More Efficient TVs in California?

The California Energy Commission is considering mandating that TVs sold in California use 50% less power beginning in 2013. According to the Commission, TVs use 10% of electric power in California, so 50% improvement in efficiency could mean significant savings.

I like the approach of letting states set some of their own standards. If it works, great, if it doesn't, we're not all tied to it, as we are when a federal rule is adopted. Admittedly, adopting a standard like this is likely to increase the cost of TVs in California, at least in the short run. And since California is such a huge market, it could result in higher costs for everyone, if TV manufacturers decide to make only one type of set that can be sold in California and elsewhere. Add to that the fact that the turnover in TVs will probably be slower than expected, delaying the date when the full energy savings will be available. But overall, this limited type of technology-forcing experiment is better done in the states than nationally.

Whence Clean Water Act Jurisdiction?

What sorts of water can the federal government regulate? Many people would be surprised to learn that there are limits to what water bodies the government can regulate. At one time it was limited to so-called navigable waters, meaning those that were navigable in fact. The Clean Water expanded that to "waters of the United States" (33 USC 1262(7)) which has been difficult for courts to define. At one time it included almost every body of water, on the theory that almost all surface water could somehow be involved in interstate commerce. There were some incredible stretches - for example, prairie potholes, which are not hydrologically connected to any interstate body of water, were nonetheless regulated under the CWA because they might be used as stopovers by ducks, which migrate between states, and might be shot by hunters, making it all interstate commerce.

In the last several years, the Supreme Court has started to introduce a little rational thought into what constitutes waters of the United States. Its most recent decision, the Rapanos case, involved a split decision that unfortunately only muddied the waters. Nevertheless, it is the latest statement by the Supreme Court, and must be considered by anyone interested in this area of the law. This issue - the extent of the reach of the federal government under the Clean Water Act, is one of the hottest issues in environmental law today. It's been the subject of cases, administrative interpretations by the Corps of Engineers and EPA, Congressional debate, and probably hundreds of law review articles and seminar presentations.

Resolution of CWA jurisdiction it is going to be crucial in WV, in mining and oil and gas contexts, among other things. I can't begin to do the issue justice here, but if you're interested in an understandable discussion of the Rapanos decision, try going to http://legalplanet.wordpress.com/2009/02/09/how-do-we-decide-what-is-a-water-of-the-united-states-rapanos-revisited/ It doesn't have everything on the topic, but it's a readable exegesis of the Rapanos mess.

Division of Air Quality to Hold Air Emissions Inventory Workshop

Anne Blankenship informs me that Bob Betterton at the Division of Air Quality announced the DAQ will hold the AEI workshop on May 11 from 10am to 3pm at the DEP headquarters in Charleston. The DAQ staff will explain how to complete the greenhouse gas reporting forms. They will be sending out registration information and an agenda soon. Thanks to all that provided your comments on the preliminary agenda - - those have been communicated to Mr. Betterton.

Tom Boggs of the Chamber of Commerce is working on arranging for a teleconference feed for those outside the Charleston area

Sometimes Trash Is Economic Development

About 20 years ago there was a battle in West Virginia over out-of-state trash. A large landfill was proposed for McDowell County, one of the poorest and least populated counties in WV. A large number of well-meaning people lobbied in favor of limits on landfill size, to prevent WV from becoming "the dumping ground of the East." I remember sending a letter to my bishop, the head of the WV Council of Churches, one of the anti-landfill interests, pointing out that the liners and other environmental protections that are mandated for today's landfills are expensive and require enough garbage disposal fees, called "tipping fees," to make them economically viable. I also pointed out that other states were taking our hazardous waste, since we didn't have a hazardous waste disposal site, a fact that didn't seem hypocritical to anyone. I never got a satisfactory response.

Garbage disposal is a potentially significant money maker for localities that are willing to offer disposal sites. A large percentage of the tipping fee consists of taxes that finance state and local programs. As this article from the Oregonian points out, waste disposal can be a source of revenue for counties that have land, and perhaps little else, to offer. Taxes and fees, as well as income for workers and suppliers, can be significant. A plant that is built to treat leachate from a landfill can be used to treat sewage from local communities. Methane generated by the garbage can be sold. And I have often suspected that the resources in large landfills will someday be valuable enough to go back and mine for things such as cellulosic material and metals.

