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DEP Issues Air Permit to BL England Plant

Plant to Be Served By Private Pinelands Pipeline & Fracked Gas

Climate Impacts Ignored

BL England coal plant – soon to become “Cape May Energy Center”

[Update below]

The Christie DEP just approved another fossil fueled power plant in Cape May County, known as the BL England plant.

The plant was strongly opposed by hundreds of local residents, climate activists, and environmentalists. During the public comment process in May, we requested EPA review of the draft permit, a premature request at the time that is now timely, but I’m not optimistic that EPA will act.

It is hard to imagine a project that: 1) combines so many major environmental problems; 2) illustrates fatal policy flaws in the Christie Administration’s pro-gas policy; and 3) exploits gaping loopholes in the regulatory framework:

• lack of energy planning to assure a need for the new power capacity
• failure to consider environmentally and economically superior alternatives, like efficiency, demand management, and renewable energy
• no siting or coastal zone land use policy – the plant is located on a coastal site that is highly vulnerable to climate change driven sea level rise & storm surge
• there was undue and corrupt influence of lobbyists – criminally indicted “Chairman” David Samson’s discredited Wolff & Samson law firm lobbied the Governor’s Office for approvals
• the plant is to be served by a private pipeline throughout the Pinelands National Reserve
• the source of the gas is Marcellus shale fracking
• the DEP regulatory framework is broken and fails to consider key issues, like climate impacts

This permit shows how absurdly pro-gas Gov. Christie is – NJ Spotlight story:

If the project moves forward, however, it would continue a trend to place increased emphasis on natural gas as the fuel to provide electricity to homes and businesses, a policy strongly endorsed by the Christie administration. B.L. England is the fifth new gas power plant either built or pending in the state since the governor took office. …

The repowered plant would be able to emit up to 1.5 million tons of carbon dioxide a year, making it the biggest polluting power plant in South Jersey for global warming pollution, environmentalists said.

Those other new gas plants are West Deptford Energy Center, Woodbridge Energy Center, Newark Energy Center, and PSEG Fossil, LLC Sewaren Generating Station

The DEP response to public comments admits that there are fatal flaws in how DEP regulates power plants.

Climate impacts ignored

The NJ DEP defined greenhouse gases (GHG) as air pollutants over a decade ago and pledged to adopt mandatory GHG emissions regulations (see this for the 2005 DEP rule):

… the Department believes that mandatory actions to control CO2 emissions will ultimately be necessary to achieve CO2 emission reductions that place the State on a long-term trajectory toward emissions levels (considering the State’s current contribution to global CO2 emissions) necessary to achieve global atmospheric CO2 concentrations that would be required for climate stabilization. Although voluntary programs have led to incremental emissions reductions, absolute CO2 emissions in the State continue to rise.

That 2005 DEP rule was supposed to be just the first step in regulating GHG emissions. The necessary next regulatory steps never happened. We’ve wasted over a decade.

Meanwhile, at the regional level, Gov. Christie rescinded NJ’s market based pollutant trading scheme designed as an alternative to regulation known as “RGGI”. At the national level, the Obama EPA Clean Power Plan is flawed and is being legally challenged by many States, including the Christie administration.

Given the imperative to take State level action to respond to flawed regional and national efforts, I want to outline a few of the gaping loopholes in the current NJ DEP regulatory framework. This can help provide an activist’s agenda so that the Legislature and the next Administration can work to  close them.

Large Carbon footprint – arbitrary DEP assumption of net reduction

According to DEP, the plant would be a major carbon source.

There is absolutely no evidence provided by DEP to support DEP’s arbitrary assumption that the plant would “displace” dirtier power and produce a “net reduction in CO2″. DEP response to public comment:

As for the CO2 footprint, the potential to emit (PTE) for the repowered power plant would be 1,522,667 TPY, which is less than the PTE for the existing plant. As the repowered facility would be an efficient, new power plant, it is expected that it would displace power generated from older, less efficient coal and natural gas fired power plants in the region, resulting in a net reduction in CO2.

Global Warming Response Act Goals Are Ignored

The DEP failed to consider how the plant could meet the greenhouse gas emission reduction goals of the Global Warming Response Act. DEP response to public comment:

Response: New Jersey is developing and implementing various types of GHG emissions mitigation goals in order to understand future emission levels and emissions reductions required to meet the New Jersey GWRA goal of 2050. The GWRA 2050 target requires New Jersey to reduce GHG emissions by 80 percent from 2006 levels by 2050. This limit is equivalent to 25.4 million metric tons (MMT) of CO2 equivalent. The NJDEP has developed four hypothetical scenarios that represent outcomes of 2050. The “base case” scenario represents New Jersey’s current or “business as usual” path, indicating that New Jersey would continue with the present electricity mix. The three other scenarios would include switching coal generation to natural gas, as the BL England repowering project would. For more information see “Statewide Greenhouse Gas Inventory” at http://www.nj.gov/dep/aqes/sggi.html

As we noted in a 2007 Star Ledger Op-Ed, written shortly after the GWRA was enacted, it lacks teeth:

The law — contrary to widespread media coverage — does not legally cap greenhouse gas emissions or mandate emissions reductions on any major pollution sources. As a result, the law’s theoretically “mandatory” goals are unenforceable and therefore a fiction. They amount to the same voluntary approach backed by the Bush administration.

