Constitution Drive Partners, the current owner, is proposing a residential development at the site. The original plan was to cut the trees, alter the landscape and build over 200 residential townhomes. In the face of community and Delaware Riverkeeper Network opposition the developer has reduced his planned proposal but is continuing to advance development plans for the site despite its toxic condition.  The most recent proposal being submitted in the Fall, 2020 was for ~ 92 residential homes — while this is a decrease from the original footprint it is still a major threat to the community and Little Valley Creek both in terms of cleanup and enduring environmental harms.

The neighboring and downstream communities, and Delaware Riverkeeper Network oppose development of the site. We are joining together in calling for full remediation of the site at the expense of the known responsible parties (including Johnson Matthey and Whitaker Corporation), and that the natural woods, wetlands and creek be protected, and the property be preserved as natural open space.

In June, 2023, the developer submitted an application to secure Final Approval from the East Whiteland Township Supervisors to develop the site with residential homes.  In response, the Delaware Riverkeeper Network and community opposition, submitted letters demanding the township deny the request and enforce the conditions it put in place when it wrongly granted preliminary approval to the developer in 2021. In addition to the failure of the project to have met the pre-conditions set by the township, the developer included misleading information in their application.  Not only did the Delaware Riverkeeper Network call out this misinforamtion, but so too did the Pennsylvania DEP.

• Delaware Riverkeeper Network to East Whiteland Supervisors, Deny Final Development Approval. 8.20.2023
• Delaware Riverkeeper Network to East Whiteland Township,Deny Final Development Approval, 8.15.2023
• Pennsylvania DEP to East Whiteland Supervisors Responding to Concerns About Developer Application 8.9.2023

On Tuesday, September 12, 2023, responding to a public demand for more information and an opportunity to ask questions and give comments on the plan, PADEP will host an in person public meeting to discuss the Site and the implementation of the remediation response action the state has selected.  The community is urging all who are interested to show up, listen and ask the hard questions that still are in need of answer.

• Location: General Wayne Elementary School – Auditorium, 20 Devon Road, Malvern, PA 19355
• Time: 6:30 pm -8:30 pm

There are many details for implementation of the remediation plan yet to be decided upon.  The proposed remediation plan continues to raise concerns for the Delaware Riverkeeper Network and the community regarding its effectiveness, including the failure to fully monitor and address critical issues such as known PFAS contamination.  The selection and advancement of remediation is far superior to the over 30 years of state neglect. 

• To learn more about the concerns associated with the proposed remediation plan, Delaware Riverkeeper Network’s comment expressing legal, scientific and environmental concerns regarding the remdiation proposal put forth by the PA DEP can be found here.
• Powerful comments were also submitted by the Valley Creek Trustee Council (a collaboration between the Pennsylvania Fish and Boat Commission and the National Park Service)

February 10, 2021  the East Whiteland Board of Supervisors grant preliminary approval of the proposal to build 92 homes on the highly contaminated Bishop Tube site without a remediation plan in place.  While the approval was a significant disappointment to the community, responding to public opposition, the Township Board of Supervisors includes numerous conditions that would have to be met before final approval or any development could be allowed.  In 2023, the community is now holding the supervisors accountable to honor these conditions prior to providing any final development approval.

October 21, 2021, Improved Public Engagement Opportunity Secured. Delaware Riverkeeper Network challenged the PADEP public comment process regarding its then proposed remedial response action as showing “callous disregard” for the community and urged a respectful process that supports full, fair and meaningful public comment & engagement. Read the Delaware Riverkeeper’s letter here.  Other members of the community joined in the call for DEP to overhaul the public comment process.  On October 26 Delaware Riverkeeper Network learned that significant changes were to be made with DEP agreeing to nearly an additional month for comment, 5 minutes for individuals to testify as opposed to 3, and a video to describe the remediation.    

September 29, 2020 —  DRN and the community submit comments and testify at multiple township meetings over the course of the Fall/Winter 2020-2021 to urge the Planning Commission and the Township Board of Supervisors to reject the developer’s plan given that there has been no substantive cleanup of the Site, the development proposal merely indicates the presence of contamination “to be remediated” by someone and at some undisclosed future time, the State has yet to approve a cleanup plan for the site leaving everyone in the dark as to what may or may not happen in terms of ongoing contamination, and as a result the health, safety, private property and public natural resources continue to be at risk.  You can review the Sept 29, 2020 comments DRN submitted on this matter to the Twp Planning commission here.

January 27, 2020 — The Delaware Riverkeeper Network submits new comments regarding the Remedial Investigation and Feasibility Study submitted to DEP. You can read the whole comment here.

September 27, 2019 — Delaware Riverkeeper Network submits new comments to the Township and PADEP.  The closing paragraph of the comment reads:

“Clearly, the Township cannot provide an approval for proposed development, and PADEP cannot provide an honest and supportable Feasibility Study Report review, based on this morass of inaccurate, inconsistent, undefined, undetermined, and wishful thinking assumptions and assertions.   It is time for the Township to reject the CDP development proposal and for PADEP to demand a defensible Feasibility analysis that is based on reality.”

 You can read the whole comment here.

• February 21, 2018, the Delaware Riverkeeper Network filed an appeal with the Environmental Hearing Board challenging the Pennsylvania Department of Environmental Protection’s (DEP) ratification of two amended Prospective Purchaser Agreements (PPA) (which are settlement agreements) entered into with a proposed developer of the former Bishop Tube site, a highly contaminated site located in East Whiteland, PA.  The organization challenged the agency for being a rubber stamp on the deal that were not publicly noticed until 7 to 10 years after they were signed by the state.  The challenge asserted that the state failed to acknowledge critical changing facts, including that the DEP had voided key elements of the agreement which it chose not to disclose to the public, and that the anticipated development shifted from commercial to residential, but this too was not acknowledged by the state. In April 2019, the Pennsylvania Environmental Hearing Board (EHB), in a rather scathing opinion, ruled that the Pennsylvania Department of Environmental Protection’s approval of amendments to the Prospective Purchaser Agreement that would allow development of the highly contaminated Bishop Tube site located in East Whiteland, PA is “arbitrary and capricious” and therefore the PPA agreements are void. Learn more here.  The developer has appealed the decision and so the case is ongoing.
• November 8, 2017, the Delaware Riverkeeper Network filed a legal challenge against the Pennyslvania DEP for its “manifest neglect and dilatory conduct, over a period of seventeen or more years to clean up or cause the cleanup of past and present hazardous releases at the Bishop Tube Hazardous Waste Site (“Site”), which have caused contamination to spread off-Site, and impacting the off-Site groundwater quality, and to impact the Little Valley Creek, an Exceptional Value stream. The main contaminants of concern are Trichloroethylene (“TCE”) and other chlorinated Volatile Organic Compounds (“VOCs”) and metals.    These contaminants were released at this Hazardous Site and may continue to be released due to the malfeasance of the DEP and potentially responsible parties.”  The case is ongoing.  
• The Delaware Riverkeeper Network submitted two Right to Know Requests to PADEP on February 23, 2017, and PADEP denied access to all responsive records, citing the internal predecisional deliberation exemption, the attorney-client privilege and the attorney work-product doctrine. On April 20, 2017, the organization appealed that decision.  On July 5, 2017 the Delaware Riverkeeper Network  received a favorable decision from Pennsylvania’s Office of Open Records (OOR), who found that the Pennsylvania Department of Environmental Protection (PADEP) improperly withheld public records regarding the Bishop Tube site in East Whiteland/Malvern, PA.

As background, the Wild and Scenic Delaware River is classified by DRBC as Special Protection Waters (SPW) due to exceptionally high water quality and outstanding natural resources with special regulations that protect those resources and maintain the River’s exceptional water quality.  The entire drainage area that flows to the nontidal Delaware River, which extends from Hancock NY to Trenton NJ, is designated as SPW, and is the longest stretch of anti-degradation waters in the nation. The Commission’s mandated protection of these resources makes it impossible to allow drilling and fracking in the nontidal river protected by DRBC’s Special Protection Waters designation. 

