A new report from environmental groups re-ignites a long-standing debate over the future of solid waste incinerators

Covanta incinerator Newark NJ
The Covanta plant in Newark has operated since 1990. They take in 2,800 tons of waste from 22 municipalities in Essex County as well as New York City. The garbage is burned and then converted into energy. The company says burning trash is a better alternative to dumping garbage in a landfill that produces methane. (Karen Yi | NJ Advance Media for NJ.com)

By Michael Sol Warren | NJ Advance Media for NJ.com

Scattered across New Jersey, four looming incinerators spend day and night torching our trash.

The facilities receive tons of waste from homes and businesses each day, burn it all, then recycle the metal that’s left behind and sell the electricity generated in the process to power thousands of homes.

It’s a model that incinerator companies have held up as a cleaner alternative to simply dumping trash in methane-belching landfills. But many Garden State residents living in their shadow, often in places plagued by dirty air, have long seen incinerators as a threat to their health. Organizations advocating for these communities have for years railed against the incinerators and pushed for their closures.

Now, a newly-released catalog of pollution and violations associated with those incinerators, plus information about subsidies provided to the facilities, has opened a new chapter in the controversy.

A new report published Wednesday by a coalition of environmental groups details the scope of collective pollution from New Jersey’s four active incinerators, plus one that was retired less than two years ago.

The report also highlights millions of dollars worth of subsidies paid to the incinerators by electric customers, and questions whether such payment was legal.

The findings are presented by Earthjustice, the Vermont Law School Environmental Advocacy Clinic, the New Jersey Environmental Justice Alliance and the Newark-based Ironbound Community Corporation. The information matches much of what the groups sent in a letter to the New Jersey Department of Environmental Protection and the New Jersey Board of Public Utilities last April. That letter was first reported by Politico.

The two companies that operate New Jersey’s incinerators, Morristown-based Covanta and New Hampshire-based Wheelabrator Technologies, blasted the new report as anti-industry misinformation and defended their environmental records to NJ Advance Media.

Major sources of dirty air

The report focuses on four incinerators currently operating in the state — three facilities run by Covanta in Newark, Camden and Rahway, and another run by Wheelabrator in Gloucester County — plus the former Covanta facility in Warren County that closed in 2019.

Those five incinerators, according to the report, consistently ranked among the largest sources of air pollution in New Jersey between 2015 and 2018, when compared to all 215 facilities with major air permits in in the state — places like factories and power plants.

That pollution is compounded by the incinerators’ proximity to other major industrial facilities, leaving nearby communities to breathe air dirtied by the cumulative effects. The Newark incinerator, for example, is on the edge of the city’s Ironbound neighborhood and near to factories, tank farms, a natural gas power plant and a sewage treatment facility.

“They’re not standalone facilities that are in the middle of nowhere,” Ana Baptista, a Newark-native and professor at The New School who focuses on environmental justice, told NJ Advance Media.

“Even when they’re within their permit limits, they’re part of the problem,” she added.

The legacy of heavy pollution in these places has left residents, who are largely people of color, with higher rates of respiratory problems and at higher risk of COVID-19.

James Regan, a Covanta spokesman, said the locations of the company’s incinerators were chosen years before the company took them over.

“These facilities were sited by local governments for their use,” Regan said. “Covanta operates them as best we can with minimal environmental impact.”

Regan stressed that pollution from incinerators is dwarfed by tailpipe pollution from cars, trucks, buses and other transportation sources in the communities. The transportation sector is the state’s largest source of air pollution, according to the DEP.

But environmentalists argue it is misleading to compare a single source of pollution to the collective total of thousands of other smaller sources. They also point out that transportation pollution is predictable, and theoretically easier to address. Pollution from incinerators, however, can fluctuate based on the type of trash is being burned at a given time.

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Fracking banned in 13,000 acres of the Delaware River Basin


By Kathryne Rubright, Pocono Record

Fracking has been banned on 13,539 square miles of land surrounding the Delaware River following a 4-0 vote Thursday by the Delaware River Basin Commission.

The ban is a long-sought win for environmental activists and a defeat to some landowners in the watershed who would have liked to profit from the natural gas below their properties.

