EPA Approves Flexible Air Permitting

Anne Blankenship, my colleague at Robinson & McElwee, reports that EPA recently approved a final rule that will allow more flexible air permits for major sources of air pollutants. This would include permits for large facilities like chemical plants, steel mills, power plants, etc. which are referred to as Title V permits. They are a compilation of all the air emissions limits that apply at the facility, and all the ways that compliance with the limits will be monitored. Changes to those limits or the monitoring methods usually have to be done through a permit modification, which can take time and money. More importantly, the time required for permit modifications can prevent a business from quickly taking advantage of favorable market conditions to produce a new product. Flexible air permits allow businesses to anticipate future changes in operating conditions (perhaps switching from one chemical to another in a manufacturing process, or the installation of a new boiler or engine) without modifying a permit. The changes are, in effect, approved up front when the permit is issued.

West Virginia already allows some alternative operating scenarios to be established in Title V air permits, but this final rule promises to push that concept a little farther along. As you might expect, the restrictions on flexible air permits are pretty complex, particularly as they pertain to new source review. If you're interested in learning more, this fact sheet explaining the changes might be helpful.

Water Use Management Report Available

I'm a little late in providing this information, but at legislative interims (i.e., meetings of legislative committees while the Legislature is not in session) in November, Mike Stratton gave a report on the DEP's implementation of the Water Resources Protection and Management Act during 2008. For those of you not familiar with it, the WRPA, found at W. Va. Code Chapter 22, Article 26 , is West Virginia's attempt to exercise control over water resources in the state, and to make an accounting of most large water withdrawals (more than 750,000 gallons in a calendar month). One of the goals of the Act is to develop an inventory of the State's water resources, and to see where water is being removed and returned, diverted between watersheds, or disposed (as in an underground injection control well).

The Act is a natural result of the fact that Eastern states are beginning to experience something common in the West - an insufficiency of water, which makes determining water ownership and control a matter of increasing importance. Historically, West Virginia has been a riparian rights state - if you owned property beside a river, you had a right to use water in the river reasonably, without significant limitation other than the needs of other riparian users. While there are protections for riparian rights in the WRPA, the Act undercuts individual property rights in a way that has yet to be fully explored. As someone who participated in the negotiations over the Act, I can tell you that there was a strong desire among West Virginia legislators, particularly those in the Eastern Panhandle, to stake a claim on water so that downstream users in Virginia and Maryland could not do so. That does not bode well for real property owners.

DC Circuit Strikes Down MACT Start Up, Shut Down and Malfunction Exemption

Air pollution control equipment is generally meant to run at a steady level. When operating conditions fluctuate, due to start up, shutdown, or malfunction (SSM), the pollution control equipment may not operate optimally, and permit limits may be exceeded. EPA and the WV DEP have traditionally acknowledged that situation, and excused what would otherwise be permit violations during SSM events as long as the source was making an effort to reduce emissions as much as reasonably possible. However, a DC Circuit decision last month struck down the SSM exemption as it applies to hazardous air pollutants (HAPs), found in 40 CFR Part 63. The Court declared that the legislative history and the language of the Clean Air Act required it to reject any exceedance of limits set for HAPs. The SSM exemption for other types of pollutants was not affected. A more involved explanation of the decision can be found here.

HAPs are subject to stringent limits, based on the Maximum Achievable Control Technology (MACT). Limits on HAPs are often referred to as MACT limits.

West Virginia has adopted 40 CFR Part 63 by reference in 45 CSR 34, meaning that the federal rules for HAPs apply as if they were written in state regulations. This manner of adopting regulations helps to standardize state and federal regulations, and it relieves those of us who have to check for differences between state and federal regulations from having to compare the state and federal rules word for word, looking for differences. In adoption by reference, only the differences between the state and federal rules are noted, making it easy to see where the rules diverge.

When the federal rule changes, the state has to adopt the change before it can become effective in WV. That can pose some problems, because rule making is a lengthy process in WV, and sometimes federal rule changes become effective before the state can change its rule. When the change is done by a court, as occurred here, the problem is compounded. However, anyone with a MACT standard should be leery of relying on SSM as a justification for violating a HAP limit after the DC Court's decision.