When the commission enacted the moratorium three main concerns were cited – the diminishment of surface and groundwater, the release of pollution, and the impacts of frack waste disposal.^[1]  In the intervening years, a substantial body of knowledge has developed containing significant evidence that shale gas development has myriad adverse effects on our air, water, and land, public health, property interests, and agriculture, effecting present and future generations.^[2]

In the a statistical analysis of the body of scientific literature by the Concerned Health Professionals of New York and Physicians for Social Responsibility, 685 peer reviewed papers were reviewed and the overwhelming majority of studies found evidence of or potential adverse impacts from gas drilling and/or fracking on water, air, and human health. In the most recent Fifth edition of the Compendium, the evidence of the indelible damage that is occurring as a result of shale gas development and fracking is examined in over 1,200 peer-reviewed research articles. ^[6]

Studies reveal significant evidence that shale gas development has an adverse effect on drinking water quality, public health, property interests, agriculture and on our air, water, and land.^[7]

The negative impacts of shale gas development are documented by PA Department of Environmental Protection’s accounting of 308 private water well contamination cases that were determined by the agency to have been caused by oil and gas operations through March 2018. ^[8]  The EPA’s newly released hydraulic fracturing study provides scientific evidence that hydraulic fracturing activities can impact drinking water resources and includes water impacts from shale gas in the Pennsylvania community of Dimock.^[9]

Fracking produces waste that contains many of the toxics that are injected and also deep geology pollutants that are disturbed and ejected to the surface, exposing the environment and those who live in it to the increased risk of disease and adverse health effects.  The radioactive isotopes that are brought to the surface can contain dangerous levels of radioactivity, requiring special monitoring and handling.  Measurements by New York Department of Environmental Conservation show radium in drill cuttings from gas wells over 200 times background concentrations.^[11]  Duke University scientists^[12] found Ra-226 concentrations in stream sediments at the point of discharge of a fracking wastewater facility were 200 times greater than upstream and background sediments and above radioactive waste disposal threshold regulations. 

After six years of exhaustive study, the State of New York prohibited fracking based on environmental and public health analysis. The NY Department of Health concluded that the overall weight of the evidence demonstrated the likelihood of the occurrence of adverse health outcomes and environmental impacts from fracking could not prevented, leading to the Governor’s decision to ban high volume high fracturing in the state. The State of Maryland permanently banned fracking after 2 years of study, based on the potential for adverse public health and environmental impacts.

The Commission has not conducted a comprehensive assessment of the cumulative and long-term impacts of shale gas development that illustrates that natural gas development could safely occur within the Delaware River Basin without degradation of the Watershed’s water resources and the essential values of Special Protection Waters. In fact, the evidence supports that shale gas cannot be extracted or developed safely with current technology.

A vitally important cumulative impact is the climate effects of shale development in the Watershed.  Natural gas is primarily methane, a greenhouse gas 86 times more efficient at trapping heat than carbon over a 20 year time frame^[13] and its effects persist for hundreds of years.^[14] The well documented vented and fugitive losses from natural gas systems contribute to atmospheric warming; current technology and practices have not controlled these releases. EPA once thought the releases of methane from the development of natural gas were negligible – we know better today as the data has developed.  EPA says 27% more methane is being leaked than previous estimates and many scientists say it’s much greater than that because of the way the gases are measured, especially when looking at the entire life cycle of fracked gas.

The emissions are so great that it is projected that their release from the build out of Marcellus shale will prevent the achievement of global warming goals in Pennsylvania, accelerating climate change.^[15] In fact, nationwide the greenhouse gas emissions from natural gas production, transport and use cancel out any benefit natural gas provides despite natural gas releasing less carbon than coal or oil when it is burned.  Climate change impacts on the basin’s water resources include changes in precipitation and runoff that increase flooding and drought, impairment of habitats and water quality (including salt water intrusion to Delaware Estuary water supplies) and sea level rise.^[16]

Regardless of the evidence that natural gas development is not and cannot be made safe and that degradation of the environment and public health from shale gas drilling and fracking cannot be avoided, it became evident by January of 2017 seems that DRBC staff was maybe moving ahead with drilling regulations and the lifting of the moratorium. An article in Pennsylvania Digest reported that Pennsylvania DEP staff is was working with DRBC staff to develop drilling and fracking regulations. ^[17] While DRBC has reported over the years that they continue to consider regulations and research the issue, there had not been public news accounts of this previously.

Organizations came together in 2017, based on mounting concerns, to develop and execute a campaign to completely ban fracking once and for all in the Delaware River Watershed. 183 organizations representing many hundreds of thousands of members and the four states whose waters flow to the Delaware River submitted a letter to the Delaware River Basin Commission voting members calling for a permanent ban on fracking in the Watershed on March 15, 2017. The groups insisted that the mountains of scientific evidence, the data about water contamination from fracking, and the fracking ban in New York State and Maryland provide more than enough reason for the Commissioners to enact a ban instead. Hundreds of people have demonstrated and made public comment about the dangers and destructive impacts of gas drilling and fracking and about the public’s health and the watershed’s precious resources that must be protected from these impacts at the DRBC’s public meetings since February 2017.

Each day from July 24 through 28, organizations presented petitions calling for a permanent ban on fracking in the Delaware River Watershed signed by over 65,000 people. At press conferences held for each Governor in Pennsylvania, New York, New Jersey and Delaware and the Army Corps of Engineers, the voting members of the DRBC were presented with the petitions. Click here to download the petition.

At the DRBC’s public meeting Sept. 13, the DRBC Commissioners abruptly introduced and approved a resolution that could lead to a ban on fracking but is problematic in many ways. First, it directs staff to publish regulations that seek comment on “…prohibitions related to the production of natural gas utilizing horizontal drilling and hydraulic fracturing within the Basin”, which is not necessarily an absolute ban on all aspects throughout the watershed, and does not cover drilling that does not use fracking. Secondly, the staff was directed to develop regulations that could allow the “…storage, treatment, disposal and/or discharge of wastewater within the Basin associated with horizontal drilling and hydraulic fracturing for the production of natural gas where permitted” and that could allow the “…inter-basin transfer of water and wastewater for purposes of natural gas development where permitted.” The public at the meeting strongly pushed for the DRBC not to vote on the resolution as drafted and to reconsider a complete and permanent ban on all aspects of drilling and fracking and all related activities throughout the Basin. PA, NY and DE voted yes for the resolution, NJ abstained and the federal government voted no. The draft regulations were issued Nov. 30, 2017. The approved resolution is here.

Read the letter the Delaware Riverkeeper Network sent to the three Governors that voted for the Sept 13, 2017 resolution regarding fracking to understand, in full, our concerns.

As a result, the public comment period was extended to march 30, 2018 and 3 more public hearing opportunities were provided – but they were still all in Pennsylvania and one was only on the telephone.

Throughout the public comment period, the Coalition to Ban Fracking in the Delaware River Watershed worked to ensure as much input from the public as possible, given the constraints of the difficult to navigate comment process and the time of year.  Delaware Riverkeeper Network produced and hosted several webinars on the draft regulations and shared information from experts and reports to help people prepare for the Public Hearings so they could confidently testify verbally and to write informed comments through the written comment process.  From the beginning of February through to the close of public comment on March 30, the Coalition to Ban Fracking in the Delaware River Watershed provided different suggested comments and background information on various aspects of the draft natural gas regulations and proposed frack ban through easy-to-use on-line platforms that submit your comments directly to DRBC – Watershed Wednesdays and 8 Weeks to a Ban (see Supporting information below). The goal was to encourage lots of public input to explain why a COMPLETE ban on fracking and its activities in the Delaware River Watershed is required.

National environmental organizations, anti-fracking groups, community organizations, and residents together submitted at least 40,000 comments to the Delaware River Basin Commission (DRBC) in support of a full ban on fracking and all drilling-related activities, including wastewater treatment and water withdrawals by March 30. Counting late submissions, over 60,000 comments were submitted. The Coalition also submitted a letter signed by 126 groups, representing millions of members of the organizations represented, making the same demand.

Unfortunately, DRBC issued a press release stating it received less than 9,000 comments. The discrepancy is due to the fact that the DRBC counted thousands of individual comments submitted by members of organizations as a single comment, severely diminishing the widespread support across the region, and the country, for a full ban and denigrating the value of those who took the time to comment. See the press release on this issue here.

Municipalities throughout the Delaware River watershed have been adopting resolutions In support of s COMPLETE frack ban over the last several months.  Many of those resolutions, now numbering about 20, were submitted to DRBC during the public comment period and some were submitted prior and after the formal comment period.  Townships, boroughs, cities and counties continue to consider resolutions and many are moving draft resolutions through their process with a goal of influencing the final decision of the DRBC Commissioners.

DRBC has announced that they expect to vote on the draft regulations and proposed ban by the end of 2018.  Organizations continue to attend DRBC meetings, submit information and relevant documents to DRBC regarding fracking and its activities and publicly address the pressing issues of frack wastewater pollution, water depletion by fracking, and the devastating impacts of drilling and fracking.

