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This Is Why DEP Will Not Deny The Newark Power Plant Air Permit

January 15th, 2022 No comments

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.

Time To Shut Down NJ’s Highly Polluting And Racist Garbage Incinerators

December 30th, 2021 No comments

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)

The USEPA calculated that on average, approximately 1.67 metric tons of CO2 equivalents are avoided for every ton of municipal solid waste (MSW) recycled. If the MSW recycling rate increases from 34% to 50%, a total of 7.7 million metric tons of CO2 equivalent in avoided Greenhouse Gas emissions would result.

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.

“WolfeNotes” blog launched – We aim to hold corporate polluters and government accountable

August 31st, 2009 1 comment

*** Apologies – NJ.Com took down ALL the photos, which were originally published on my “NJ Voices” column at NJ.Com. I was able to save the text, but not the photos. What assholes.

Below is the post that got my blog banned by the Star Ledger on June 10, 2009.

So I thought it would be a good first post to use to launch my new blog, “WolfeNotes.com” .

That banned post illustrates the reasons that I blog and some of what I hope to accomplish. I try to combine serious ideas, visual images, and analysis to call out the bullshit I see in government, politics, and media every day.

I will focus primarily on environmental issues, not only because I love the natural world, but because the same forces that are destroying the environment also are responsible for our current accelerating economic and political collapse.

Hopefully, I will remain too controversial for the Star Ledger. And perhaps someday we all will recall that I.F. Stone famously said, all governments lie. Yet our media institutions have lost touch with that fundamental truth and not only fail to hold government accountable, but often accept government spin at face value, which then becomes the dominant narrative (conventional wisdom, or propaganda) .

But, lets not blame government per se. Scratch the surface of almost any government lie and you find a cover for corporate power and economic interests.

As political scientist Sheldon Wolin wrote in “Democracy Incorporated: Managed Democracy and the Specter of Inverted Totalitarianism” (excellent review here), our democratic institutions have been hijacked by corporate interests and our Republic transformed to a global empire.

And there is little indication that the Obama “change”  is anything more than rhetoric.

According to an interview with Wolin in Chris Hedges’s new book “Empire of Illusion: The End of Literacy and the Triumph of Spectacle” (Hedges interview here):

The basic systems are going to stay in place; they are too powerful to be challenged.” Wolin to me when I asked him about the Obama administration. “This is shown by the financial bailout. It does not bother with the structure at all. I don’t think Obama can take on the kind of military establishment we have developed. This is not to say that I do not admire him. …I think he is well meaning, but he inherits a system of constraints that make it very difficult to take on these major power configurations. I do not think he has the appetite for it in any ideological sense. The corporate structure is not going to be challenged. There has not been a word from him that would suggest an attempt to rethink the American imperium.”

So, this is the frame of reference I will try to apply to the more circumscribed world of NJ environmental issues and politics.

Let me know what you think – one of my aims is to spur dialogue.

 

Thrifty Individual Reducing Carbon FootPrint

“In our time, political speech and writing are largely the defense of the indefensible. Things like the continuance of British rule in India, the Russian purges and deportations, the dropping of the atom bombs on Japan, can indeed be defended, but only by arguments which are too brutal for most people to face, and which do not square with the professed aims of the political parties. Thus political language has to consist largely of euphemism, question-begging and sheer cloudy vagueness. Defenseless villages are bombarded from the air, the inhabitants driven out into the countryside, the cattle machine-gunned, the huts set on fire with incendiary bullets: this is called pacification. Millions of peasants are robbed of their farms and sent trudging along the roads with no more than they can carry: this is called transfer of population or rectification of frontiers. People are imprisoned for years without trial, or shot in the back of the neck or sent to die of scurvy in Arctic lumber camps: this is called elimination of unreliable elements. Such phraseology is needed if one wants to name things without calling up mental pictures of them.”

George Orwell, “Politics and the English Language,” 1946
http://www.mtholyoke.edu/acad/intrel/orwell46.htm

Vacationing close to home – camping in public parks

(warning – graphic images on the flip -)

“The Detainee Photographic Records Protection Act of 2009″
http://gawker.com/5285064/yahoo-nukes-mans-photos-over-obama-comments

[Update: those Abu Ghraib images were what the Star Ledger editor refused to allow his readers to see.

Within 5 minutes of posting that link (with a graphic image warning to readers) the Editor called me at home and screamed at me, terminated my NJ Voices column, and took the post down.

So much for the so called “free press”.

Those images were published all over the world, but not in the US press.

Even worse, President Obama supported the bill sponsored by Connecticut Senator Joe Lieberman and loathsome Sen. Graham (SC)) to amend the Freedom of Information Act to exempt certain military images from FOIA public disclosure (targeting the Abu Ghraib images, of course).

I wrote to criticize that outrageous and unconstitutional legislation. So much for my so called intellectual freedom and political rights.

And people wonder why I am angry and bitter. ~~~ end update]

 

Read more…

Camden Residents Left in the Dust

July 21st, 2009 No comments
Camden is NJ's poorest and most segregated city - ground zero for environmental injustice

Camden is NJ’s poorest and most segregated city – ground zero for environmental injustice

 

NEW JERSEY ALTERS HEALTH STUDY UNDER INDUSTRY PRESSURE –  Industry Allowed Private Meetings to Lobby for Changes in Camden Study

Washington, DC – Facing a lawsuit, the New Jersey Department of Environmental Protection has released documents outlining how an air pollution study of Camden neighborhoods was re-written to allay industry objections. The released e-mails depict a clubby, closed door climate in which the state regulators seek to assuage industry concerns even while keeping the affected community in the dark, according to Public Employees for Environmental Responsibility (PEER).