Pennsylvania Department of Environmental Protection Secretary Patrick McDonnell, alternate for Gov. Tom Wolf, voted in favor of the new regulations, along with alternates for Gov. John Carney of Delaware, Gov. Phil Murphy of New Jersey and Gov. Andrew Cuomo of New York.

The federal representative, Brigadier Patrick McDonnell, commander and division engineer of the North Atlantic Division of the U.S. Army Corps of Engineers, abstained, citing the need for more time to coordinate with the new Biden administration.

Reading a statement from the governor, McDonnell said Wolf is “proud to join with other DRBC commissioners in preserving the water resources of this unique region for generations to come.”

The Delaware River Basin Commission voted Thursday, Feb. 25, 2021, to ban fracking in the watershed. Patrick McDonnell (center), secretary of the Pennsylvania Department of Environmental Protection, voted for the ban on Gov. Tom Wolf's behalf, along with alternates for the governors of New York, Delaware and New Jersey.

By a 5-0 vote, the DRBC also approved a resolution to start a rulemaking process regarding the exportation of water for fracking elsewhere, and the importation of fracking wastewater, issues activists including the Delaware River Frack Ban Coalition have pushed to see addressed.

The watershed includes all or part of 17 Pennsylvania counties, seven of which sit entirely or partly over the Marcellus Shale that can be fractured by millions of gallons of water to extract natural gas: Carbon, Monroe, Lackawanna, Luzerne, Pike, Schuylkill and Wayne.

Officially, the DRBC had not imposed a moratorium on fracking, but in practice, the ban is a continuation of the past decade. The commission voted in 2010 to put off considering well pad dockets until regulations were adopted, and no fracking applications have been submitted since, “a situation that has sometimes been referred to as a ‘de facto moratorium,’” the DRBC said in an FAQ on the new regulations.

The vote was in line with the governors’ previously stated positions. Wolf, Carney and Murphy had expressed support for fully banning fracking in the Delaware River basin, and New York has already banned fracking.

Environmental reaction

Environmental groups across the watershed, which includes parts of Pennsylvania, New York, New Jersey and Delaware, applauded the move while making clear they’d like to see more action on water and wastewater.

“This is a watershed moment for protecting one of America’s most iconic watersheds. Fracking shouldn’t be allowed anywhere, much less near an iconic natural waterway like the Delaware River, which provides drinking water for so many,” said David Masur, executive director of the environmental advocacy group PennEnvironment in a statement issued after the vote.

“The data is conclusive: From cradle to grave, fracking puts the health of our planet and our communities at risk. By banning this toxic practice in such a vital and beloved watershed, regional leaders are taking strong action to protect millions of people,” Masur said.

In addition to protecting drinking water, the move protects a river that is vital to tourism, Halle Van der Gaag, senior manager for Pennsylvania and Delaware Programs for the National Parks Conservation Association.

“The number of visitors at parks along the Delaware River, notably at Delaware Water Gap National Recreation Area, has skyrocketed as the pandemic stretches on. More people are getting outside at our parks, and they deserve safe access and clean water,” Van der Gaag said in a statement, going on to highlight the economic impact.

“This river is more than a tourist destination; it’s the economic lifeblood for many surrounding communities and local businesses. In 2019, Delaware Water Gap and the Upper Delaware Scenic & Recreational River welcomed more than 3 million visitors, whose spending in the area generated nearly $130 million in economic activity. It is imperative that we protect our parks, our resources, and the people who love and depend on them from the devastating environmental impacts of fracking.”

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PennFuture also commended the DRBC’s action on fracking, adding “the fight isn’t over yet.”

“Because the DRBC withdrew its proposed regulations regarding interbasin water transfers and fracking wastewater treatment within the basin, and instead plans to issue new regulations for public comment by September of this year, PennFuture will review those regulations and will explore all of our options to ensure that the Commission’s regulations are fully protective of water quality,” the advocacy group’s president and CEO, Jacquelyn Bonomo, said in a statement.

Other groups including the Delaware Riverkeeper Network, PennEnvironment and Catskill Mountainkeeper signaled their intent to keep working on water and wastewater issues.