Representatives of organizations that comprise the DRBC Full Frack Ban Coalition Organizing Committee attend every DRBC public meeting to share information that is emerging regarding fracking’s impacts since the close of the public comment period on the draft gas regulations. These include studies such as an in-depth analysis of the EPA’s frack wastewater report and the expert report DRN commissioned here.. Another seminal report analyzed for the DRBC was “Keystone Secrets: Records Show Widespread Use of Secret Fracking Chemicals Is a Looming Risk for Delaware River Basin, Pennsylvania Communities”, by the Partnership for Policy Integrity (PFPI) that exposed the use of secret yet toxic chemicals in fracking by companies operating in Pennsylvania (see report here). A press conference and in-person testimony brought public and DRBC attention to this issue that is falling between the cracks in PA. Also presented and discussed have been the updated editions of The Compendium of Scientific, Medical, and Media Findings Demonstrating Risks and Harms of Fracking (“the Compendium”) of scientific articles about the health and environmental effects of fracking and its operations on the health of communities that is published by the Concerned Health Professionals of New York. Read the report here.

The coalition presented additional health studies to DRBC based on two reports commissioned by DRN on the effects of fracking on Pennsylvania’s economy and public health. The commissioned reports are entitled “Categorical Review of Health Reports on Unconventional Oil and Gas Development; Impacts in Pennsylvania”, authored by Fractracker Alliance (linked here) and “The Economic Costs of Fracking in Pennsylvania”, authored by ECONorthwest (linked here). Read the Talking Points based on these landmark reports here. See a news report on the public meeting here.

Organizations have also pointed out that recent decisions from the Trump Administration made it more urgent than ever that Governors Murphy (NJ), Cuomo (NY), Wolf (PA) and Carney (DE) act right away to pass a complete ban on fracking and all of its associated activities throughout the Delaware River Basin. The coalition reasoned that supporting action to curtail fracking based on the climate impacts of methane as a greenhouse gas was a pressing need. Citing United Nation’s climate experts who have been giving dire warnings about how we need to urgently act to move away from fossil fuel extraction and burning, including fracked gas, to avoid catastrophic climate change, (see the report here), and the U.S. National Climate Assessment Report warning that the impacts of climate change are already being felt in communities across the country and will worsen as more frequent and intense extreme weather and climate-related events occur, (see report here), the groups’ representatives called for action to stop greenhouse emissions from shale gas development by the enactment of a full fracking ban. The coalition stated that President Trump continues to deny that humans cause climate change. In addition to ignoring climate impacts, despite releasing an EPA report that showed the toxic dangers of fracking wastewater to our waterways, (see report here), the Trump Administration’s EPA may undo the prohibition on the acceptance of frack wastewater at the nation’s municipal sewage facilities and ease current water quality protections, paving the way for frack wastewater to be dumped in surface water, including the Delaware River Watershed (see details here). These actions by the current administration undermine the science behind the EPA’s frack wastewater report and work against stopping the pollution caused by this toxic waste and its mishandling and they allow runaway climate impacts from methane emissions to continue unabated.

In December 2018, 9 months after the DRBC closed the public comment period on the draft gas regulations, the coalition of groups calling for a complete ban on fracking, the import of frack wastewater for discharge and water withdrawals for fracking outside of the basin, pushed the issue of the need for the DRBC to vote for the full ban. Representatives of organizations and members of the public submitted 104,805 signed petitions to the Delaware River Basin Commission (DRBC) at their public Business Meeting. The petitions, collected by 15 organizations representing members in all four states that are part of the Delaware River Watershed, asks the Governors of New York, New Jersey, Pennsylvania and Delaware to vote for a complete and permanent ban on fracking and its activities. Copies of the petitions were hand delivered with a public rally or press conference to each of the Governors at their state capitols and to the Army Corps of Engineers. The petitions call for a ban on fracking throughout the Delaware River Basin, a ban on frack wastewater storage, processing and discharges in the Basin, and a ban on water exports from the Delaware River Watershed to fuel fracking elsewhere. Read the petition here.

In March of 2019, there was a remarkable turn of events that showed our advocacy was working. NJ Governor Phil Murphy announced at a public event that he would vote for a COMPLETE ban at the DRBC, banning fracking, frack waste, and the withdrawal of water from the river for fracking. He asked the other DRBC Governors to work with him for a full ban “to ensure that the Commission’s final rules provide a complete ban on all fracking activities”. Both PA Governor Tom Wolf and DE Governor John Carney stated that day that they would also vote for a full ban. See the letter sent by our Coalition Organizing Committee sent to the Commissioners here. The groups signing the letter: Catskill Mountainkeeper, Clean Water Action, Damascus Citizens for Sustainability, Delaware Riverkeeper Network, Delaware Sierra Club, Environment New Jersey, Food &Water Watch, Natural Resources Defense Council, and New Jersey Sierra Club. Unfortunately, NY Governor Andrew Cuomo was not at the event and has not spoken publicly about his commitment to a COMPLETE ban since the 2019 declaration.

Advancing the campaign for a full and permanent fracking ban throughout the Delaware River Watershed into 2020, the issue of the climate impacts has been more thoroughly explored with the DRBC through testimony during the public comment session that the Commissioners’ hold at each public Business Meeting. In March of 2020, organizations and the public presented the most up to date climate science regarding methane as a greenhouse gas and studies that have been done in the last two years on the effects of climate change in the Delaware River Basin and the states that flow to the river.  Read the Talking Points on climate here. Read the extensive Reference List presented to the Commissioners here. DRN also submitted comment on the DRBC’s Water Resources Plan 2020-2022 during the public hearing on the resolution for the adoption of the plan in February. Read the comment here. The Coalition also combined the issues of the need for a full fracking ban with opposition to the PennEast gas pipeline project that DRN has been fighting for several years by connecting the two issues of fracking and infrastructure for fracking in June 2020. See the Talking Points here.

Pennsylvania Attorney General Josh Shapiro convened and then in June 2020 published Pennsylvania’s 43^rd Statewide Investigating Grand Jury Report #1 on the unconventional oil and gas industry. The report documents the unprecedented damage to the environment and human health that the “fracking boom” brought to communities where fracking occurred throughout the last decade in the Commonwealth. The DRBC Full Frack Ban Organizing Committee made a video over the summer regarding the findings. The speakers at the video forum examine the Grand Jury Report and explain how its documentation confirms what the Coalition representatives and other members of the public have submitted to the DRBC in support of a full fracking ban. The issues in the video were verbally presented to the DRBC during the public comment session of the September public Business Meeting. The speakers were: Catskill Mountainkeeper, Wes Gillingham; Clean Water Action, Eric Benson; Damascus Citizens for Sustainability, Barbara Arrindell; Delaware Riverkeeper Network, Tracy Carluccio; Environment New Jersey, Doug O’Malley; Food & Water Action, Eric Weltman; New Jersey Sierra Club, Jeff Tittel, Director; Wilmington Delaware scientist, Coralie Pryde. See the video of the forum, which was submitted to each Governor here. Read the letter transmitting the forum video here.

In November 2020, the groups that collaboratively work as the Delaware River Frack Ban Action Coalition sent a letter to the Commissioners urging a vote for a full frack ban as soon as possible. We continue to communicate with the state administrations to encourage the governors to introduce a resolution adopting the complete fracking ban. 

The Delaware River Frack Ban Coalition Organizing Committee that is advocating for a complete ban on fracking in the Delaware River Watershed, including a ban on frack wastewater discharges and withdrawals of water for fracking, submitted a White Paper in January 2021 to the new Biden Administration stating why a full ban on fracking is required in the Delaware River Watershed. The Coalition is working for a policy to be enacted by the Administration that a full and permanent ban on fracking in the Watershed is essential to protect the river and the drinking water for 17 million people and for the full ban to be finally voted into the DRBC’s water management regulations. Read the White Paper here.

In January 2021, a Complaint was filed by State Senators Gene Yaw and Lisa Baker, the Pennsylvania Senate Republican Caucus and Damascus Township in Wayne County to overturn the current de facto moratorium on gas drilling, fracking, and related operations in the Delaware River Watershed. Read the press release from Delaware Riverkeeper Network regarding the Motion to intervene as a defendant that DRN filed in February 2021. DRN submitted the request with the court in opposition to the lawsuit filed by the Pennsylvania Senate Republican Caucus and in defense of the DRBC’s jurisdiction over gas drilling and fracking and its power to enact a moratorium.  The DRBC will be filing a response and the court will decide if and when the case will proceed. Read the press release from the Delaware River Frack Ban Coalition decrying the lawsuit and describing it as an attack by fracking shills carrying out a thinly veiled industry grab.