Until everything can be recycled, there is a need for places to put our refuse. Providing a place for that disposal is not something we should reject out of hand.

Second Hand Smoke and Global Warming

Obligatory disclosure - I'm not a smoker, nor do I work for Big Tobacco. Smoking makes no sense to me, and I'm glad that people had the moxie in the 60's and 70's to start demanding no smoking areas, and eventually outlawed smoking on planes. But I'm enough of a libertarian to resent the prohibition, in WV at least, of all indoor smoking, even in bars and restaurants that want to allow smoking. We all have vices, and tobacco is still a legal vice. Why not let people go and smoke with other smokers, and those who want to join them?

The answer is that many of us want to improve other people's lives by eliminating their perceived character defects, rather than working on our own, so we join crusades against other's vices. But that sounds vaguely, well . . . judgmental . . . and it's really none of our business . . . so we come up with other reasons to accomplish the same end. And that "other reason" is a concern about second hand smoke. After all, what about the waitresses and others that have to put up with second hand smoke? (Never mind that no one has a right to any certain job, and everyone is free to leave to find more congenial employment.) We need to rescue people from the unintended effects of smoking by callous, uncaring others, so we prohibit smoking in public places to eliminate the scourge of second hand smoke.

I've always been a bit skeptical of the second hand smoke research, in the same way I've been skeptical of the global warming computer models. It's the absolute certainty of those who announce the study results, in a way that brooks no dissent, that makes me suspicious. I'm not enough of a scientist to pick apart anyone's research, but the explanation of natural climate cycles by global warming deniers always has made more sense for me than the IPCC reports, or the explanations by anyone else on the climate change bandwagon. So I suspect that second hand smoke research, which everyone "knows" to be true, might also be an example of the Emperor's new clothes. It set me to wondering, which led me to Googling, which led me to Dan Hitt's website. It's worth a look from anyone who wants a scientific analysis of major second hand smoke research, and what it really shows. At least it looks scientific to me.

Toxic Emissions Drop in West Virginia

OK, I admit it, I'm cleaning out my email inbox. But one piece of news I was remiss in reporting a month ago is the drop in the amount of toxic chemicals released to the environment in WV in 2007. Each year industry is required under to report to EPA the amount of certain substances that it emits to the air or water. For 2007, the total tonnage dropped. The following is a report by the Charleston Gazette's Ken Ward.



CHARLESTON , W.Va. -- Toxic pollution of West Virginia 's air and water decreased in 2007, according to the latest emissions data made public Thursday by the U.S. Environmental Protection Agency.
Air emissions in West Virginia dropped by nearly 23 percent, to 53 million pounds, according to the new data from the EPA's Toxics Release Inventory. Water discharges dropped by more than 12 percent, to 3 million pounds, according to the EPA data. The West Virginia pollution reductions were better than those reported nationwide in the EPA's annual publication of emissions information filed by thousands of chemical makers, steel mills, power plants and other industrial facilities.
Air pollution nationwide dropped by about 7 percent and water discharges about 4 percent, according to the EPA. Total toxic pollution nationwide dropped by 5 percent. The EPA published the annual toxic scorecard little more than a week after President Obama signed legislation that reversed a Bush administration rule that reduced the amount of information companies file under the TRI program.
"This information underscores the need for fundamental transparency and provides a powerful tool for protecting public health and the environment," said EPA administrator Lisa Jackson. "Serving the public's right to know is the crucial first step in reducing toxic chemicals in the places where we live, work and raise children. "I am also pleased," Jackson added, "that Congress ... took action to restore the rigorous reporting standards of this vital program."
The Bush changes were in effect for the 2007 emissions reports, but EPA officials said few companies took advantage of the ability to file less-detailed pollution disclosures. "The upshot is we don't see that this made that big a difference in the numbers," said Mike Flynn, acting deputy administrator for the EPA's Office of Environmental Information. Although the overall numbers showed pollution reductions, the EPA said industry reports showed increases in the release of persistent, bio-accumulative, and toxic chemicals like lead, dioxin, mercury and PCBs.
In West Virginia , electrical power plants - mostly coal-fired facilities - accounted for more than two-thirds of total toxic pollution, by far the largest polluting industry, according to EPA data, but, the sector cut toxic pollution by nearly 20 percent over 2006 figures, EPA said. Primary-metals production accounted for more than 13 percent, and chemical manufacturing about 9 percent, according to the EPA. Also, this year's EPA report continued the trend toward providing less easy-to-access information from the TRI data. For example, EPA state-level fact sheets - used by most media outlets to prepare stories - used to include a list of each state's top polluting facilities. Now, that information must be pulled out of an online database or calculated from complicated computer files.
The EPA started the pollution inventory and public reporting of toxic chemical emissions in 1987. The figures released publicly always lag two years behind because companies report annual releases the following July, and the EPA then compiles the data into various reports. The EPA kicked off the program in response to a congressional mandate following the 1984 chemical disaster at a Union Carbide plant in Bhopal , India , and a smaller leak the following year at Carbide's plant in Institute.
The EPA TRI information is available online at www.epa.gov/tri.

