Trump EPA Urged To Kill "Woke" NJ DEP Air Permit For Newark Power Plant

Murphy DEP Blatantly Violated Longstanding NJ & Federal Laws

For my entire career, since 1985, I've advocated broad and creative interpretations of DEP's regulatory authority to protect public health and the environment and aggressive enforcement of those powers. No one has been a stronger and more consistent longtime advocate in that regard. I could provide numerous examples of how that advocacy resulted in major new DEP regulatory policies.

But I never argued that DEP could take unilateral action in the absence of any legislative authorization, ignore administrative law, mislead the public, and engage in sham.

So it is with some trepidation today I filed a public petition to the Trump US EPA to reject a NJ DEP Title V Clean Air Act operating permit for the proposed gas power plant at the Passaic Valley Sewerage Commission plant in Newark NJ.

What the Murphy DEP has done with respect to that permit is an egregious and lawless abuse of power. A regulatory bridge far too far. Simply put, DEP can't do that (and they know it). The DEP Commissioner can not simply issue a unilateral Order - in the absence of mandated notice and comment rulemaking and explicitly as a substitute for that rulemaking - then retroactively apply that Order to a permit application previously submitted, and impose permit requirements based on that Order. No way.

Federal Clean Air Act regulations allow any person to submit a petition to challenge a Title V permit. Under EPA Title V permit regulations, a Title V permit may not establish “new” permit conditions.

In order to argue my petition before the Trump EPA, I had to make what may be perceived as retrograde anti-EJ arguments that exposed the flaws, loopholes, and DEP gaslighting on NJ's environmental justice law and DEP Commissioner LaTourette's Order allegedly implementing that law. So be it.

In the most basic sense - whatever your position on the merits of the PVSC project and Newark EJ issues - what DEP did during the course of the review and approval of this permit was egregiously lawless.

You can't criticize Trump for bypassing Congress via issuing Executive Orders and challenge EPA unilaterally rolling back regulatory requirements without complying with administrative law requirements and at the same time support what DEP did in issuing this permit.

DEP engaged in exactly the same abuses as the Trump EPA is engaging in.

If US EPA rejects my petition, that means that the EPA has green lighted what DEP did in this permit with respect to environmental justice (a "woke" program according to Trump); renewable energy policies; and climate adaptation risks and policies.

If EPA rejects the petition, that would mean that EPA would set national precedents on these controversial issues.

As I wrote in my EPA petition, I strongly doubt that the NJ Chamber of Commerce, Business and Industry Association, NJ Builders Association, and NJ Chemistry Council would stand for DEP imposing the kind of permit conditions that DEP did in the PVSC permit.

DEP would never attempt to impose the kind of review process and permit conditions they imposed on PVSC in a permit for a refinery or chemical or pharmaceutical plant.

If DEP approves the petition, then the PVSC air permit is back to square one. That would mean that the environmental justice law applied to the permit and would force the DEP's hand to deny the permit.

Recall that DEP has said that they can't flat out deny the permit because it is not subject to the environmental justice law.

The lawyers and policy wonks can read my letter to NJ DEP Commissioner LaTourette and petition to US EPA below.

--------- Original Message ----------

From: Bill WOLFE

To: "shawn.latourette@dep.nj.gov" <shawn.latourette@dep.nj.gov>, senbsmith <SenBSmith@njleg.org>, sengreenstein <sengreenstein@njleg.org>, "senmckeon@njleg.org" <senmckeon@njleg.org>, "senzwicker@njleg.org" <senzwicker@njleg.org>, "Hansen, Eric" <EHansen@njleg.org>

Cc: "Ruvo.Richard@epa.gov" <Ruvo.Richard@epa.gov>, "chan.suilin@epa.gov" <chan.suilin@epa.gov>, "Zeldin.lee@epa.gov" <Zeldin.lee@epa.gov>, "Spangler, Matthew" <Spangler.Matthew@epa.gov>

