Home > Uncategorized > Murphy DEP Admits That Pipeline Construction Regulations And DEP Oversight Are Lax

Murphy DEP Admits That Pipeline Construction Regulations And DEP Oversight Are Lax

A Series Of Pipeline Construction Accidents Illustrate The Dangers of Deregulation

DEP just lifted suspension of permits and authorized resumption of Horizontal Direction Drilling

sinkhole collapse on River Road, Montague, NJ (7/9/13)

sinkhole collapse on River Road, Montague, NJ (7/9/13)

You are about to read a very rare story. A story of a bureaucracy strongly suggesting – almost flat out admitting – that they made mistakes and their regulations are lax. This is virtually unheard of. Follow.

For years, we have been documenting serious failures during construction of NJ pipelines and explaining how these events expose lax regulatory oversight and enforcement by NJ DEP,  (and be sure to hit the links to awesome photos!)

DEP made no regulatory changes in response to these disasters.

During the Christie Administration, we warned that loopholes in current laws (like the Highlands Act exemption for linear utility development) and DEP’s continued efforts to expand the use of and rely on cursory regulatory oversight of pipelines via mechanisms like “General Permits” (GP’s) and “Permits-By-Rule” (PBR) would result in future environmental disasters.

And we criticized the Christie DEP’s rollbacks of lax freshwater wetlands, stream encroachment, and stormwater management rules because, among other things, they further weakened DEP’s regulatory oversight of pipeline construction.

During legislative oversight hearings on those DEP regulatory rollback proposals, DEP’s Deputy Commissioner Ray Cantor and Assistant Commissioner Ginger Kopcash flat out lied to legislators, to the media, and to the public and strongly denied our claims.

All those rollbacks have not been revoked by the Murphy DEP.

So, we were not surprised by the most recent accident by NJ Natural Gas this summer:

In response to that disaster, environmental groups filed a motion to stop construction.

But we were surprised by the failure of the media and environmental groups to analyze the underlying cause of the failure.

We were disappointed by the failure to investigate DEP’s lax oversight and educate and focus public outrage on the fact that pipeline construction is governed by lax DEP regulations, including Freshwater Wetland General Permit #2 (“Underground Utility Lines” (p. 63) and Flood Hazard Act Permit-By-Rule #36 (“placement of an underground utility line using directional drilling or jacking”  p. 74)

FWW GP#2 completely deregulates HDD:

(b) If a utility line is jacked or directionally drilled underground, so that there is no surface disturbance of any freshwater wetlands, transition areas, or State open waters and there is no draining or dewatering of freshwater wetlands, no Department approval is required under this chapter.

[Important context: keep in mind that the FWW regulations are where DEP codifies its authority under Section 401 of the Clean Water Act to issue a “water quality certificate”. Several other States – but not NJ – have used that authority to kill proposed pipelines. HDD under wetlands is not regulated so not subject to a 401 WQC review.]

FHA PBR #36 – for HDD under rivers and streams – is basically a self certification by the pipeline company, with NO DEP or public review.

This is crazy. Insane. Irresponsible. Reckless. Dangerous. Foolish. Stupid. Obscene.

Nor were we surprised that – despite the fact that even the lax DEP regulations gave DEP the power to revoke the GP and PBR permits and require a more rigorous site specific “Individual Permit (IP), – that via letter of November 9, 2020, DEP lifted the suspension of permits and authorized resumption of pipeline construction and “Horizontal Direction Drilling” (HDD). (and I saw no criticism or media coverage of this).

So, we thought we’d ask DEP what their rationale was.

In a November 20, 2020 email to DEP, I wrote: (I’ve omitted DEP staff names):

Greetings – I was recently forwarded the Department’s November 9, 2020 letter to NJNG regarding suspension and reinstatement of FWW and FHA approvals and have a few questions.

I read the applicable regulations (freshwater wetlands and stream encroachment) and understand that the Department had the option of revoking the GP and PBR and mandating a new site specific individual permit.

Given the circumstances, I’m curious as to what the Department’s rationale is for not mandating an IP.

Is that written down anywhere?

I noted that NOV’s were issued. Has the Department finalized those and imposed enforcement fines and/or penalties?

Finally, I’m curious about the DEP “request” that DEP compliance and enforcement staff be on site for HDD resumption. Why was this made as a “request” and not a formal permit condition or enforcement Order?

Appreciate your timely response.

Respectfully,

But what we were shocked by was – after years of being ignored and sometimes even personally attacked by DEP – the rapid response we got from DEP.

We were shocked not only by how quickly DEP responded, but by what they admitted. DEP replied, not with obfuscation weeks or days later, but just hours later. DEP wrote:

Mr. Wolfe

The Division evaluated the strategy for the remaining HDDs submitted by NJNG and consulted with technical experts within the Department and with New Jersey Geologic Service.  Based on our review and the oversight that will occur with the Department’s Enforcement bureau, the Department felt it was appropriate to re-instate the permit.  The current regulations essentially deregulate HDD under freshwater wetlands so there were certain limitations on the actions that the Department could take.  However, based on information that we have received from multiple interested parties, the Department is evaluating the rules to see if changes to the regulations are necessary.