Incremental Improvements Save the World

We all love to talk about breakthrough technologies that are going to revolutionize energy use and save the economy at the same time. Well, techno wannabes like me do, anyway. Here, though, is a short blog on direct injection technology that Ford is using in some of its engines, and will be expanding in the future. It results in impressive, but not game-changing, mileage and performance improvements. It's the cumulative effect of these types of changes, not very sexy or jaw-dropping, that will likely get us closer to the goal of greater energy efficiency over the next 10 years than all the miracle processes put together.

WV Division of Air Quality to Hold Meeting on Air Rule Changes

Anne Blankenship of Robinson & McElwee's Energy and Environment Department has passed along a notice that a training session will be conducted by the West Virginia Department of Environmental Protection’s Division of Air Quality on expected changes to air permitting rules.

The 2009 West Virginia Legislature is expected to make changes to both the minor and major source air permitting rules – 45CSR13 and 45CSR14 – due to statutory changes made in 2008. The training will cover changes to both rules, as well as a new provision in 45CSR13 to allow existing permitted facilities to construct or make modifications in advance of permit issuance.

The training session will be held on Monday, May 4, 2009, at DEP Headquarters, 601 57th Street, SE, Charleston, West Virginia, and will run from 9:00 a.m. to noon. There is no charge to register, however, due to limited seating, participants must register by Wednesday, April 29, 2009.

To register, please email the information listed below to Jennifer Rice at Jennifer.L.Rice@wv.gov

Name:
Organization:
Address:
City, State and Zip:
Telephone number:
Fax number:
Email address:

EPA Decides to Regulate Greenhouse Gases - Yawn

Is it a big deal that EPA has decided to regulate greenhouse gases (GHGs)? Yes. Is it an unexpected, momentous decision that will have immediate ramifications for West Virginians? Not likely.

The endangerment finding, made under section 202(c) of the Clean Air Act, was a foregone conclusion after the Supreme Court's decision Massachusetts v. EPA, 549 U.S. 497 (2007), which ordered EPA to determine whether GHGs should be regulated as air pollutants under the Clean Air Act, and the election of President Obama. For better or worse, the fear of global warming is the central concern of environmentalists, and they have been seeking a way to force EPA to address it. The Supreme Court's decision, while directed to a reluctant Bush Administration, has now been implemented by an eager Obama Administration, which found itself in the position of being ordered to do the very thing it wanted most to do. Like ordering a teenager to decide whether homework and curfews are Bad Things and should be prohibited.

But having made the endangerment decision, the long hard road of actually deciding what to do about it sets in. There will be hearings, proposals with public comment periods, and lawsuits, and the whole thing will start over if, as expected, Congress changes the Clean Air Act to put new guidelines on how GHGs can be regulated. People will come out of the woodwork explaining that there are real costs that will arise from CO2 reductions, including higher costs for cars with lower emissions and higher mileage, and likely carbon taxes, as well as possible electrical power cost increases. These aren't necessarily bad things - they could lead to greater efficiencies in power production and usage, and a reduction in pollution. Those are good goals, and worth pursuing. What I object to are the suggestions that we can painlessly accomplish GHG reduction goals, much as conservatives for years blithely stated we could reduce welfare costs by simply eliminating "fraud and abuse." In both cases, it's shameless pandering to a political base that chooses to remain ignorant of the facts.