Date: 05/27/2025 5:44 PM EDT

Subject: Metromedia decision and Administrative Order

Dear DEP Commissioner LaTourette:

As you know, the lead NJ case law for determining when agency action constitutes administrative rule-making, within the meaning of the Administrative Procedure Act, N.J.S.A. 52:14B-1 to -15 (APA), is Metromedia, Inc. v. Director, Div. of Taxation 97 N.J. 313 (1984)

https://law.justia.com/cases/new-jersey/supreme-court/1984/97-n-j-313-0.html

As you also must know, according to the factors laid out in the Metromedia decision, your Administrative Order NO. 2021-25 constitutes rulemaking

https://dep.nj.gov/wp-content/uploads/ej/docs/njdep-ao-2021-25-environmental-justice.pdf

AO #2021-25 has not been promulgated in accordance with notice and comment rulemaking as required by NJ and federal AdministrativeProcedure Acts.

Accordingly, AO #2021-25 may not be enforced to effect proceduraland/or substantive requirements in regulatory permit programs in the absence of rulemaking.

As you know, the Department is in fact enforcing AO #2021-25 in DEP permit programs.

Specifically, today I filed a public petition with EPA objecting to the Department's enforcement of AO 2021-25 in the Clean Air Act Title V permit issued to the Passaic Valley Sewerage Authority (see the petition below).

I urge the Department to voluntarily revoke and reissue the PVSC TitleV permit before EPA renders final agency action in response to the petition. The regulatory implications of an EPA objection to that permit are not in the public interest.

I urge the Department to revoke and reissue any and all other permits that enforced or applied AO #2021-25.

I also urge the Department to cease and desist from further enforcement of AO #2012-25 in permits in the absence of required rulemaking.

As you also know, the NJ Environmental Justice Act did not authorize the Commissioner to adopt an Administrative Order and enforce it in DEP permit programs in the absence of permit programs.

Finally, as you also know, NJ legislation authorizes the Department to issue emergency rules and/or to adopt technical manuals as alternatives to full blown notice and comment rulemaking, in cases that truly warrant expedited regulatory and/or permit actions. The Department has not utilized these alternative streamlined tools.

I urge legislators to conductor oversight of these important issues.

Bill Wolfe

---------- Original Message ----------

From: Bill WOLFE <

To: "Zeldin.lee@epa.gov" <Zeldin.lee@epa.gov>, "titleVpetitions@epa.gov" <titleVpetitions@epa.gov>

Cc: "Ruvo.Richard@epa.gov" <Ruvo.Richard@epa.gov>, "chan.suilin@epa.gov" <chan.suilin@epa.gov>, "shawn.latourette@dep.nj.gov" <shawn.latourette@dep.nj.gov>, Bill WOLFE <bill_wolfe@comcast.net>

Date: 05/27/2025 10:59 AM EDT

Subject: Title V Petition - 40 C.F.R. § 70.8(d). - NJ DEP

Via email

May 27, 2025

Lee Zeldin, AdministratorU.S. Environmental Protection Agency

1200 Pennsylvania Ave NW

Washington, DC Lee 20460

Dear Administrator Zeldin:

This petition is filed pursuant to Section 505(b)(2) of the Clean Air Act, 42 U.S.C. § 7661d(b)(2), and 40 C.F.R. § 70.8(d).

The petition raises procedural and substantive objections to the review and approval of a final Title V Operating Permit issued by New Jersey Department of Environmental Protection (NJ DEP) to the Passaic Valley Sewerage Commission (PVSC).

The petition is timely filed, as the 60 day review clock tolls on May 31, 2025. The EPA 45-day review period ended on March 31, 2025. The 60-day EPA petition period commenced on April 1, 2025 and ends on May 31, 2025.

The petition is filed by Bill Wolfe, a citizen who filed timely substantive public comments on the draft permit issued by the NJ DEP. The NJ DEP responded, in part, to those comments in a "Hearing Officer's Report and Response to public comment" document made a part of the the final permit.