On February 17, 2021, DRBC sent out a public notice about a special business meeting for 10:30 am, Thursday, February 25 to decide on the proposed natural gas regulations – which includes the provision to permanently ban fracking throughout the Watershed in all 4 states. The last minute announcement for a special meeting gave just one week’s notice saying they “will consider final action on DRBC’s Proposed Amendments to the Administrative Manual and Special Regulations Regarding Hydraulic Fracturing Activities”. It was also announced there would be no public comment opportunity. See the announcement and link to how to join the meeting here: https://www.nj.gov/drbc/meetings/meeting_feb252021.html

Whether or not they are going to adopt a COMPLETE ban on fracking that also includes a ban on the import and discharge of wastewater produced by fracking and a ban on water withdrawals for fracking outside of the basin, is unknown but it is reasonable to expect a vote for a FULL ban due to the policy statements discussed above where NJ Governor Murphy called for a full ban on fracking and its operations and PA Governor Wolf and DE Governor Carney pledged support for that vote. And it is the only way to provide the protection needed and nothing else is tolerable. People will be joining the DRBC meeting virtually on Feb. 25 to witness the vote by the Governors and the federal representative from President Biden in a “virtual march” and presence.

Action was also taken in a second resolution towards the proposal of regulations covering the import of frack wastewater and the export of water for fracking. These regulations could lead to the adoption of a ban on the import of wastewater produced by fracking for its processing and discharge here and the export of water from the basin for use in fracking outside of the watershed. See that resolution here: https://www.nj.gov/drbc/library/documents/ResForMinutes022521_regs-transfers.pdf

The ban resolution prohibits the use of high volume hydraulic fracturing or “fracking” to extract gas wherever it is located within the basin (which includes parts of PA, NY, and NJ). The DRBC decision was based on fracking‘s water quality and water quantity impacts and was cheered as an essential first step in stopping the devastating impacts of fracking in the Watershed. The next step, captured in a second resolution, will commence a rulemaking process. Draft regulations are required to be issued by September 30, 2021, to cover the import of wastewater produced by fracking and the export Delaware River water outside of the basin for fracking, DRN and over 100,000 people who have expressed themselves to the DRBC over the last 3 years consider this next step as absolutely critical to truly protect the entire Watershed.

No public comment opportunity and a virtual meeting meant that the public was not able to show their support for the ban by demonstrating at the DRBC meeting, which has been done countless times over the last years, dating back to the institution of the de facto moratorium on drilling and fracking in the Watershed in 2010. Instead, over 400 people joined the meeting remotely, and more watched through YouTube, and expressed themselves through social media and emails to the Commissioners over the days since the meeting was announced eight days ago. A virtual Watershed Frack Ban Happy Hour was hosted by DRN Friday Feb. 26 at 6:00 pm to celebrate the ban, share milestone memories from the last decade and gather forces for the next essential steps to ban frack waste import and water export in the coming months.

On March 10, 2021, Delaware Riverkeeper Network filed a motion to dismiss the complaint filed by State Senator Yaw, Baker, PA GOP and Damascus Township, arguing that the federal court lacked jurisdiction because plaintiffs’ claims were mooted by the DRBC’s resolution banning fracking in the Basin, and that if the claims were not mooted, then plaintiffs lacked standing to sue.

On March 12, Pennsylvania Democratic Senators filed to intervene in the lawsuit brought by the PA Senate GOP Caucus to overturn the fracking ban in the Delaware River Watershed https://www.senatorstevesantarsiero.com/democratic-senators-intervene-in-fracking-lawsuit-against-drbc/. See the legal filings here, and here.

The site is under a cleanup order due to toxic contamination of groundwater from Dupont’s use of the property, shuttered about 20 years ago.  The site was used for manufacturing and processing of highly dangerous materials and some of the chemicals used are still in the environment at dangerous levels, under a continuing order by NJDEP to pump and treat. This includes nitrobenzene, a highly toxic carcinogenic chemical and aniline, which is involved with the processing of benzene to make nitrobenzene.  Toxic acids were also used in the nitrobenzene manufacturing process. Industrial diamond processing was also done and may have used chemical vapor deposition or other processes that are used to manufacture industrial and synthetic diamonds. 

Many permits have been applied for by Delaware River Partners for the development of the Gibbstown Logistics Center. The company is also applying for and, in one instance has already received, site plan approvals from Greenwich Township for portions of the property to be used for warehouses and related activities. A copy of DRN’s letter to Greenwich Township Planning and Zoning Boards is below.

A group of residents organized in opposition to the project and appealed the municipal minor site plan approval: Concerned Citizens for the Redevelopment of the Repauno Site (CCRRS)

Copies of the comments submitted on the original NGL proposal can be found below.

As can the multiple and ongoing letters regarding the newsly exposed LNG export proposal for the site.

Numerous files were obtained by DRN through the Open Public Records Act in New Jersey and reviewed by DRN staff and consultants over several months.  All records were also shared with colleague organizations and residents in New Jersey who are concerned about the development of the project. See the running list of permits and approvals from local, state, and federal agencies.

The exposure of the secret plan to export LNG from the Gibbstown Logistics Center resulted in a cascade of events and public outcry.

NJDEP had issued a Waterfront Development permit but had to rescind it on June 5 due to inadequate public notice. The draft permit also approved the Water Quality Certificate.  Open for a brief 15 days of comment, which closed June 20, organizations submitted comment against the permit, which did not acknowledge or assess the LNG plans for the project.  It is revealed in the application that New Jersey Department of Environmental Protection is the “lead agency” for the project, providing proof that the state knew about the LNG plans in 2017 but did not disclose that publicly. Delaware Riverkeeper Network’s comment to NJDEP is provided below.

The “Letter of Intent” submitted by Delaware River Partners seeking approval by the Coast Guard for the export of LNG is now out of date as it only references one berth and the application approved by DRBC as well as other currently proposed permits regarding the project is for two new berths at the expanded dock.  Also, the amounts of LNG (and natural gas liquids – known as “Liquefied Hazardous Gas”)  contained in the application are no longer accurate because the capacity of shipping would greatly increase at the terminal if the two new berths (to be contained at an additional dock – Dock 2) are approved by New Jersey under a state Waterfront Development Permit. The NJ draft permit states that 37 shipping events per year would export the LNG and LHG overseas for sale. The “Letter of Intent” is provided below.

DRN has submitted comments on the expansion of the Gibbstown Logistics Center for what they call “Dock 2”. The second dock is proposed to have two ship berths, tripling the number of berths available for docking by ships.  DRN has sent letters to the Army Corps of Engineers, the U.S. Coast Guard and all agencies that are considering permits, as discussed above. The letters are provided below.

President Trump issued an Executive Order in April, 2019 for the Pipeline and Hazardous Materials Safety Administration (PHMSA) to approve rail cars for LNG transport within 13 months. Two months later, PHMSA proposes a “Special Permit” for rail cars to carry LNG, with an environmental assessment that is open for public comment until July 8.  The application was filed by Energy Transfer Solutions, a subsidiary of New Fortress Energy. The proposal to rail LNG is being driven by New Fortress Energy’s plans to export LNG overseas from Gibbstown Logistics Center. A sign-on letter prepared by Physicians for Social Responsibility is calling for another 90 days for public comment. This is being shared widely.

The PHMSA Docket with the proposed Special Permit and EA for the LNG by rail is here: https://www.regulations.gov/document?D=PHMSA-2019-0100-0001

This rush to approval is not only reckless but also will launch a whole new highly dangerous means of transporting LNG over land to terminals that plan to export, where companies can get a lot more return for their buck, the public’s safety and the environment be damned. The new “market” means more pollution and destruction from increased fracking, more fracked gas processing plants like the LNG liquefaction plant New Fortress Energy wants to build in Wyalusing Twp., Bradford County, more greenhouse gas emissions and climate crises, more devastating health impacts from the shale gas frenzy and more communities exposed to the dangers of fire and explosion from derailments and accidents.

Also, an appropriations bill amendment was approved by U.S. House of Rep. on June 24 to block the Secretary of Transportation from approving the permit New Fortress wants for the LNG rail car approval. See https://www.freightwaves.com/news/us-house-votes-to-block-rail-tank-cars-of-lng

Request for DRBC  Hearing / Adjudicatory Hearing –The first approval given to GLC’s Dock 2 was the DRBC Docket approved in June 2019 (several more approvals are needed from other agencies).  DRN submitted a Request for Hearing asking that DRBC reconsider its approval based on the potential negative impacts of the export terminal on Delaware River resources.  The DRBC approved DRN’s Hearing Request unanimously, re-opening the docket decision and allowing DRN legal redress.

DRN’s attorneys participated in various legal proceedings in 2019-early 2020 that set the stage for the DRBC Hearing, defining the timeline, limits of issues to be covered by experts, engagement of a Hearing Officer and other issues.  In March, DRBC announced that an adjudicatory hearing would be held on April 15, 2020, as part of DRN’s legal challenge to the DRBC approval of the GLC’s Dock 2.  DRBC stated that the hearing would be open to the public on a first-come, first-served basis in terms of seating and that DRBC would re-open the public record for additional written comments, a stunning admission that the DRBC failed to provide a full or fair opportunity for public comment before approving the export facility.  However, soon after this announcement, the coronavirus pandemic altered plans for public gatherings of any size.  On April 15, DRBC announced that the hearing was rescheduled and would begin on May 11, 2020.  The hearing would also be virtual and conducted remotely.