Specifically, the law provides no regulatory authority, funding or staff for the DEP to take the necessary steps to implement and enforce the emission reduction goals. Instead, the DEP is kept on a tight leash and merely directed to develop a set of recommendations on how to meet the goals and to submit that proposed plan to the Legislature by June 2008. In passing the law, the Legislature merely kicked the can down the road, postponing hard choices for well over a year.

The Act must be amended and given teeth. The US EPA Obama Clean Power Plan is inadequate and suffers from some of the same fatal flaws as NJ DEP regulations. DEP response to public comment:

Currently, CO2 emissions are not subject to NJDEP regulations. However, as explained in Response to Comments 1 and 6, the proposed operating permit does regulate CO2 emissions from the proposed NGCC plant as required by the NSPS for GHGs emitted by new power plants. The applicable Federal USEPA limit for CO2 is 1,000 lb/MWhr (from 40 CFR Subpart TTTT).

“State of the art” in pollution control (SOTA) far too narrow

The DEP regulations define “state of the art” in pollution control (SOTA) very narrowly. According to DEP response to public comment:

Comment: … The commenters stated that regulated GHG emissions could be reduced or eliminated by energy efficiency, reduction in energy demand, demand management, and/or renewable energy; none of these “pollution control” methods were considered. …

Response: Pursuant to N.J.A.C. 7:27-22.2, New Jersey Title V Operating Permit Requirements apply to a facility as defined in N.J.A.C 7:27-22.1. At N.J.A.C. 7:27-22.1, a facility consists of “the combination of all structures, buildings, equipment, control apparatus, storage tanks, source operations, and other operations that are located on a single site or on contiguous or adjacent sites and that are under common control of the same person or persons.” Thus, requirements for off-site measures that are not under control of the owners or operators, such as reduction in energy demand or demand management, are beyond the scope of the NJDEP’s authority to review an operating permit application. Also, the NJDEP cannot redefine a project to include renewable energy.

This DEP rule contrasts with a far broader approach under EPA federal rules. Pollution control technology is generally understood and defined by EPA regulations:

“the term “control technology” is defined broadly to be consistent with section 112(d)(2) of the Clean Air Act to include measures, processes, methods, systems or techniques which reduce the volume of, or eliminate emissions of, HAP through process changes, substitution of materials or other modifications; enclose systems or processes to eliminate emissions; collect, capture or treat HAP when released from a process, stack, storage or fugitive emissions point; are design, equipment, work practice, or operational standards; or a combination of the above.

Obviously, “State of the Art” in pollution control for greenhouse gases MUST include consideration of energy efficiency, demand management, and renewable energy. That may require legislation or perhaps the next DEP Commissioner can issue regulations.

Lifecycle emissions are not considered

The DEP failed to consider secondary and cumulative impacts, based on lifecycle emissions. DEP response to comment:

30. Comment: Commenters stated that the draft operating permit did not conduct a comprehensive analysis of the lifecycle emissions of GHGs, including emissions from pipelines, compressor stations, and hydraulic fracturing wells. (5, 7, 24) Multiple commenters stated that, from “cradle to grave,” natural gas is just as bad as coal.

Response: Pursuant to N.J.A.C. 7:27-22.2, New Jersey Title V Operating Permit requirements apply to a facility as defined in N.J.A.C. 7:27-22.1 (see the Response to Comment 8). The NJDEP evaluates the permit applications as submitted, and approves or denies applications based on their compliance with applicable State or Federal air pollution control rules and regulations. Emissions of GHGs from the pipelines, compressor stations, and hydraulic fracturing wells, which are not part of or under the control of the facility, are outside the scope of the NJDEP’s regulatory authority with regard to review of this permit application.

There are several other significant gaps in the environmental and public health impact review of this permit, including failure to integrate with the Pinelands Commission CMP or consider energy facility siting vulnerability along the coast as a result of climate change driven sea level rise.

I only focus above on the climate related flaws in order to help frame a climate agenda by focusing on the key regulatory changes that must be made.

More to follow.

[Update: 8/8/16 – David O’Reilly of the Philly Inquirer has a good story, see:

N.J. power plant dispute: Will coal-to-gas just keep an environmental ‘dinosaur’ alive?]