You can find a good report on EPA's decision to regulate carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons and sulfur hexafluoride as GHGs in the Wall Street Journal.

Here's the finding that EPA made. You can access it by clicking on the EPA link above.

The Administrator signed a proposal with two distinct findings regarding greenhouse gases under section 202(a) of the Clean Air Act:

The Administrator is proposing to find that the current and projected concentrations of the mix of six key greenhouse gases—carbon dioxide (CO2), methane (CH4), nitrous oxide (N2O), hydrofluorocarbons (HFCs), perfluorocarbons (PFCs), and sulfur hexafluoride (SF6)—in the atmosphere threaten the public health and welfare of current and future generations. This is referred to as the endangerment finding.

The Administrator is further proposing to find that the combined emissions of CO2, CH4, N2O, and HFCs from new motor vehicles and motor vehicle engines contribute to the atmospheric concentrations of these key greenhouse gases and hence to the threat of climate change. This is referred to as the cause or contribute finding.

Today’s proposed action, as well as any final action in the future, would not itself impose any requirements on industry or other entities.





By the way, this is different than the announcement by the Obama Administration that it will also decide whether to regulate CO2 as a pollutant under the Clean Water Act, on the ground that it is contributing to acidification of the oceans. Here's a short blog on that score

Industrial Accident Reporting Bill Passed by WV Legislature

Last year there was an explosion at the Bayer plant in Institute which resulted in the deaths of 2 workers. Due to the initial confusion surrounding the accident, emergency workers from outside the plant were not admitted to the plant as quickly as the Governor wanted. The result was his proposal to extend the mine accident reporting legislation to industrial accidents. There was some negotiation between industry and the Governor's Office over the terms of the bill, with negotiations continuing during the Legislative session that was just concluded. As one might imagine, this was somewhat contentious, as industry tried to avoid overbroad coverage of the reporting program, and sought reasonable response times and lower penalties. For example, at one time, penalties were a flat $100,000, regardless of how small the violation, and the reporting obligations were imposed on almost all industrial facilities. Fortunately, this is an example of the Legislature striking a balance between competing interests, as some of the more onerous provisions were removed or changed.

You can find the final version of the legislation, as passed, here. This is the Committee Substitute for Senate Bill 279, with the final changes noted in red by Tom Boggs, who was gracious enough to provide this to me. The emergency reporting requirements pertain to any facility that's required to submit a risk management plan under Section 112(r) of the Clean Air Act, or an industrial facility that has been given written notice that it is covered by the Act. An "emergency event" is an explosion, a fire that can't be contained in 15 minutes, the release of an extremely hazardous substance, loss of life or serious personal injury. Emergency events have to be reported within 15 minutes of the event being discovered to the Mine Industrial Accident Emergency Operations Center or other alternative contact specified in the Act. The facility then has to initiate prescribed event communications procedures and provide access to the plant to authorized government officials. Failure to comply can result in penalties up to $100,000. Money collected from facilities will be paid into the Hazardous waste Emergency Response Fund.

The new reporting requirements will be added to the mine accident reporting provisions in Chapter 15, Article 5B that were instituted after mine accidents at the Sago and Aracoma mines in 2006.

Pesticide Spraying Near Streams May Be a Violation Of the Clean Water Act

A couple years ago the Bush administration issued a regulation that clarified that the use of pesticides near streams, in a manner consistent with their approved application under FIFRA (Federal Insecticide, Fungicide and Rodenticide Act - what a name) did not require a NPDES permit. NPDES permits are ordinarily required for discharges of pollutants to waters of the United States from a point source, but the EPA clarified that the pesticide overspray was not a pollutant. The Sixth Circuit struck down that rule, opening the door to requiring farmers to obtain permits before applying pesticides to their crops, if the pesticides could end up in streams. The case, National Cotton Council of America v. US EPA , involved challenges to the rule from both the environmental community and industry. I have not done more than skimmed the decision, but it is a useful introduction to FIFRA and its interplay with the Clean Water Act.