The adjudicatory hearing, DRN’s day in court, began at 9:00 am, Monday, May 11 via the Zoom virtual platform and concluded on Wednesday, May 20.  DRN’s attorneys presented testimony from six experts from different fields to address how DRBC did not fulfill its legal obligations for a full and fair review of the proposed Dock 2 project and how this would result in substantial harm to the water resources of the Delaware River, including water quality, habitats, and protected species such as Atlantic and shortnose sturgeon.  Because the hearing was not publicly viewable as the proceedings occurred, DRN staff observed the proceedings and shared live updates on Twitter and daily recaps on Facebook.  Digital and audio recordings of the proceedings were posted at the end of each day or by the next day on DRBC’s website.  After follow-up submissions by the attorneys and reviews by experts, the Hearing Officer is now in the process of writing his report, which will make recommendations regarding the Dock 2 approval.

The recommendation that comes out of the adjudicatory hearing will be voted on by the DRBC Commissioners – the Governors of New Jersey, New York, Pennsylvania and Delaware and the Army Corps of Engineers – in the coming weeks or months. DRN attorneys have been advocating for the vote to occur prior to September 15, when the prohibition on construction in the river is lifted; from March 15 to Sept. 15, under the Army Corps of Engineers permit no disturbance or construction for Dock 2 can occur in the Delaware River to protect the federally endangered sturgeon. This protection was advocated for by DRN. 

Raising public awareness – Public forums and webinars have occurred over the last months to raise awareness about the LNG export proposal and its implications from cradle to grave – from fracked shale gas wells that ruin the entire region and gravely harm peoples’ health and the dangerous liquefaction facility under construction in Wyalusing PA on the banks of the beautiful Susquehanna River, through the 200-mile truck and/or train transportation route to Gibbstown, NJ and then the enormous tanker ships that would travel down the Delaware River and estuary, past and very close to Delaware and South Jersey bayshore communities, overseas to foreign terminals.  

The issues examined have included adverse environmental and water quality impacts, the unjust and substantial harm to public health and safety, particularly for minorities and low-income communities, the harm to special and irreplaceable habitats and species, and the massive release of greenhouse gas emissions to the atmosphere from the cradle to grave life cycle of fracking and its infrastructure and operations.  Natural gas is primarily methane, the most powerful of greenhouse gases in terms of heating the atmosphere on a 20-year time scale, the period of time when scientists insist we must be dramatically reducing these emissions in order to address the global climate crisis. 

The Public Forums – In February, DRN worked with Widener University College of Arts, Sciences, and the Delaware Law School to present a public forum at the Widener University main campus in Chester, PA, with presentations by Professor Scott Bramer, Rev. Dr. Horace Strand of Chester Environmental Partnership, and LNG Coalition groups from EMPOWER NJ, the end fossil-fuel projects coalition.  The proposed LNG export terminal is just across the River from Chester, an environmental justice community already heavily burdened with environmental pollution. DRN provided live streaming coverage of the forum, attended by a standing-room-only crowd. 

In April, DRN organized with colleague organizations to testify at a virtual hearing held by NJ Dept. of Environmental Protection for a draft Air Quality Permit for the Gibbstown Logistics Center.  In addition to Delaware Riverkeeper Network, verbal testimony was made by representatives of the major environmental organizations in New Jersey – NJ Sierra Club, Clean Water Action, Environment New Jersey, Food and Water Action – and Clean Air Council‘s Philadelphia attorney.  

In May, DRN was invited to represent the American campaign opposing New Fortress Energy’s LNG development plans on a webinar in Ireland with the theme of connecting struggles to succeed in the shared goal of stopping LNG export and import.  A continuing alliance has resulted from that collaboration. 

In June, the Pipeline and Hazardous Materials Safety Administration and Federal Railroad Administration made an announcement that they will be approving the proposal for any carrier to transport LNG by rail car anywhere in the United States. This rulemaking, championed by President Trump and his Executive Order last year for federal agencies to quickly get LNG on the nation’s railways for export markets overseas, is a reversal of the long-standing national ban on LNG transport by railcar, instituted because of the substantial safety issues of handling and transporting LNG.  Only the Special Permit for LNG by rail to Gibbstown NJ allowed rail tank cars to be used to move LNG until this final rulemaking and that transport has not yet begun. The new regulation (RIN:2137-AF40) will take effect after it is published in the Federal Register.  As of mid-July, the Notice has not been published in the Register and no Environment Assessment by PHMSA has been made public.

In June, DRN hosted a zoom forum “The Gibbstown Fracked Gas Export Terminal EXPOSED”, featuring Jeff Tittel of New Jersey Sierra Club, Doug O’Malley of Environment NJ and Jocelyn Sawyer of Food and Water Action, in addition to DRN.  DRN introduced the interactive map commissioned from Fractracker to show the four potential transportation routes for the LNG trucks or trains and whom they would affect should there be an accident, derailment, or LNG release. Static maps of the likely routes have also been published. Also in June, Tracy Carluccio of DRN was the featured guest with Diana Dakey of Protect Northern PA on a webinar hosted by the PA Better Path Coalition. to discuss New Fortress Energy’s proposed Wyalusing to Gibbstown LNG scheme, cradle to grave.

In July, DRN kicked off its Summer Series of zoom forums on the project, zeroing in on: the interactive map that DRN published of the transportation routes, showing population impacts to those who live along the potential paths; and the LNG Coalition’s municipal resolution campaign for local governments along the transportation route.  In August, the Summer Series will continue featuring the Ireland import terminal connection and the Puerto Rico resistance campaign to New Fortress Energy’s San Juan import terminal and additional webinars will examine other aspects of the complete supply chain of New Fortress Energy’s convoluted fracked gas development plans. 

Prior to the September vote, public advocacy campaigns included a petition campaign throughout all four watershed states, led by organizations engaged in the broad coalition fighting the project. In September, more than 50,000 petition signatures were submitted to the DRBC Commissioners opposing their approval of the LNG Export Terminal. DRN also organized a local government resolution campaign that was carried out by groups all along the LNG transportation route from Wyalusing, PA where New Fortress energy plans to build the fracked gas liquefaction plant to Gibbstown, approximately 200 miles through hundreds of communities, exposing up to a million people to the danger of LNG transportation by trucks and rail cars.

The adopted local government resolutions were submitted to the DRBC in advance of the September meeting, to advise the Commissioners of the grass roots and “grass tops” opposition. A campaign sharing a sign-on letter with elected officials in opposition to the transportation of LNG through the Philadelphia region was submitted from officials in Philadelphia and another opposition letter from 133 diverse organizations from all over the Delaware River Watershed, updated with new names. Also submitted was a sign-on letter from 50 health professionals, scientists, and safety experts, as well as a formal statement from Lehigh County Commissioner Robert Elbich; Lehigh County adopted a resolution opposing the LNG transportation through their communities based on safety and environmental justice objections. These campaigns continued after the September DRBC vote to amass and relay the public’s opposition to the project in a storm of controversy that built to the December meeting of the DRBC.

Before the December 9 DRBC meeting, ccommunity, organizational, and local government opposition multiplied. The campaigns included another 49,730 petition signatures, totalling over 100,000 petitions by December 4 when they were submitted to the DRBC Commissioners. DRN and coalition partners including EMPOWER NJ, organized and carried out a Week of Action from November 30 through December 4 that resulted in thousands of declarations of public opposition expressed through various platforms such as emails, letters, tweets, Instagram messages, phone calls and faxes to the Commissioners. For example, Tweets sent to the Governors: 2,818 using #DRBCNOLNG in a Dec. 1 Twitter Storm: https://bit.ly/33HczrS. These declarations were generated by many organizations working together to oppose the project, including: 215 People’s Alliance, 350 Philadelphia, Berks Gas Truth, Better Path Coalition, Breathe Project, Bucks Environmental Action, Catskill Mountainkeeper, Clean Air Council, Clean Water Action, Coalition to Ban Unsafe Oil Trains, Damascus Citizens for Sustainability, Delaware Riverkeeper Network, EMPOWER NJ, Environment New Jersey, Food and Water Action, Food and Water Watch – NY and NJ, FracTracker, Friends of Sparta Mountain Associated with NJ Forest Watch, Friends of the Earth, Mark Ruffalo for Move.On, Natural Resources Defense Council, New Jersey Sierra Club, New Jersey Student Sustainability Coalition, Northwest Philly Climate Action Network, Not Here Not Anywhere – Ireland,  PennEnvironment, Pennsylvanians Against Fracking, Philly Boricuas, Physicians for Social Responsibility, POWER, Protect Northern PA, Resistance Cafe, Safety Before LNG – Ireland, Sierra Club PA Chapter, Surfrider NJ, DE, and NY, and Waterspirit.