Joseph Minott, Clean Air Council’s Executive Director and Chief Counsel said is goup was “ thrilled that the DRBC listened to the public and banned fracking in the Delaware River Watershed once and for all. We welcome DRBC’s next steps to complete its fracking ban by prohibiting water withdrawals needed for fracking as well as the disposal of toxic fracking wastewater in the watershed.” 

“Today’s ban on fracking in the Delaware River basin is a huge deal, and a testament to the persistence and dedication of grassroots activists in a battle that has lasted over a decade,” said Eric Benson, NJ Campaigns Director, Clean Water Action.

Jeff Tittel, director of the New Jersey Sierra Club, called Thursday’s move “the first step towards a full ban.”

“Today they took an important step forward, and we are glad that they have committed to a full ban,” he said. “We’ll be glad to work with them to do additional rules to ban the treatment and dumping of fracking wastewater in the Basin or taking water for fracking elsewhere. This will help protect public health and the River from more contamination.”

Business and industry reaction

David Callahan, president of Marcellus Shale Coalition, a natural gas industry group, called the ban a violation of property rights.

“The Commission’s blatant disregard for scientific evidence and bodies of independent research – including from the neighboring Susquehanna River Basin where continuous water quality and quantity monitors have shown no impact from shale development – further demonstrates the purely political nature of this action,” Callahan said.

He pointed to a 2015 report from the Susquehanna River Basin Commission that did not find correlations between well pad density and several water quality indicators.

The DRBC cited reports from the New York Department of Environmental Conservation, which found that “there are potential significant adverse environmental and public health impacts associated with high-volume hydraulic fracturing operations” and the U.S. Environmental protection agency, which while noting “data gaps and uncertainties” concluded that fracking “can impact drinking water resources under some circumstances.”

Gene Barr, president and CEO of the Pennsylvania Chamber of Business and Industry, called the outcome “a political decision uninformed by science.”

Tickner’s abstention was “extremely disappointing,” Barr said, “given the national energy security implications of reduced domestic energy development and President Biden’s stated commitment to reducing emissions and re-shoring manufacturing. With our economy reeling due to the pandemic and associated lockdown measures, and recent events highlighting how imperative energy production is, this is no time to let irresponsible voices carry the day and impede energy development.” 

The DRBC meeting can be viewed below, or on the commission’s YouTube channel.
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Federal district court keeps EPA’S Clean Power Plan on ice


By K&L Gates Attorneys David J. Raphael, Tad J. Macfarlan, Sandra E. Safro, Cliff L. Rothenstein, and Dean Brower.

On 22 February 2021, the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) brought clarity to the current and future status of the U.S. Environmental Protection Agency’s (EPA) 2015 Clean Power Plan (CPP) when it issued an order that will prevent the CPP from springing back to life.1 The D.C. Circuit’s order provides EPA a clean slate to work from in developing a new plan to reduce greenhouse gas (GHG) emissions from the electric generating sector.

As background, in 2015, EPA under the Obama administration promulgated the CPP.2 The CPP was an expansive rule that attempted to restructure the nation’s electric generation system. In 2019, the Trump administration repealed the CPP as part of the same rulemaking in which it established its own, more narrowly tailored replacement rule, the Affordable Clean Energy Rule (ACE Rule).

As further discussed in our prior alert, on 19 January 2021, the D.C. Circuit struck down the ACE Rule.3 Although the D.C. Circuit did not discuss the reinstatement of the CPP in its opinion, the court vacated the Trump administration’s rulemaking that repealed the CPP.4 Following that action by the D.C. Circuit, uncertainty and questions regarding the future vitality of the CPP rule and its regulatory obligations began to develop among stakeholders in, and regulators of, the energy industry.