If you're interested in learning more about FIFRA, you can go to the EPA website here. For a take on the decision by the American Farm Bureau, and a report on a potential conflict within the Obama administration between EPA and Agriculture, head over here.

Waxman Climate Change Bill Could Result In Significant Changes to US Economy

I keep hearing references to a bill being proposed by Henry Waxman, a very liberal and ambitious Dem. congressman from California, that would introduce any number of new regulations and requirements into our economy in the interest of forestalling the effects of climate change. I don't usually write about expected legislation - too much can change in a short time to get in an uproar over proposals - but Waxman is a force to be reckoned with, and I get the feeling that he is reflecting the pent up enthusiasm of the environmental community that feels it's their turn to implement policies they've been denied for the past 8 years.

The Wall Street Journal reported on a "discussion draft" of more than 600 pages that would substantially reorder the economy in a way designed to reduce the effects of climate change. It reports that "Right off, the bill mandates that 25% of U.S. electricity come from wind, solar, geothermal or biomass by 2025. Sorry, nuclear doesn't count. This kind of renewable portfolio standard directly contradicts the putative flexibility of cap and trade, which is supposed to allow businesses to reduce CO2 how and where it is least expensive. "

This blog suggests that the bill would expand citizen suits to



" permit anyone, absolutely anyone, to sue the government as victims of global warming and in anticipation of suffering as the result of global warming . . . Waxman-Markey have opened the door wide to a deluge of lawsuits that have no merit whatever in scientific fact or truth. As reported in The Washington Times, “The measure sets grounds for anyone ‘who has suffered, or reasonably expects to suffer, a harm attributable in whole or in part’ to government inaction to file a ‘citizen suit.’ The term ‘harm’ is broadly defined as ‘any effect of air pollution (including climate change) occurring or at risk of occurring.’”

Here is another blog from TPM that provides a little more detail about what he's proposing.

Greenhouse Gases - To Pay For Allocations Or Not?

The Obama Administration is going to impose CO2 limits on at least some industries, certainly power producers. This will probably mean that allocations to emit CO2 will either be auctioned off, with money going to the Treasury, or given away. In either event, the allocations will diminish over time, reducing the amount of CO2 that can lawfully be emitted in the atmosphere. Power suppliers will have to reduce CO2 emissions, presumably by choosing new power sources (wind, nuclear, solar, etc instead of coal) or by shutting down fossil-fuel burning plants. The alternative will be to buy CO2 allocations on the market, which will become increasingly expensive as the number of allocations is reduced.

As Dan Farber reports, the thought that the allocations might be handed out angers some environmentalists, many of whom have a visceral hatred of power companies in general and coal burning power plants in particular. But they should realize that auctioning the allowances is only going to be passed on to ratepayers, and is nothing more than a new (and incredibly large) tax. If the goal is to reduce CO2 emissions, the free allowances do the same work as auctioned allowances.

Reducing the demand for coal has a cost that West Virginians will pay locally. This editorial from the Charleston Daily Mail talks about the effect of suspending mountaintop mining permits, but the same reasoning applies to CO2 allocations that force us away from burning coal.

State Revolving Funds Available for WV Water and Wastewater Projects

It's not very sexy, and it seldom makes the headlines, but government loans and grants to improve wastewater treatment, drinking water supplies and water delivery systems are a mainstay of state environmental and health agency programs. I doubt the claims of huge numbers of jobs being created, but it is good to see WV getting revolving loan funds as part of the stimulus package. I'm not certain where the money is being spent in WV.

The following comes from EPA Waterheadlines, an email service which is available to anyone who wants to keep track of initiatives that EPA has in the water area.

1) First of Recovery Act Water Funds Awarded
In a move that stands to create thousands of jobs, boost local economies, improve aging water infrastructure and protect human health and the environment, the U.S. Environmental Protection Agency awarded the first of the Clean Water and Drinking Water State Revolving Fund grants under the American Reinvestment and Recovery Act of 2009. Clean Water State Revolving Fund grants have been made to the states of New York, West Virginia, Kentucky, North Carolina, and Nebraska. Drinking Water State Revolving Fund grants have been awarded to the states of Kansas and Nebraska.