Sixteen local government resolutions were adopted in PA, NJ, and Delaware opposing the project and LNG’s dangerous and potentially catastrophic transport risks (by truck, rail, and ship), including Wilmington, Delaware, the most densely populated community in the state whose council members cited environmental justice objections. Resolutions in PA: Clarks Green Borough, Clarks Summit Borough, South Abington Township, Scranton City, Jessup Borough, Pittston Township, Lehigh County Board of Commissioners, Kutztown, Penndel Borough, Bucks County. Resolutions in NJ: Runnemede, Haddon Township, City of Burlington, Pennsauken Township. Resolutions in DE: Wilmington, Bellefonte. Additionally, two influential Delaware boards adopted resolutions: New Castle County Civic League and the League of Women Voters of Delaware.

27 elected officials from the Philadelphia region sent a letter to DRBC objecting to the perilous train transport through Philadelphia, disproportionately impacting black and brown and low-income neighborhoods: https://bit.ly/39HIfkp. The letter was sponsored by the community organization PhillyBoricuas whose members live in many of the neighborhoods along the railway tracks where the LNG rail tank cars would travel on route to Gibbstown. The community also is actively opposed because Puerto Rico is one of the destinations where New Fortress Energy is force-feeding the LNG from Gibbstown at an import terminal they own there; there is a groundswell of support for self-sustaining, independent and clean energy from renewable energy sources in Puerto Rico and people there are fighting New Fortress Energy’s import. Another letter from Philadelphia was submitted by Northwest Philly Climate Action Network, signed by an additional 31 local community groups in Philadelphia, demonstrating grass roots resistance: https://bit.ly/37C7n9O.

Going into the December 9 meeting of the DRBC, opposition to the export of LNG from the proposed Dock 2 at the Gibbstown terminal had quickly expanded as more communities learned of this reckless and dangerous project, its enormous footprint of potentially disastrous impacts on all four Delaware River watershed states, the runaway climate impacts of the additional greenhouse gas emissions that will exacerbate the climate crisis, and the catastrophic public health threats it thrusts on people, unjustly targeting black and brown people and low income communities where the trains and trucks would slice through.

In December, the DRBC voted to approve the terminal, despite the flood of public comments opposing the dangerous project. The representative from New York made a motion to further delay a decision while the issues of water quality and climate impacts from the project can be fully examined but it died for lack of a second. The final vote was unanimous except for New York abstaining. Outrage from the public was expressed during public comment at the meeting and afterwards, with a vow by organizations to continue to fight the project. Just before the vote on December 9 and afterwards, statements were made in the press by NJ Governor Phil Murphy that he voted for the dock at the terminal but did not support and would do what he could to prevent LNG from being exported from Dock 2. The EMPOWER NJ coalition, for which DRN serves on the steering committee, is following up with efforts to help Governor Murphy make his statements a reality.

DRN sued DRBC for their approval of Dock 2, the LNG export project, by filing a Complaint in federal court appealing this decision on January 25, 2021. See Complaint under “Supporting Documents” below.

Connections with partners such as Irish and Puerto Rican activists who are opposing New Fortress Energy’s import terminals that would receive the LNG from Gibbstown have led to even wider participation. In Ireland, Safety Before LNG and Not Here, Not Anywhere are sharing information about the proposed New Fortress Energy import terminal in Shannon and other proposed terminals there and we are participating and supporting each other’s’ efforts. In Puerto Rico, the Sierra Club Chapter and other local activists are opposing New Fortress Energy’s import terminal and their plans to expand and build another LNG export terminal on the southern coast of the island.

On September 18, New Fortress Energy subsidiary Bradford County Real Estate Partners (BCREP) filed a similar Petition with FERC to find the Wyalusing Township LNG plant project not subject to FERC jurisdiction. Many groups filed Motions to intervene and some groups, including Delaware Riverkeeper Network, submitted comments and a “Protest” opposing BCREP’s petition.

These FERC decisions are outstanding at this time and could have substantial impact on New Fortress Energy operations, including the future of the Gibbstown and Wyalusing LNG projects. See the FERC documents, Protests, and Comments submitted under “Supporting Documents” below.

Our advocacy campaigns, in coalition with many other groups in all 4 watershed states, have shifted to focus on other opportunities to affect permits, policies, and regulations that are relevant to the Gibbstown LNG project. A new petition with new “asks” is being developed and sign-on letters, a reworked municipal resolution campaign, and other on-the-ground efforts will continue to work alongside Delaware Riverkeeper Network’s legal challenges to the Gibbstown LNG Export Terminal.

The Delaware Riverkeeper Network as organizer of the “Philly Stop LNG by Rail Network” is launching a petition in 2021 urging President Biden to cancel the plans to transport LNG by rail through Philadelphia and to rescind the Trump–era rule that allows LNG transport in rail cars nationwide. You can view the coalition’s petition in English, and Spanish here.

After collecting signatures by hand and electronically, the Stop the Bomb Trains Philly Campaign gathered them together for delivery to USDOT Secretary Pete Buttigieg and President Joe Biden In November 2021. A community video featuring Philadelphia and Allentown PA communities (see link below) was included in the submission and resolutions adopted by nine New Jersey municipalities located along the LNG train route and nine NJ faith-based organizations were delivered with the petitions by NJ activists as well. At an in-person press conference on November 17, 2021, the package of petitions and resolutions were brought by residents, workers, and representatives of community organizations and neighborhoods to the Federal Transit Administration on Market Street where DOT has an office and symbolically submitted (they were actually delivered through the USPS to the federal agency offices). The 3,674 signed petitions to President Biden’s Administration were handed in, calling for cancellation of the Special Permit that would allow the transport of LNG to Gibbstown through Philadelphia and other communities and for the cancellation of the federal LNG by Rail approval by the Trump Administration. In response, U.S. Secretary of Transportation Pete Buttigieg sent a letter to DRN and partner groups, including Philly Boricuas, Make the Road PA, 350 Philadelphia, Berks Gas Truth, and Physicians for Social Responsibility PA, acknowledging receipt of the petitions and other materials and of the community’s concerns.

The PHMSA Special Permit for LNG rail transport from Wyalusing to Gibbstown hasn’t yet been used since it was issued in December 2019. The Gibbstown LNG export dock has not been built and the LNG processing plant in Wyalusing has not been constructed either, requiring a new air permit. Through a Freedom of Information Act request by Delaware Riverkeeper Network to PHMSA for files related to the Special Permit, it was discovered that Energy Transport Solutions (a subsidiary of New Fortress Energy, the owner of the Gibbstown/Wyalusing LNG export project) did not apply in a timely manner to PHMSA for the renewal of the Special Permit. The Special Permit was due to expire at the end of November, 2021. The applicant submitted a last minute application for renewal/extension of the Special Permit on November 29. Because it was not submitted earlier, PHMSA may use a higher review bar in considering the extension application. PHMSA confirmed the Special Permit did legally expire on November 30, 2021.

DRN worked with our partner organizations in the 4-state STOP LNG Coalition to mobilize public engagement in the comment process in the fall through to the close of comment in late December 2021 for the proposed suspension by PHMSA of the Trump-era LNG by Rail rulemaking. Hundreds of comments were submitted and DRN and other groups submitted extensive comments to PHMSA in support of the Suspension Rule (see DRN comment to PHMSA – page 3 under Supporting Documents – below).

To encourage PHMSA to finalize the proposed rulemaking to suspend the Trump Rule, our campaigns continued to raise the profile of the issue and organize public opposition to the LNG rail transport and the proposed LNG Export Terminal. In May 2022, DRN concluded a second petition campaign that focused on advocating that PHMSA adopt the proposed federal rule to rescind the Trump-era rule that lifted the ban on the transport of LNG by rail as well as cancelling the Special Permit and reinstating the national ban on LNG by rail. The Stop LNG by Rail Network petition was signed by 15,157 individuals and promoted by 14 diverse regional organizations working with DRN. The timing of the delivery was set around the federal government stating that a decision on LNG by rail is expected by June 30, 2022. However, no action was taken by PHMSA at that time and the adoption of the suspension and permanent revocation of the Trump Rule was further delayed. DRN will continue its legal challenge to the Trump Rule, represented by Earthjustice. The case was voluntarily put into abeyance by the consolidated petitioners (the petitioners are: Earthjustice representing 6 organizations, the Puyallup Tribe of Indians, and 14 Attorneys General from states opposing the Trump Rule) while PHMSA carried out the Suspension and Replacement Rule process.