EPA Administrator Outlines Priorities

This link is to a purported memo from Lisa Jackson, the new EPA Administrator, to EPA employees. It's pretty standard stuff to encourage the troops, and she identifies 5 vague and broad goals she hopes to achieve. For those who place stock in these sorts of public pronouncements, here you go.

Earth Justice Releases Coal Ash Report

WV Public Radio carried a report today about "Waste Deep," a study of coal ash that is disposed at mine sites, produced by Earth Justice. While I believe the statistics are a little misleading, and I think they overstate the potential danger, the report is documented and worth considering. In the interest of equal time, you might want to consider visiting the American Coal Ash Association and look at their FAQs to learn more about how coal ash is reused.

And since we're on the subject of coal ash, Ken Ward, the environmental reporter for the Charleston Gazette, reports that Randy Huffman, Secretary of the WV Department of Environmental Protection, has requested a review of all coal ash impoundments in West Virginia. You can see Ken's article here.

One Clean Up Policy in West Virginia

When land or groundwater is contaminated, and needs to be cleaned up, the perennial question asked by the remdiator responsible for the site is "how clean is clean?" Does the level of a contaminant have to be cleaned up to the natural background level? To a level that's safe for use as drinking water? To a higher level, based on the understanding that there is no groundwater, and the site will be paved over as a parking lot? Sometimes, the difference in acceptable residual contamination levels that will be left at the site depends on whether one is conducting a clean up of a release from an underground storage tank, or a groundwater remediation under RCRA.

The WV Department of Environmental Protection is working toward development of a "One Clean Up Program" that would coordinate and standardize the remediation requirements for many different environmental programs. It is trying to do this through a Memorandum of Agreement with EPA Region 3, but has run into some resistance. For those interested in the status of the State's One Clean Up Policy initiative, go to the Robinson & McElwee website and click on the link to the One Clean Up MOU . You will find a December 3, 2007 letter from former DEP Secretary Stephanie Timmermeyer to Donald Welsh, Region 3 Adminstrator, raising concerns about EPA's lack of support for West Virginia's attempt to coordinate remediation activities.

Caveat - Rob Lannan believes this letter is the most recent word on the OCUP, but he would be the person to talk to if you need to know anything up to date about the initiative.

Getting Rid of Household Hazardous Waste in West Virginia

Many people are surprised to learn that some of the things they throw away would be considered hazardous waste if they were discarded by industry. Even many of those things that are not hazardous waste, like most used oils and paints, should be kept out of landfills, because they could end up in groundwater (if liners leak) or in the leachate that is generated at landfills. Many items, like fluorescent lights, are being advocated by green organizations like the Sierra Club despite the fact that they contain mercury and are not to be disposed in landfills. That leaves a concerned citizen who wants to recycle or properly dispose of such wastes in a quandary.

Some municipalities have collection days when household hazardous waste and similar items can be brought to a central location for pick up and disposal. In West Virginia, those opportunities are few and far between. However, Carroll Cather of the WV DEP has provided me with some businesses and disposal operations that will take certain types of household hazardous waste. You can access those lists at the Robinson & McElwee website; I don't believe they are yet available on the DEP website.

To answer a FAQ, to my knowledge, Home Depot is still taking used compact fluorescents for recycling or disposal.

Thanks to Carrol Cather for providing the lists, and to Mary Aldridge for helping get them in a place where they could be accessed.

New Source Review Clarification Adopted by EPA

In 2006 EPA proposed clarifying its approach to determining when air emissions increases trigger New Source Review (NSR). New Source Review is one of the most contentious aspects of air pollution regulation, because it can result in installation of expensive new air pollution control equipment. When an air pollution source modifies its operations and increases air emissions above certain levels, NSR is triggered. Often this is not an issue - when a new boiler is added to a power plant, NSR review is likely to be implicated. But what happens when several minor changes occur at a plant - are they to be aggregated? Or what about "debottlenecking" that might occur as a result of process changes, increasing emissions even though no new air source is added? These are frequent occurrences at manufacturing sites, and it has been difficult for industry and state regulators to know exactly how they are evaluated for purposes of NSR.