Petitioner requests, as set forth below, that the EPA Administrator object to this NJ DEP Title V permit on the basis that the NJ DEP review and approval of the subject Title V Permit was procedurally and substantively defective and not in accordance with law.

The NJ DEP permit was based upon an "environmental justice" review and the final federal Title V permit mandated permit conditions that were based on the EJ review. Accordingly, the permit conflicts with a federal court decision regarding the scope of the Clean Air Act with respect to "environmental justice" and disparate impacts. Specifically, a federal District Court decision in Louisiana found that Congress did not authorize EPA to implement an environmental justice program under the Clean Air Act, see: U.S. District Court Judge Cain, Judgment pursuant to the ruling in State of Louisiana v. EPA, No. 2:23-cv-00692, W.D. La. Jan. 23, 2024, Aug. 22, 2024.

The permit raises issues regarding the scope of the Clean Air Act with respect to regulatory requirements similar to those rejected by the Supreme Court in the Obama EPA Clean Power Plan, see: West Virginia v. EPA

https://www.supremecourt.gov/opinions/21pdf/20-1530_n758.pdf

The NJ DEP permit review process violated State and federal Administrative Procedure Act requirements.

The NJ DEP permit also conflicts with numerous Executive Orders issued by President Trump

On or about February 13, 2025, the NJ Department of Environmental Protection (DEP) issued a final Title V operating permit to:

Facility Name: PASSAIC VALLEY SEWERAGE COMMISSION

Program Interest Number: 07349

Permit Activity Number: BOP210002

https://dep.nj.gov/wp-content/uploads/boss/public-notices/07349-bop210002-proposedpermit.pdf

Hearing Officer's Report And Response To Public Comment:

https://dep.nj.gov/wp-content/uploads/boss/public-notices/07349-bop210002-responsetocomments.pdf

As outlined below, the DEP permit has significant procedural and substantive flaws and is "not in compliance with applicable requirements" (40 C.F.R. § 70.8(d)).

Furthermore, EPA approval of this permit would establish national regulatory policy precedents under the Clean Air Act for several highly controversial issues, all of which conflict with President Trump's Executive Orders and federal court decisions that found are not authorized by the Clean Air Act and applicable EPA regulations.

EPA approval of the subject Title V permit also would raise complex issues of federalism and EPA's role in supervising delegated Clean Air Act authority. EPA can not approve a federal Title V permit that would authorize a State to expand the scope of the federal Clean Air Act.

These controversial national precedents include, but are not limited to, the following:

NJ DEP imposed State requirements for the permit applicant PVSC to conduct an “environmental justice” impact review procedure. Based on this EJ process, the NJ DEP mandated permit conditions to mitigate EJ impacts.

In contrast, while the NJ DEP imposed EJ requirements, the NJ DEP Hearing Officer's Report and response to public comments document clearly states that the NJ State Environmental Justice law and DEP EJ regulations do not apply to this permit application:

"PVSC’s permit application was deemed complete for Department review on July 23, 2021. The EJ Law at N.J.S.A. 13:1D-157, specifies that implementation of the law begins upon adoption of rules pursuant to the Administrative Procedures Act, N.J.S.A. 52:14B-1 et seq. The EJ Rule at N.J.A.C. 7:1C became effective on April 17, 2023, almost two full years after the Department determined that PVSC’s permit application was deemed complete. Therefore, the EJ rule does not apply to the PVSC permit." (@ p. 13)

If the NJ State EJ law and NJ DEP EJ regulations do not apply to this permit, then where did NJ DEP find the authority and regulatory basis to impose the EJ review process and permit conditions?

NJ DEP imposed these requirements based solely on an Administrative Order issued by the NJ DEP Commissioner. As the NJ DEP admits in the Hearing Officer's report and response to the petitioner's comments, the Administrative Order was issued retroactively (i.e. AFTER the permit application was submitted and deemed complete). The Order did not follow public notice and comment rulemaking required by NJ and federal Administrative Procedure Acts.