DRN, our members, local residents, and groups including Food and Water Watch NJ and Protect Northern PA continue to work at the municipal level to achieve the adoption of resolutions by municipalities along the rail route in New Jersey and Pennsylvania. By late 2022, 15 NJ, 11 PA, and 2 Delaware municipalities adopted resolutions opposing the Gibbstown Terminal and LNG by Rail. (See maps of the locations of municipal resolutions that have been adopted below under Supporting Documents, page 1.) These resolutions are regularly submitted to PHMSA and the Biden Administration as they are adopted to keep the issue publicly before the agency – they speak to government decisionmakers for the communities and their elected officials that are in harm’s way and are a means of educating, engaging, and raising public awareness of the project in frontline communities. Letters submitted by the 4-state coalition opposing the Gibbstown Project and signed by elected officials have also been submitted to the Biden Administration to keep a high profile before PHMSA as they decide. On July 6, twenty three elected officials from the Greater Philadelphia Region, including Pennsylvania State Senators, Pennsylvania House Representatives, Philadelphia City Council members, and local municipal officials, submitted a letter to PHMSA and President Biden requesting the federal government overturn the rule that allows LNG by rail through the region. The letter is here: https://bit.ly/3ygiKBG.

DRN continues to legally challenge the Gibbstown Export Terminal through legal challenges to the major permits before the Army Corps of Engineers and the DRBC, and has filed an appeal of a NJDEP permit to develop a massive rail infrastructure project on the Gibbstown Logistics Center site to accommodate the long (up to 100-car) trains that are used to transport LNG and other natural gas liquids. DRN’s legal challenges have resulted in delay of construction of the project and due to a provision in the Army Corps permit, the dredging and dock construction cannot occur between March 15 and Sept. 15, providing some (but not enough!) protection for this federally endangered and vulnerable species. This federally-required “time-out” does unintentionally allow other strategic challenges to the project to take effect.

DRN also supports action by Pennsylvania groups in opposition to the PADEP Air Permit for the Wyalusing LNG processing plant. Under a negotiated settlement of the groups’ appeal, Bradford County Real Estate Partners, a subsidiary of New Fortress Energy, let the permit expire in 2022. The Wyalusing permit can be applied for again but its expiration is another setback for the Gibbstown project. See up to date information on all permits for the Gibbstown/Wyalusing Project below.

DRN watchdogs the Federal Energy Regulatory Commission (FERC) decisionmaking process regarding the New Fortress Energy requests that the Gibbstown and Wyalusing projects escape FERC’s jurisdiction. DRN attends FERC meetings virtually and submits new information to the dockets as appropriate. This FERC decision will define the future of the entire Gibbstown/Wyalusing LNG Export Project since a review by FERC would scrutinize the details of the LNG project and its operations, most likely requiring an Environmental Impact Statement, which no agency has required thus far. There is a critical need for a comprehensive environmental impact review and safety assessment of the proposed LNG project and all its parts.

Nationally and internationally, the war in Ukraine has exerted new pressure to increase domestic fracking, LNG processing and LNG exports overseas. President Biden entered into an agreement with the EU in March 2022 to increase LNG exports by 15 billion cubic meters (bcm) to Europe by the end of the calendar year. DRN and colleague organizations are publicly pushing back on the pro-gas rhetoric and policies being used by the gas and oil industry and their front people in elected positions and government by fact checking the hype, taking part in communicating with the public and media and with government and elected representatives. DRN is also promoting and supporting alternative energy solutions that free the US and Europe from the politicizing and weaponization of fossil fuels. DRN has connected and coordinated with Gulf Coast and other communities that are fighting to stop LNG export increases.

And DRN’s work against fracking in the Marcellus Shale region continues to prevent more environmental and human health damage where shale gas is extracted or plans to be extracted, including our long (more than 10 years) campaign to ban fracking within the Delaware River Watershed. A permanent ban on fracking within the watershed was won in February 2021 by rulemaking by the interstate agency Delaware River Basin Commission. However, a ban on imports of fracking waste and water withdrawals exports is not yet achieved. This is important to protect the Watershed from fracking waste pollution being imported into the Watershed and to prevent the export of water from the Watershed to fuel fracking and to prevent the resulting depletion and degradation of the Watershed’s precious water and stream flows. The Delaware is the lifeline for water supply to over 17 million people and it is the habitat of myriad communities of dependent species. It’s also important so as not to provide easy access to Marcellus and Utica shales proximate to the Delaware River where the Gibbstown LNG export terminal is proposed and other proposals are likely to spring up with local availability of gas and new infrastructure that would deliver it for export. Relatedly, it was exposed in 2022 that Penn America was planning behind closed doors for years in Pennsylvania to build an LNG processing facility and export terminal in Chester PA or other southeast PA location in PA’s Delaware River port region. See DRN’s Chester Penn America LNG.

The public movement that led to this success was broad and diverse. Many actions expressed opposition to the Special Permit. Municipalities rose up against the proposed rail and truck transport of LNG – a hazardous, flammable, and explosive cargo – through their neighborhoods and towns by passing resolutions in opposition and submitted their adopted municipal resolutions to the agencies and the Governors of their state. Over the years of struggle, more than 100,000 people signed petitions and hundreds of organizations and many elected officials signed letters opposing the LNG transport and calling for PHMSA to pull back their approval. Rallies, press conferences, and special events, all expressed the public outcry against the reckless approval of LNG transport that threatened catastrophe should there be a release of LNG such as in a derailment or accident. A coalition of organizations, including frontline residents from throughout the four watershed states in the Delaware River Watershed, worked to organize and carry out these campaigns to protect our communities and the environment.

The Notice was in the Federal Register and simply stated: SPECIAL PERMITS DATA—DENIED—20534–R, Energy Transport Solutions LLC. 172.101(i)(3) ….To renew authorization for the transportation in commerce of methane, refrigerated liquid in DOT specification 113C120W tank.

While this lack of transportation by Special Permit for LNG between the proposed key facilities – the LNG processing plant in PA and the export terminal in NJ – is a setback for New Fortress Energy’s project, New Fortress Energy can also theoretically still use rail tank cars to move LNG to Gibbstown. That’s because the Trump Rule that lifted the LNG by rail ban is still in place. Until the Biden Administration’s PHMSA suspends that rule, if NFE were to have the USDOT specification cars constructed, they could transport LNG in rail tank cars from anywhere through any of our communities, just like companies can throughout the entire nation. See Press Release from our LNG Coalition under Supporting Documents below.

Also in April 2023, the so-called “Philadelphia LNG Task Force” that the PA Legislature set up through the passage of a bill in 2022 that outgoing Governor Tom Wolf signed into law, emerged with the disclosure that a quietly arranged “public hearing” on April 20 at the Philadelphia Navy Yard (see a copy of the “Philadelphia LNG Export Task Force Act” and DRN’s letter to the Senate opposing the bill below under Supporting Documents web page 1). The Task Force’s statute set a goal of “turning the Philadelphia Delaware River Ports into an LNG Export HUB”. The Task Force is supposed to hold hearings and produce a report from their findings by the end of 2023. The Task Force had one meeting prior to April that was not publicly noticed in January 2022 where PA House Rep. Martina White (R) of the 170th Legislative District (Philadelphia) was elected chair.

Political leadership in Harrisburg changed in 2023 when a Democratic majority was sworn in. PA State Representative Joe Hohenstein, D-Phila., was appointed by the new Democratic Speaker of the House to the Task Force and his first act was to disclose publicly that this hearing was occurring and attempt to invite community representatives and independent experts to testify before the Task Force and to shine some sunlight on the Task Force process. Rep. Hohenstein reached an agreement with Chair White to invite speakers for the hearing. At the last minute, Rep. White revoked her commitment and all the community and expert speakers invited by Rep Hohenstein were barred from testifying. Rep. Hohenstein held a news conference outside of the Hearing “to shed light on the recent shutout of public comment and organizations focused on community and public safety for the Philadelphia LNG Natural Gas Export Task Force meeting”. See https://www.youtube.com/watch?v=sCEKp6zGDKg and https://www.pahouse.com/Hohenstein/InTheNews/NewsRelease/?id=128592 It also came to light that the Task Force was planning to force the siting of an LNG export facility in Chester PA instead of Philadelphia – the same place that Penn America was secretly planning their LNG project. The community recognized and condemned that this was environmental racism being supported by government institutions and industrial interests.

Four individuals who were set to testify were shut out of the Task Force meeting, Rep. Hohenstein’s release stated: Zulene Mayfield, chairperson of Chester Residents Concerned for Quality Living (CRCQL); Fred Millar, a national policy analyst recommended by the Delaware Riverkeeper Network; Tom Schuster, Director of the Sierra Club Pa. Chapter; and Fermin Morales, union electrician for IBEW local 98, community activist, and member of Philly Boricuas, a community group representing northern Philadelphia and Puerto Rican neighborhoods on community safety and LNG transportation issues. 