This new infusion of money will help state and local governments finance many of the overdue improvements to water and wastewater projects including innovative green projects that save energy, water and further reduce the impact on the environment. The Clean Water State Revolving Fund program provides low-interest loans for water quality protection projects for wastewater treatment, non-point source pollution control, and watershed and estuary management. The Drinking Water State Revolving Fund program provides low-interest loans for drinking water systems to finance infrastructure improvements. The drinking water program also emphasizes providing funds to small and disadvantaged communities and to programs that encourage pollution prevention as a tool for ensuring safe drinking water.
An unprecedented $6 billion dollars will be awarded to fund water and wastewater infrastructure projects across the country under the Recovery Act in the form of low interest loans, principal forgiveness and grants. At least 20% of the funds provided under the Recovery Act are to be used for green infrastructure, water and energy efficiency improvements and other environmentally innovative projects. President Obama signed the American Recovery and Reinvestment Act of 2009 on February 17, 2009, and has directed that the Recovery Act be implemented with unprecedented transparency and accountability. To that end, the American people can see how every dollar is being invested at http://www.recovery.gov/.

Judge Goodwin Voids Mountaintop Permits; Corps Responds

I have not read the decision, but the Huntington Herald-Dispatch reports that Judge Goodwin struck down the use of Nationwide Permit 21 in WV, which allows small fills at mountaintop mining sites. This was closely followed by a request by the US Army Corps of Engineers for reconsideration or clarification of his order. This is a significant blow to mountainop mining in the state.

Generally, to place fill in waters of the United States (most streams, lakes, coastal waters) it is necessary to get a permit from the Corps of Engineers. In order to save itself the difficulty of doing full permit reviews for small projects, the Corps has established nationwide permits that can be done according to certain specified requirements, without going through the entire permitting process. Of course, there's more to it than that - there are conditions that apply to each permit, notice is required, there are significant conditions imposed by each state for compliance with water quality standards - but they are simpler than full permits, for which NEPA procedures are required.

Subsequent to the judge's order, the Corps asked for clarification. You can find the Corps' request on Ken Ward's blog, which also has hyperlinks to the Judge's decision and to other relevant information. Ken is very thorough in his postings, even if I do disagree with his slant on mining.

Copalbed Methane Decision Issued by WV Supreme Court

It is only relatively recently that coalbed methane has been extensively exploited in the United States. One of the first legal issues that arose was ownership. In states like West Virginia, land ownership is often divided into separate estates for the surface, oil and gas, and coal, with a different entity owning each interest. When that occurs, both the coal owners and oil and gas owners claim the coalbed methane (CBM). Some states have determined, through the Legislature or by judicial fiat, that the CBM is the property of either the coal or the oil and gas owners.

In WV the issue has not been resolved that neatly. The Court ruled in Energy Development Corp. v. Moss, 214 W.Va. 577, 591 S.E.2d 135 (2003) that it was the intention of the parties that was determinative of the methane ownership. Since the coal and oil and gas may have been severed many years ago, before coalbed methane was of economic interest, determining methane ownership may require going back to the original grantor of the mineral interests to see whether he or she meant to convey the CBM. If not, it may belong to neither the oil and gas owner nor the coal owner.

Which brings us to today's blog, about CBC Holdings LLC v. Dynatec Corporation USA, No. 34267 (2009), which was issued a couple weeks ago by the WV Supreme Court. The appellant had filed a declaratory judgment action seeking a determination that it owned CBM being produced by Dynatec, and the Circuit Court of Wetzel County had refused to hear the petition, on the grounds that the matter should be resolved by the Division of Oil and Gas. The Supreme Court sent the matter back to the Circuit Court, agreeing with appellants that the Division of Oil and Gas is a permitting agency and has no authority to resolve ownership issues. This is consistent with the CBM Review Board position, which it has consistently taken, that it will not decide issues of ownership.