I don’t have a lot of information on the status of the NOV.  That is being handled by our Enforcement group.  If you would like information on the status of that, you can reach out to xxxxxxxxxxx

Last, the Department will have oversight over the HDD resumption.  The letter mentions a “request” but we conveyed to NJNG in meetings that we wanted to have representatives onsite.

Let me emphasize and repeat that.

According to the Murphy DEP:

“The current regulations essentially deregulate HDD under freshwater wetlands so there were certain limitations on the actions that the Department could take. However, based on information that we have received from multiple interested parties, the Department is evaluating the rules to see if changes to the regulations are necessary.

We look forward to DEP’s upcoming “Climate PACT” rules closing these loopholes and strengthening the current broken regulations and regulatory oversight.

In the meantime:

  • I hope that Senate Environment Committee Chairman Bob Smith reads this. Maybe he could dust off his failed legislative veto Senate Resolution SCR 66 to declare even more DEP regulatory rollbacks “inconsistent with legislative intent”.
  • I hope that Ray Cantor (now at NJ BIA) and Ginger Kopcash (who is still at DEP!) read this and reflect upon their lies and that their credibility suffers for it.
  • I hope that the NJ fake green groups, who signed off on the Bob Martin/Senator Sweeney “compromise” to avoid legislative veto and insisted that pipelines could be stopped and adequately regulated under DEP regulations are ashamed of their ignorance, weakness and corruption.
  • And I hope the NJ press corps – especially NJ Spotlight – who wrote this as a “he said she said” story hold the liars and dangerous fake green fools accountable.

[End Notes:

1. This post is limited in scope to pipeline construction and DEP’s land use regulations.

There are far more significant flaws in DEP’s regulations – which DO NOT CONSIDER OR REGULATE GREENHOUSE GAS EMISSIONS from major fossil infrastructure projects, like pipelines (and the fracking wells, the pipeline transmission & distribution network, or the business, industry and residential consumers of the gas/fossil fuel).

This is why – at a minimum – there must be a moratorium on pipeline and fossil infrastructure approvals until these regulatory flaws are fixed.

2. There is a  “public interest” (see p.114) provision that Ray Cantor sold to the Green Mafia and Senator Smith as the solution to “fix” the Category One stream buffer loopholes and thereby dodge a legislative veto (they called it the “concurrent proposal” at the time) (June 20, 2016 proposal)

Proposed N.J.A.C. 7:13-11.2(d)3 requires the applicant to demonstrate that the proposed regulated activity is in the public interest. The Department will determine if a proposed activity is in the public interest by considering the factors proposed at N.J.A.C. 7:13-11.2(d)3i-vi

Obviously, it was a diversion, will not work, and did not address there real regulatory flaws. Cantor is good a duping dupes.

The same”public interest” deal that was negotiated and signed off on by the Green Mafia is now also included as a massive loophole in the environmental justice bill Gov. Murphy just signed into law.

That Zombie “public interest” provision does not close the loopholes in DEP stream encroachment (buffer) regulations. (see p.114 above link) and now it guts the EJ law.

That “public interest” provision the Green Mafia agreed to now serves as a massive loophole in the EJ law.

It allows DEP to over-ride a factual finding that pollution causes disproportionate burdens (which triggers mandatory permit denial) and instead issue the permit if it is in the “public interest” (it must be a “compelling” public interest, whatever that means).

As I recently wrote:

Worse, the DEP permit denial authority is destroyed by an “exception” – a huge loophole provision that allows DEP to waive the mandatory permit denial and issue the permit if a polluter claims that there is a “compelling public interest” for the industry or facility seeking the permit, even if there are disproportionate and unjust impacts.

There is gross incompetence and political cowardice in some quarters of the environmental community.

It is astonishing that these same useful idiots were able to sabotage the C1 buffer rollback legislative veto and years later insert a Trojan horse in the environmental justice law.  That just proves there are no consequences for incompetence and no accountability for lying.

3. I failed to note that environmental groups Pinelands Preservation Alliance and Sierra Club quietly met with DEP on September 8 and their lawyers wrote a “please, pretty please, do the right thing” followup letter on October 2, 202o.

Stunningly, that letter failed to even mention the above applicable flawed DEP regulations – which govern the pipeline and strictly limit DEP’s powers – or demand that these regulations be revised. WTF?

Instead, they focused on what amount to legal platitudes, closing with this nothing burger:

Screen Shot 2020-11-22 at 12.08.00 PM

How can something like this happen (when the lawyers had the DEP suspension documents so knew what regulations applied?) ~~~ end]

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