Those who attended the press conference were not only not allowed to testify but were actually barred from the Task Force meeting, turned away at the door. That included Zulene Mayfield and representatives and members of Delaware Riverkeeper Network – they were told the meeting room was “at capacity”. Here is the link of Zulene Mayfield being barred from entering the “public hearing”.

The next Task Force hearing was held May 19. The only community representative allowed was PA State Representative Carol Kazeem D-District 159, who stood up for those she represents in Chester in southeastern PA, condemning the plan to build an LNG facility. The next Task Force hearing is supposed to be held August 22, 2022 and be comprised of community representatives and independent experts that Rep. Hohenstein will invite.

DRN serves on the steering committee for EMPOWERNJ since its formation. EMPOWERNJ opposes all new fossil fuel development and supports clean, renewable energy that is affordable, sustainable, and accessible to all New Jerseyans.

This spring’s Week of Action (2023) highlighted the 7 major new fossil fuel projects the EMPOWERNJ Coalition are collectively opposing in New Jersey with a goal of sending a clear message to Governor Murphy: “Enough talk – we want real action: will the “greenest” Governor please stand up?” Five of these projects are proposed in overburdened and environmental justice communities. All of these projects are in clear opposition to Governor Murphy’s own executive orders to significantly reduce greenhouse gas emissions, as well as the Global Warming Response Act target of eliminating gas usage by 2050. Five of the projects violate the Governor’s recently enacted environmental justice law, which was just adopted last month. The actions ran from Wed. May 31 to Wed. June 7, and a rousing march and rally was carried out in Gloucester City to express the communities that are united against the Gibbstown LNG Export Terminal. The week ended with a virtual forum on false climate solutions such as hydrogen, carbon capture, and ‘renewable natural gas.’ 

• NJDEP Freshwater Wetlands Letter of Interpretation (issued July 11, 2016, pending revision)
• Individual Water Quality Certificate pursuant to the Clean Water Act Section 401, 33 U.S.C. § 1341, from the State of New Jersey;
• NJDEP Industrial Stormwater Discharge General Permit (NJPDES)
• NJDEP PERMIT NUMBER 0807-21-002.1 LUP21001 – series of land use permits (WDP, FHA, Coastal Wetlands, and WQ Certificate) for rail infrastructure. Issued Dec. 30, 2021, expires Dec. 29, 2026. Appealed by DRN, filed with Appellate Division 1.12.22.
• NJDEP Sewer Connection Permit
• NJPDES Construction Stormwater General Permit
• NJ Tidelands License
• Gloucester County SCD Approval: Gloucester County Soil Conservation District Case 1:20-cv-04824-NLH-JS Document 22-2 Filed 10/30/20
• Gloucester County Planning Board Approval
• Greenwich Township Planning and Zoning Board Approvals

Delaware River Basin Commission (“DRBC”) Project Approval, Docket No. D-2017-009-2, granted June 2019 and extension granted until June 12, 2025 pursuant to Section 401.41(a). DRN appealed original 2019 Docket, currently in federal court.

Army Corps of Engineers

• USACE Jurisdictional Determination (issued July 5, 2016)
• USACE Section 404/10 Individual Permit
• From DRN appeal of ACE 202 Section 10 and Section 404 Permit approvals for Dock 2 and LNG:
• On March 4, 2019, DRP submitted an application to the Corps for an “Individual Permit under Section 10 of the Rivers and Harbor Act and Section 404 of the Clean Water Act to construct a two-berth dock” at the Gibbstown Logistics Center, located on Block 8, Lots 2, 3, 4.01, 4.02, and portions of Lot 4 in Greenwich Township, Gloucester County, New Jersey. ACE000503–781. Appealed by DRN, currently in abeyance pending FERC jurisdictional determination.
• United States Department of Energy (“DOE”) Part 590 Approval (for Wyalusing)
• United States Coast Guard (“USCG”) Part 127 Letter of Recommendation. (Received for USCG Letter of Recommendation for Dock 1 but not for Dock 2)

Federal Energy Regulatory Commission

• DRP (Gibbstown) and BCREP (Wyalusing) Petitions for Declaratory Order: Bradford County Real Estate Partners Petition for Wyalusing Facility, Docket No. CP20-524-000, Sept. 18, 2020 and Delaware River Partners LLC Petition for Declaratory Order for Gibbstown Facility Docket No. CP20–522–000, Sept. 11, 2020 (not yet decided, several interveners, commenters, and Petitions submitted inc. DRN, PennFuture, FWW, EnvironmentNJ, Public Citizen).
• Sierra Club/Natural Resource Defense Council Petition for Declaratory Order Exercising Section 3 Jurisdiction over the Fortress Liquefied Natural Gas Export Project, Including the Wyalusing Gas Liquefaction Facility and Gibbstown LNG Export Facility, CP22-509-000; Comments submitted by DRN. (not yet decided)

Pipeline and Hazardous Materials Safety Administration

• Re. PHMSA Special Permit for the transport of LNG by Rail from Wyalusing to Gibbstown expired Nov. 30, 2021. Renewal request filed 11.29.21 by ETS (on New Fortress letterhead) is “under consideration” by PHMSA.

Still needed, not yet applied for:

From NJDEP:

• NJDEP Title V Air Permit
• NJ Toxics Catastrophe Prevention Act Agreement/Approval
• May be other NJDEP permits required for related on-land infrastructure

To keep up to date and get involved with events, actions, and information: tracy@delawareriverkeeper.org

Rail Infrastructure: Delaware River Partners DRN appealed the permits issued by NJ Department of Environmental Protection for a new rail loop and related infrastructure that would accommodate the long (up to 100 car) trains that are used for LNG transport to be built on the Gibbstown terminal site. In November 2023, New Jersey Superior Court, Appellate Division ruled in favor of NJDEP (see Superior Court Opinion under Supporting Documents). DRN filed a Petition on January 4, 2024 with the Supreme Court of New Jersey to hear our case (see Petition under Supporting Documents). The rail loop has not begun construction as of January 2024.

Underground Storage Caverns: Delaware River Partners plans to build more underground storage caverns at the Gibbstown site to store liquid gasses. There is already one underground storage cavern on the site, built decades ago by DuPont to store anhydrous ammonia for munitions manufacturing. That cavern was repurposed to store butane by DRP and has been in use for several years by the company. The butane can be transloaded from the cavern to a ship for marine transport from the current Dock 1 at the Gibbstown facility, also known as the Repauno Port and Rail Terminal. The terminal does not operate at full capacity for the natural gas liquids (NGLs) that are exported but it does some overseas marine shipping of the NGLs from the terminal.

NJDEP had no regulations governing underground storage caverns of gas liquids, despite there being 6 caverns for this purpose in use in New Jersey. NJ proposed NJDEP Cavern Rule N.J.A.C. 7:1F 1F http://www.nj.gov/dep/rules/proposals/proposal-20220516a.pdf in May 2022 and many public comments were submitted through July 15, 2022 criticizing the inadequacy of the rules to protect the environment and the public; one public hearing was held. See link to DRN webinar explaining the cavern rule. NJDEP adopted the rule in May 2023.

DRP proceeded to apply to NJDEP to build two new caverns for storage of liquid gasses. First, DRP applied for land use permits that would be needed for the caverns in 2023 before the adoption of the cavern rule. DRN submitted a series of letters and comments on the applications during the spring of 2023, explaining that the permits should not be considered until after the proposed cavern regulations had been adopted by NJDEP. DRN documented in the comments and letters that the application was inadequate and the proposed activities did not conform to environmental regulations. DRP then submitted an application to build the caverns using the proposed cavern rule as a guide, still prior to the adoption of the cavern rule. DRN again objected to any processing of this cavern application for the building of the caverns as untimely and for multiple environmental and public safety reasons. The application by DRP was and still is the first and only application to date under the new rules.

After NJDEP adopted the cavern rule in May 2023, DEP issued draft land use permits for public comment. DRN submitted comment on NJDEP’s draft land use permits, petitioning DEP not to grant DRP’s “Joint Application under the “Newly Adopted Underground Storage Caverns Rule N.J.A.C. 7:1F – Commercial/Industrial/Public (Landward) Flood Hazard Area Individual Permit Application No(s): 0807-16-0001.5 LUP220001” (See comment under Supporting Documents).

DRP’s applications submitted to NJDEP for the cavern construction under the new regulations was declared administratively complete in January 2024 and the next phase of review by NJDEP has commenced. DRN will be participating in the comment process. There is no public comment opportunity available during this next phase of NJDEP review.