The DEP imposed State mandated permit conditions being challenged by petitioner require installation of renewable energy technology (solar and battery storage) in a federal permit based upon State imposed environmental justice permit review procedures and permit conditions.

As the petitioner commented on the draft permit:

"5. COMMENT: The NJ APCA does not authorize the Department to base permit conditions on EJ reviews or EJ issues, including location in a designated EJ community or the presence of disparate impacts. The regulations adopted by the Department to implement New Jersey’s APCA do not authorize the Department to consider and base permit conditions on EJ issues. The EJ conditions were state-only applicable requirements; thus, the basis for the conditions appears to be State law. However, the state-only conditions impact a Federal permit subject to EPA review and approval pursuant to the CAA. It appears Federal and State law are implicated. (Written: Bill Wolfe)"

The DEP's asserted legal basis for mandating these DEP procedural and substantive requirements was an "Administrative Order" issued by the DEP Commissioner. The DEP acknowledged this fatal flaw in response to my public comment: (@ page 14):

"3. COMMENT: The draft permit is fatally flawed. An Administrative Order (AO) of the Commissioner may not establish substantive binding regulatory requirements. An AO is only binding on Department employees in their administrative functions. Binding substantive regulatory requirements can only be imposed pursuant to rulemaking, as authorized by the legislature. (Written: Bill Wolfe)

RESPONSE: The APCA and CAA grant the Department the authority to issue a final Operating Permit pursuant to N.J.A.C. 7:27-22. Once issued, an “applicant, registrant, or permittee may request a contested case hearing pursuant to the Administrative Procedure Act, N.J.S.A. 52:14B-1 et seq., and the New Jersey Uniform Administrative Procedure Rules, N.J.A.C. 1:1 regarding a decision made by the Department.” N.J.A.C. 7:27-1-32. Thus, PVSC has the opportunity to request a hearing to contest any of the requirements in the final permit."

In mandating these permit review procedure and substantive permit conditions, the DEP violated administrative procedure and due process requirements protected under federal and State Administrative Procedure Acts (i.e. DEP retroactive State imposed regulatory mandates based upon a unilateral State agency Administrative Order by the DEP Commissioner, an Order that was issued AFTER submission of the permit application by PVSC and AFTER the DEP determined that the application was administratively and technically complete).

The NJ DEP imposed the permit conditions based on an “Administrative Order” issued by the NJ DEP Commissioner. The Order was the basis NJ DEP relied on to conduct an environmental justice review and impose additional procedural and substantive permits conditions which are beyond the scope of the Clean Air Act and the State Air Pollution Control Act.

The State and federal Title V permit regulations do NOT authorize the environmental justice review process or mandatory renewable energy permit conditions imposed by the NJ DEP.

In fact, the NJ DEP Administrative Order was issued because the permit application was exempt from the State environmental justice law and regulations because it was submitted prior to the effective date of the law and regulations.

The EPA can not allow States to impose burdensome Title V permit conditions and review procedures via retroactively issued State Administrative Orders that lack any regulatory basis.

Here is the permit review procedure conducted by NJ DEP for this permit:

1. Commissioner LaTourette issued an Administrative Order (AO) AFTER the permit application had been deemed complete.

2. The DEP then relied on the AO to mandate both additional procedural and substantive permit requirements, broader in scope and stringency than current federal EPA and State DEP permit regulations.

3. The procedural and substantive requirements have no regulatory basis or authorization.

Substantively, the NJ DEP permit conditions required installation of solar panels and battery storage.

These permit conditions fit the definition of “arbitrary and capricious” because the DEP did not even attempt to a regulatory basis and provide a nexus between the permit conditions and Clean Air Act standards or impact mitigation.

