Home > Uncategorized > Murphy DEP Approval of Exemption For Highlands Fossil Power Plant Sets Horrible Precedent

Murphy DEP Approval of Exemption For Highlands Fossil Power Plant Sets Horrible Precedent

Demolition and new construction is not “reconstruction”

DEP playing a dangerous game by relying on WQMP consistency

What happened to the “moral imperative” to avoid fossil infrastructure?

The Murphy DEP just issued approval of an exemption under DEP’s Highlands rules for a proposed new 700 megawatt fossil fueled natural gas power plant in Holland Township along the Musconetcong River in the Highlands Preservation Area (read the news coverage).

So much for Gov. Murphy’s “moral imperative” to invest in energy infrastucture “that does not produce greenhouse gases.”

In issuing the exemption the DEP did not issue all final DEP permits and approvals. The DEP found the project “inconsistent” with the *Upper Delaware Water Quality Management Plan (WQMP). But that WQMP can be amended to incorporate the project and simultaneously the project can seek other DEP permits while the WQMP amendment process is underway.

Instead of playing regulatory games, DEP had the chance interpret the exemption rules to deny the exemption request and send a clear message that a horrible fossil fueled project in the Highlands Preservation Area that threatens a premier trout river is just not acceptable.

They failed to do that.

The DEP’s “Highlands Applicability Determination” found that the project was exempt from the DEP’s strict Highlands regulations because it was “reconstruction” of an existing building and met the standards  on new impervious surface.

But the demolition of a building and construction of a new power plant is not “reconstruction” of an existing building.

It is demolition. It is knock down and rebuild.

The DEP should have distinguished “demolition” and “new construction” from “reconstruction”.

By failing to do so and instead issuing a green light, the Murphy DEP set a terrible precedent which invites abuse.

It will open the door for this project to abuse other loopholes in DEP permit rules and invite many other projects to exploit this Highlands exemption loophole, which was intended to be a narrow exemption for legitimate redevelopment of existing structures, e.g. conversion of an old industrial building to new commercial or loft residential uses, or historic preservation projects that retain the existing structure.

The “reconstruction” exemption was narrow because it’s sole focus and only restriction was on the amount of impervious surface created by the new development.

In contrast, reflecting the Act’s multiple objectives, the DEP Highlands rules apply to a broad set of environmental conditions, and set significant restrictions on new development in order to discourage development and protect water resources and preserve the natural landscape and natural resources.

But the impervious cover restriction is limited to generation of stormwater runoff, which involves protection of water quality and reduced risks of flooding.

In constrast, the proposed new power plant will have huge impacts completely unrelated to the amount of impervious surfaces, such as withdrawal and discharge of millions of gallons of hot water into one of NJ’s finest trout streams, the Musconetcong River.

And tons of carbon from fossil fuel natural gas (along with fine particulates and other air pollutants).

The Musky is a DEP designated “Category One” (C1) Trout Production (TP) water. DEP regulations protect the river from “any change in existing water quality“, including temperature changes.

Trout require cold water and high levels of dissolved oxygen.

The power plant will discharge hot water contaminated by various pollutants.

The most restrictive water quality standard likely is the temperature criteria.

But DEP surface water quality standards and temperature criteria contain loopholes that the power plant will seek to exploit – including “mixing zones” and “regulatory heat dissipation areas””

“Stream temperature” means the temperature of a stream outside of a designated heat dissipation area.

“Heat dissipation area” means a mixing zone, as may be designated by the Department, into which thermal effluents may be discharged for the purpose of mixing, dispersing, or dissipating such effluents without creating nuisances, hazardous conditions, or violating the provisions of this chapter, the Surface Water Quality Standards.

The temperature criteria for a C1 TP water is as follows:

Temperatures shall not exceed a daily maximum of 22 degrees Celsius or rolling seven-day average of the daily maximum of 19 degrees Celsius, unless due to natural conditions

Consideration of “natural conditions” (e.g. lack of shaded canopy along the river) and averaging open the door to abuse. Good consultants can play games that DEP tends to go along with.

But there is another huge loophole in how this criteria is implemented:

Temperature criteria at N.J.A.C. 7:9B-1.14(d) apply unless an alternative effluent limitation is approved in accordance with Section 316(a) of the Clean Water Act, 33 U.S.C. 1326(a).

Properly treated wastewater discharge shall be deemed in compliance with the temperature criteria if the ambient stream temperature measured outside the regulatory heat dissipation area does not increase by more than:

(1) 0.6 degrees Celsius in FW2-TP waters

The DEP’s temperature criteria conflict with the DEP’s Category One anti degradation policy which prohibits “any measurable change in existing water quality”:

“Category one waters” means those waters designated in the tables in N.J.A.C. 7:9B-1.15(c) through (i), for purposes of implementing the antidegradation policies set forth at N.J.A.C. 7:9B- 1.5(d), for protection from measurable changes in water quality based on exceptional ecological significance, exceptional recreational significance, exceptional water supply significance or exceptional fisheries resource(s) to protect their aesthetic value (color, clarity, scenic setting) and ecological integrity (habitat, water quality and biological functions).

But the loophole is created by how changes are “measurable”, e.g. temperature or water quality are measured after a “mixing zone or “heat dissipation area”.

The fact that the Murphy DEP folded on the “reconstruction” exemption does not inspire confidence that they will enforce the C1 water quality standards or other regulations that could block the project.

Those regulations include the Water Quality Management Planning rules and WQMP for the Upper Raritan and the Water Allocation rules.

I could conduct a similar exercise to show loopholes and technical discretion in those rules.

And history has shown that those rules also have loopholes and require the exercise of discretion by DEP. 

The Murphy DEP – like every DEP – has not shown the will the exercise discretion to protect the environment when powerful economic and political forces are involved.

Be warned – if I can think of these loopholes, lobbyists and lawyers and consultants for power companies can too.

Amazingly, there was no public comment on the DEP Highlands Applicability Determination – what the hell are those Wm Penn Foundation funded folks at the Highlands Coalition doing?

[* Correction. Original was based on error in DEP’s letter. DEP wrote “Raritan” instead of Delaware. I transcribed their error. I was thinking 3 paragraphs ahead on regulatory issues as I transcribed the DEP error. Embarrassing mistake. But far worse for DEP to have made it.]

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