At issue is an October 6, 2008 study by DEP scientists in partnership with the University of Medicine & Dentistry of New Jersey entitled “Final Report: Contribution of Particle Emissions from a Cement Facility to Outdoor Dust in Surrounding Community”. It assesses how much dust is blowing from piles of granulated blast furnace slag at the St. Lawrence Cement Facility onto adjacent Camden neighborhoods. The report concluded that:

  • There was a significant impact on nearby homes: “The estimated contributions of cement dust to outdoor dust measured by deposition dust samplers ranged from 4.9% to 18.2% … and 5.6 to 21.8%”; and
  • Simple controls are available: “A cover over the piles would be a reasonable and well tested way to control these fugitive emissions.

After this final report was posted on the DEP website, industry consultants sent objections to Nancy Wittenberg, DEP Assistant Commissioner for Environmental Regulation and a former lobbyist for the New Jersey Builders Association. DEP removed the “final report” from its website and Wittenberg set up a closed-door June 2, 2009 meeting with industry consultants to review their concerns.

In response to an Open Public Records Act request filed by former DEP employee Bill Wolfe for the final report and agency communications with industry, the agency initially claimed that no documents could be released because they were “deliberative” in nature and covered by “attorney-client privilege”. After PEER informed DEP that it was preparing to file suit challenging the basis for non-disclosure as bogus, on July 17, 2009 DEP released the requested material “except for the revised study which is slated for publication later this week, according to an agency official.

“In New Jersey, even science is negotiable,” stated PEER Senior Counsel Paula Dinerstein, who helped prepare the lawsuit. “Notably left out of the loop are the people in Camden who have to breathe this stuff daily and get no say as to whether a tarp over the slag heaps would be a commonsense step.”

This also appears to be yet another recent instance where state political appointees inappropriately screen scientific work. In fact this June, DEP formalized its political review process for all technical reports.

“DEP has become a serial offender against government transparency and scientific integrity,” added Wolfe. “This is only one sample of DEP cooking the books and then violating OPRA to cover the smell.”

###

Read the withdrawn Camden dust study “final report”

Look at the e-mail exchanges between DEP officials and industry

View the court-house steps OPRA reversal by DEP

See the industry comments on the dust study

Examine how DEP political appointees vet scientific and technical reports

Art and Freedom

September 12th, 2008 1 comment

*** Apologies – NJ.Com took down the photos, which were originally published on my “NJ Voices” column at NJ.Com. I was able to save the text, but not the photos. What assholes.

“He who sacrifices freedom for security deserves neither.”
Ben Franklin http://en.wikiquote.org/wiki/Benjamin_Franklin
As a poet, I would have to say that 9/11 changed the language itself … 9/11 is a big abstraction. … In the name of 9/11 and in the name of the war on terror, phrases like “weapons of mass destruction” and “enhanced interrogation” have entered our political vocabulary. These phrases, for me, divorce language from meaning, and thus divorce action from consequence. If you’re engaged in enhanced interrogation you’re not engaged in torture, and thus, we in society come to embrace torture in the name of security. I think we have to do whatever we can to combat this tendency in the language. The fact is that this language is used to foster a culture of fear so that in turn people will act against their own interests. And that’s why we’re now embroiled in two wars
Martin Espada. Poet and Professor, University of Massachusetts
PBS Newhour – 9/11/08 MP3 http://www-tc.pbs.org/newshour/rss/media/2008/09/11/20080911_sevenyears28.mp3
Espada’s website:http://www.martinespada.net/
“In our time, political speech and writing are largely the defense of the indefensible. Things like the continuance of British rule in India, the Russian purges and deportations, the dropping of the atom bombs on Japan, can indeed be defended, but only by arguments which are too brutal for most people to face, and which do not square with the professed aims of the political parties. Thus political language has to consist largely of euphemism., question-begging and sheer cloudy vagueness. Defenseless villages are bombarded from the air, the inhabitants driven out into the countryside, the cattle machine-gunned, the huts set on fire with incendiary bullets: this is called pacification. Millions of peasants are robbed of their farms and sent trudging along the roads with no more than they can carry: this is called transfer of population or rectification of frontiers. People are imprisoned for years without trial, or shot in the back of the neck or sent to die of scurvy in Arctic lumber camps: this is called elimination of unreliable elements. Such phraseology is needed if one wants to name things without calling up mental pictures of them.”
George Orwell – “Politics and the English Language” 1946
http://www.mtholyoke.edu/acad/intrel/orwell46.htm
On the shoulders of these giants, I share my pedestrian experience.
Yesterday, I went to US District Court in Newark to listen to oral argument in a case filed by Edison Wetlands Association seeking to force a toxic polluter to stop discharging toxic chemicals to the Raritan River. A long and disgraceful story.
But, as I approached the Federal Square complex, a beautiful piece of sculpture caught my eye. Of course – since a core part of my mission is amateur photojournalism – I moved to take a picture.

In response, US Federal marshall Gerald Mauriello aggressively swooped in, sternly advised that I was on “federal property”, and “taking pictures of federal buildings is prohibited”. He demanded personal identification. I asked on what legal basis he did so, under the impression that we have both Constitutional and inalienable rights, and there is no US citizen identification card (at least not yet).
To which he angrily replied: “Don’t you know what f-cking day it is!”

US Marshall Mauriello rushes to avert terrorism because – as the Leader and Decider has repeated – the terrorists hate our freedom.

Feel safer now?

Thomas Paine – patriot and truth teller
“Don’t tread on Me”

Hey Mr. US Marshall Mauriello – is it now illegal to photo these federal buildings? Just askin’.

US Supreme Court – note the couple kneeling in prayer on the steps