As I commented:

"7. COMMENT: Neither the New Jersey EJ Law nor the New Jersey APCA authorize the imposition of some of the "conditions" in the draft permit (e.g. solar and battery storage). Furthermore, there is no data or scientific rationale linking the emissions from the facility and the proposed conditions. The Department did not provide a scientific basis or data for a causal nexus between the conditions and a cognizable adverse impact. The Department cannot just pull permit conditions out of a hat. (Written: Bill Wolfe)"

I raised all these issues in public comment on the draft permit. DEP’s response ignored, misrepresented and/or distorted my comments and were not responsive.

Additionally, DEP State imposed permit conditions severely limit the operating time of a $200 million federally funded power plant. The restrictions are so severe as to effectively preclude the plant from operating to produce power. That would result in a $200 million waste of scarce federal and State funds.

The PVSC project is federally funded infrastructure. The infrastructure investment is based on a NJ DEP State "climate resilience" policy and technical analysis. The PVSC project is designed to provide back up power at a sewage treatment plant.

Approval of the NJ DEP permit would provide an EPA endorsement and approval of the State DEP's climate impact risk analysis and the DEP "resilience" policy to leverage Clean Air Act permit requirements to address State determined climate risks and implement renewable energy policies.

EPA approval of the DEP permit would provide an EPA imprimatur on this EPA delegated State Clean Air Act permit and a EPA endorsement of all these issues and DEP regulatory policies and permit review procedures and permit conditions regarding energy policy and climate adaptation and environmental justice.

Some argue that the EPA review of the objections raised by this petition is constrained by President Trump's Executive Orders on energy policy, climate mitigation and adaptation, DEI, and renewable energy.

Some argue that the EPA review also is constrained by a federal District Court decision in Louisiana that found that Congress did not authorize EPA to implement an environmental justice program under the Clean Air Act, see: U.S. District Court Judge Cain, Judgment pursuant to the ruling in State of Louisiana v. EPA, No. 2:23-cv-00692, W.D. La. Jan. 23, 2024, Aug. 22, 2024.

As I commented:

"COMMENT: A Federal court has recently struck down EPA's authority to consider disparate impacts and cumulative impacts in EPA permits, finding that Congress did not provide that authority (see: U.S. District Court Judge Cain, Judgment pursuant to the ruling in State of Louisiana v. EPA, No. 2:23-cv-00692, W.D. La. Jan. 23, 2024, Aug. 22, 2024). Additionally, there are other Title VI cases out of New Jersey that make it virtually impossible to litigate the issue of whether the issuance of a draft permit violates the Civil Rights Act. For example, the Third Circuit Court’s holding, in South Camden Citizens in Action v. New Jersey Department of Environmental Protection, 274 F.3d 771 (3d Cir. 2001)

https://www.gibbonslaw.com/resources/publications/third-circuit-closes-seconddoor-on-plaintiffs-in-south-camden-environmental-justice-case-05-02-2002 (Written: Bill Wolfe)"

Given the multiple controversial and precedent setting legal, policy, and infrastructure and climate resilience financial issues involved in EPA Region 2 review and approval of this DEP permit, EPA Region 2 should kill the permit outright or refer it to EPA Washington DC Headquarters for review pursuant to 40 CFR 70.8.

CONCLUSION

Pursuant to 42 U.S.C. § 7611d(b)(2) and 40 C.F.R. § 70.8(d), the EPA must object to the issuance of the Title V Permit for PVSC. As this Petition demonstrates, the Title V Permit fails to assure compliance with applicable requirements.

Accordingly, the petitioner requests the Administrator object to the Title V Permit sand require the DEP to revise and reissue the Permits in a manner that complies with the requirements of the Clean Air Act.

EPA must not approve of a blatantly illegal State permit review procedure under State and federal law and imposition of mandatory substantive permit conditions that lack any authorization under applicable State and federal laws and implementing regulations.

I urge EPA to object pursuant to:

"Any EPA objection under paragraph (c)(1) of this section shall include a statement of the Administrator's reasons for objection and a description of the terms and conditions that the permit must include to respond to the objections."

I look forward to your timely and favorable reply.

Respectfully submitted,

Bill Wolfe