EPA has recently finalized its guidance on these subjects, which my colleague Anne Blankenship advises me can be found at EPA's website. While the final action has not been published in the Federal Register, you can see the original proposal at 71 Federal Register 54325 (Sept 14, 2006) (not all this proposal was adopted) and you can review the reasons for supporting the EPA proposal from comments of the National Association of Manufacturers filed in 2006. For those interested, this article from Thomas Clarke gives a legal background on what NSR is. For more on NSR in West Virginia, contact Anne Blankenship at acb@ramlaw.com.

New Use for Carbon Dioxide?

One of the big problems with burning fossil fuel, but especially coal, is the amount of CO2 produced. Ecogeek is reporting a new artificial photosynthesis process that converts the CO2 to CO (carbon monoxide) and O2 (oxygen) using the power of the sun. Carbon monoxide is much more reactive than CO2 and can be used to produce fuels.

Miracle processes come and go, and usually end up with some significant problem like catalyst degradation, or the inability to scale up production to handle huge amounts of CO2. Nevertheless, I think it's instructive for this reason - rather than sequester CO2, we should be looking at options for reforming it and using it, particularly from power plants that produce large quantities of carbon dioxide at one location.

Equal Time on Coal Combustion Waste

I few days back I wrote about why coal combustion waste is not a hazardous waste, a designation that many different administrations and Congresses have refused to change. For another opinion on the subject, one that is particular to West Virginia, you can see this article by Cindy Rank. Cindy has a well-deserved reputation for being an effective and dedicated opponent of mining in WV, spending years attending hearings, filing comments, and otherwise participating in the regulatory process to change hearts and minds about industry practices. She is knowledgeable about the coal industry in WV, as this article shows.

I believe Cindy has overstated the dangers posed by CCW in WV, although I do not have room for a point-by-point rebuttal at this time. However, I would certainly differ with her on a crucial point - the perceived toxicity of coal combustion waste. I think the Environmental Council of States has taken the right approach - such waste does not pose the sort of danger that would merit designating it as a hazardous waste. This letter from ECOS explains why states believe regulation of CCW should remain with the states.

What's the Rest of the World Doing About Climate Change?

If you're interested in a discussion of the Kyoto Protocol as it is being implemented in Europe and elsewhere, and its ramifications for an American cap-and-trade program for greenhouse gases, you might want to check out Tauna Szymanski's article in the December 2008 Virginia Lawyer.

Techno-Green Websites Abound

Websites that trash the coal industry, and coal burning power plants, seldom detail how they intend to get to a place where reliable electrical energy is provided by something other than coal. Generally you see vague pronouncements about the need for more energy efficiency, but nothing that explains how you'd replace the one-half of US generating capacity that's provided by coal.

Greater energy efficiency is sorely needed, and the Bush administration can be fairly faulted for not emphasizing it. More reliable and better alternative generation sources are in short supply. Fortunately, there are people and companies out there scrambling to fill the need for more efficient products and generation options. And there are a number of websites that do a good job of reporting on the advances that are taking place. Take, for instance, Treehugger. You don't have to buy into the story about climate change bringing on the next world war to appreciate the stories about new products that are making their way to the market, and some flinty-eyed analysis as to why some are promising and others merely hype. Or Ecogeek, which promises 10 stories a day about how technology can help save the planet.

We can do better as a society, but it won't be by simply dismissing coal-generated power. It will involve lots of people making disparate contributions - including coal miners.

