded DEP to draft a regulatory “variance” proposal” (see below):

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Note how DEP attempted to use the same “substantial and widespread economic and social impact” phrase to justify a variance loophole to avoid compliance with toxic PCB water quality standards (plus mercury as well).

We blew the whistle on that too.

We later publicly released another smoking gun DEP staff “Hot Issues” briefing memo to DEP Commissioner Cambell that explained why DEP abandoned proposed strict toxic water quality standards for PCB, mercury and DDT and how DEP would propose a “state-wide variance from water quality standard” to provide relief from struct WQBEL permit requirements (read the whole smoking gun DEP staff “Hot Issues” briefing memo on variance).

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We also revealed a secret DEP meeting with the Chemistry Council and a prior DEP meeting and Power-Point presentation by the Chemistry Council.

Look at the major polluters who attended that secret meeting:

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They make it very clear that they oppose the cost of compliance with the “enormously expensive” DEP’s proposed toxic standards.

They also explicitly threaten to gridlock the DEP permit program with legal appeals of permits, which is exactly the same tactic they successfully used previously to convince DEP to provide permit relief from the mandatory enforcement penalties of the Clean Water Enforcement Act:

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The DEP’s meeting notes from that CIC meeting exposed the agenda. DEP wrote that the Chemistry Council:

“needs legal way to protect from end of pipe limits”

The term “End of pipe limits” is shorthand for legally mandated WQBELs.

Let that phrase sink it: “needs legal way to protect from end of pipe limits” – DEP is admitting that they are protecting toxic polluters!

(this is actually worse than the Christie DEP’s proposed weakening of “mixing zone” regulations)

Based on our disclosures and with behind the scenes help from US EPA, the McGreevey DEP draft “variance” proposal was abandoned and never proposed. We killed it in its crib.

So, after many years of successful opposition, it galls me deeply to see the Murphy DEP propose the huge “variance” loophole sought by corporate polluters, and to do so with absolutely no pushback or opposition by NJ environmental groups or media coverage.

The people of NJ should be outraged that their DEP is caving in to the political pressure of corporate polluters and elevating economic considerations above their duty to protect human health and the environment via enforcement of strict science based regulations.

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