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In order to assure that the CPP rule did not again take effect upon the D.C. Circuit’s issuance of the mandate with respect to its 19 January decision, EPA subsequently filed an unopposed motion to partially stay the issuance of the mandate solely with respect to the vacatur of the ACE Rule’s repeal of the CPP.5 In its motion to stay, EPA explained that its requested partial stay of the mandate would “promote regulatory certainty[,]” “avoid the possibility of administrative disruption,” and “remove any doubt about states’ and regulated entities’ obligations under the CPP” while EPA considered “afresh” on remand how to best regulate power plants’ GHG emissions.6 EPA’s duty to establish GHG emissions guidelines for existing coal-fired power plants flows from Section 7411 of the statute, which directs EPA and states to regulate categories of stationary sources that “cause[], or contribute[] significantly to, air pollution” that “may reasonably be anticipated to endanger public health or welfare.”7

On 22 February, in a brief order, the D.C. Circuit granted EPA’s motion, indicating that it would withhold issuance of the mandate with respect to the repeal of the CPP until EPA responds to the court’s remand in a new rulemaking action. By granting EPA’s motion to stay, the D.C. Circuit presents EPA with a clean slate (and an obligation) to establish emissions guidelines for existing coal-fired power plants under the Clean Air Act (assuming the D.C. Circuit’s 19 January decision is not appealed and overturned by the Supreme Court or the full D.C. Circuit sitting en banc). EPA will provide status reports on the progress of the administrative proceedings at 90-day intervals.8

EPA’s request for a partial stay provides a hint that EPA wants additional time—to conduct a comprehensive review of the structure and substance of the CPP rulemaking—before undertaking a new rulemaking action establishing new emissions guidelines for existing coal-fired power plants under the Clean Air Act. This partial stay provides a new window of opportunity to those impacted by how these GHG emissions are regulated to make their views known as EPA develops a new regulation.

Footnotes:
1Order, Am. Lung Ass’n v. EPA, No. 19-1140, 2021 U.S. App. LEXIS 1333 (D.C. Cir. Feb. 22, 2021).
280 Fed. Reg. 64,662 (Oct. 23, 2015).
3Am. Lung Ass’n, 2021 U.S. App. LEXIS 1333.
4Id. (“Because promulgation of the ACE Rule and its embedded repeal of the Clean Power Plan rested critically on a mistaken reading of the Clean Air Act, we vacate the ACE Rule and remand to the Agency.”)
5Respondents’ Motion for a Partial Stay of Issuance of the Mandate at 1, Am. Lung Ass’n, 2021 U.S. App. LEXIS 1333.
6Id. at 4.
742 U.S.C. § 7411(b)(1)(A); see id. § 7411(d), (f) (providing that the EPA administrator “shall” adopt performance standards for existing and new sources of air pollution).
8Respondents’ Motion for a Partial Stay of Issuance of the Mandate at 5, Am. Lung Ass’n, 2021 U.S. App. LEXIS 1333.

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‘Argentine Firecracker’ Fanne Fox dies at 84

Her splashdown in Washington, D.C.’s Tidal Basin around 2 a.m. on Oct. 7, 1974, would ripple into one of the capital’s most infamous sex scandals.

Rep. Wilbur D. Mills (D-Ark.), with Fanne Foxe, an exotic dancer also known as “The Tidal Basin Bombshell,” in 1974. (AP Photo)

Did you remember who she was when you read the headline? How about the name Wilbur Mills?

Well then,, kids. check out the full Washington Post story for a flashback to the not first–and certainly not last–Congressional sex scandal.

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Bill would help NJ farmers fight back against nuisance suits

Bring a frivolous lawsuit against your farm neighbor and it could cost you

The Assembly Agriculture Committee today released legislation, sponsored by Assemblyman Ron Dancer, allowing farmers to recover reasonable costs and attorney fees incurred while defending against a false complaint by neighbors.

Over the years, residential development has encroached more and more into traditionally rural areas in close proximity to farms, which has led to an increase in nuisance lawsuits over farming operations, including such conditions as noise and odors.

“The financial costs of defending against these claims can be very hard on farmers who are already facing tough times,” said Dancer (R-Ocean). “Even if the farmer ultimately wins in court, the litigation process can be very time consuming and very expensive.”

The established irrebuttable presumption is that commercial farming does not constitute a public or private nuisance under New Jersey’s Right to Farm Act, signed into law in 1983.

Dancer’s bill (A3619) would allow farmers to apply to a county or state agricultural board for their costs and attorney fees. If the board finds the complaint was made in bad faith, it would then issue an order for the plaintiff to pay them back.

Farmers are finding it increasingly difficult to survive, especially during the Covid-19 pandemic. The nation lost more than 100,000 farms between 2011 and 2018. More than half of all farmers have lost money every year since 2013.

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