New Ohio Power Plant to Serve WV Municipalities

A group I had never heard of before, American Municpal Power - Ohio, is planning on building a large coal-fired power plant in Meigs County, Ohio, on the Ohio River, that will be serving West Virginians. The news release says "[t]he AMPGS project is an approximately 1,000 MW coal-fired generating plant, transmission line and associated facilities under development adjacent to the Ohio River in southern Meigs County. The facility will utilize the latest in proven, state-of-the-art emission control equipment, which will make the facility the cleanest in the region and one of the cleanest facilities of its type in the nation. AMPGS will supply power to 81 municipal electric systems in Ohio, Michigan, Virginia and West Virginia. "

Initial permits have been issued by Ohio EPA, and, although there have been appeals of the permits, construction is reportedly going to start in the near future. I haven't seen the initial permits, but it's hard to see how this power plant wouldn't be a focus for environmentalists and others across the nation who are trying to stop the development of coal projects by pointing out the effect on downwind compliance with ozone and particulate standards, the setting of air emission limits for greenhouse gases, like carbon dioxide, and MACT controls for mercury and other air toxics. If you're interested in the application of MACT application to power plants, you might want to look Southern Alliance for Clean Energy v. Duke Energy Carolinas LLC. As for carbon dioxide limits on power plants, the EPA Environmental Appeals Board has ruled on this, and federal courts are starting to do the same. Check out this summary or this explanation of how the EAB decision came about.

According to the news release, AMP-Ohio is the Columbus, Ohio-based nonprofit wholesale power supplier and services provider for 126 member municipal electric systems in Ohio, Pennsylvania, Michigan, Virginia, West Virginia and Kentucky. The organization provides a diverse mix in its wholesale generation resources, which in addition to fossil fuel, includes wind, hydroelectric, landfill gas and distributed generation. For more information abut AMP-Ohio visit www.amp-ohio.org.

CAIR Decision Does Not Change West Virginia's Plans

On July 11, 2008, the US Court of Appeals for the District of Columbia struck down portions of the Clean Air Interstate Rule (CAIR) for failure to comply with the requirements of the Clean Air Act. As CAIR was the regulatory mechanism that several states were relying on to meet ozone and particulate standards, by reducing ozone precursors and particulate from upwind states, EPA petitioned the court to allow the rule to stay in effect pending its revision. On December 23, 2008, the court granted EPA’s request and allowed the CAIR program to remain in effect while EPA revises the rule. The rule was therefore not vacated, but remanded to EPA for further action consistent with the Court's opinion. The court refrained from imposing a deadline as to when the rules must be revised. In addition to the matters that EPA was directed by the court to revise, the Obama administration will likely want to make other changes, so the shape of the new rule is impossible to predict.

My colleague Anne Blankenship reports that Jim Mason of the WV DEP Division of Air Quality says that the CAIR rules that went into effect January 1 will remain in effect. The NOx SIP Call rules (45 CSR 1 and 45 CSR 26) that were proposed for repeal prior to the Court's July 11, 2008 decision, will continue on their current track toward repeal by the Legislature this session. In other words, nothing has changed, and CAIR requirements will be applied in WV as written until EPA revises and reporopses CAIR, or some replacement rule.

If you're looking for information on West Virginia's compliance with Ozone and PM2.5, check the DEP website here.

Coal Ash Pond Release in Tennessee - Why It's Not a Hazardous Waste

Many people have seen the horrendous release of flyash and other coal combustion byproducts from a Tennessee Valley Authority ash pond in Tennessee. Newspaper stories and blogs have been written about it, including this one from the Chattanooga Times Free Press. Most of them focus on the supposedly hazardous nature of flyash (which I'm using as a generic term for all coal combustion byproducts). The stories and blogs suggest, or outright declare, that the flyash should be regulated as a hazardous waste, and that somehow the Bush Administration is responsible for blocking such a designation. The truth is a little more complicated.

At the risk of terribly oversimplifying, flyash is not regulated as a hazardous waste because Congress, in 1980, wanted to carefully study certain high volume, low toxicity wastes before subjecting them to expensive hazardous waste regulation. This is referred to as the Bevill Amendment. Those studies were done, and the authors concluded that flyash should not be regulated as a hazardous waste. If it were, it would be subject to extensive treatment requirements, including a general prohibition on placing it on the ground. It would eliminate the beneficial uses of flyash in concrete, as roadbase, and for other purposes. And it would increase the cost of electricity.

The Environmental Council of States recently passed a resolution that encouraged EPA to continue to regulate flyash as a non-hazardous waste. It briefly describes some of the history of the Bevill Amendment. For those who want to know a little more about the Bevill Amendment, you might try starting here at the EPA site.