The Supreme Court clearly (and correctly) feels that resolution of CBM ownership is the province of the Legislature, referring somewhat disparagingly to "the clear decision of the Legislature to circumvent the issue of coalbed methane ownership" rather than resolve it one way or the other. Until the Legislature does so, the Court is not inclined to step into the breach. "The Legislature was clear in its designation of the Division's regulatory responsibilities. Noticeably absent from those delineated powers is authority to interpret mineral rights and leasehold ownership issues. Because there are no provisions in the Act that contemplate relief for the issues set forth in Appellant's complaint, there is simply no procedural basis for referring this matter back to the Division."

In one sense, the Wetzel County Circuit Court can be forgiven its confusion on the issue, given the unnecessarily complex nature of the CBM statute, 22 W. Va. Code Article 21. The Legislature, unable to decide who owned the coalbed methane, established an elaborate system for giving notice to the owners of the coal and the oil and gas rights anytime a CBM well will be drilled. It also set up a system for "force pooling" CBM interests so that drilling could proceed even in the event there is disagreement over ownership of the CBM. The statute sets up a system for approving the unit, and escrowing the proceeds from the well if there is a disagreement over who owns the CBM being produced. However, as the Supreme Court ruled, that statute does not provide for a determination of who should receive the escrowed funds. That is left to a court of law, which must apply ordinary property law principles in resolving the dispute. That is what CDC wanted, and what the Court allowed.

Greenhouse Gas Reporting Requirements Revealed

Anne Blankenship of Robinson & McElwee reports the following about the DEP plans for its greenhouse gas reporting program:

As you may recall, late last year we were told by WV DAQ that reporting of GHG for the 2008 AEI reporting year would be voluntary. However, Rick Wilson of Acacia Environmental Group LLC reports that he has just learned through DAQ that GHG reporting will be mandatory for WV DAQ's current AEI reporting year (for CY2008 emissions). This guidance is not yet on DAQ's web site. Rick reports that the guidance that 2008 GHG emission reporting is mandatory will be contained within the DAQ's 2008 AEI Request Letter, which was mailed yesterday morning to all sources required to submit a 2008 AEI report (which are the Title V permitted sources in WV). All affected sources should receive their 2008 AEI Request Letter from DAQ no later than this Friday’s mail delivery.

The requirements for mandatory GHG reporting will follow DAQ's Rule 42 (45CSR42).



Tom Boggs of the WV Chamber also reports from RickWilson that


The calendar year 2008 AEI submittal deadline is 6/30/09.

DAQ will require an earlier AEI submittal deadline beginning with the 2009 calendar year inventories. The calendar year 2009 AEI submittal date in 2010 is not yet known.

Pursuant to the requirements of 45CSR42 “Greenhouse Gas Emissions Inventory Program,” the agency is now requiring that you provide emissions data for six categories of greenhouse gas (GHG) pollutants, as listed in Rule 42.

DAQ will provide extra assistance in estimating GHG emissions for those who request it, and
DAQ plans to hold a related workshop in Charleston during early May.

Sources are to transmit via e-mail their 2008 AEI electronic submissions to dep.aei@wv.gov.

DAQ’s point of contact for AEI continues to be David Porter (304/926-0499, Ext. 1699), whose new e-mail address is david.j.porter@wv.gov.

Rules Bill Ready for Passage in WV Legislature

Environmental rules developed by the DEP, like most administrative rules in WV, have to be approved by the Legislature before they become effective. They are generally bundled together and approved collectively. Here Tom Boggs of the WV Chamber of Commerce reports on their status as this session of the Legislature winds to a close. Check here if you're waiting for a rule to be approved for final promulgation, usually a couple months after the session ends.

The House Judiciary Committee passed this afternoon, SB 153, the bundle of environmental rules that includes:
45 CSR 16 Standards of performance for new stationary sources
33 CSR 20 Hazardous waste management systems
33 CSR 22 Assessment of civil administrative penalties
33 CSR 24 Hazardous waste management fee
38 CSR 2 Surface mining reclamation
45 CSR 1 Control and reduction of nitrogen oxides from nonelectric-generating units as a means of mitigating the transport of ozone precursors.
45 CSR 8 Ambient air quality standards
45 CSR 13 Permit for construction , modification, relocation and operation of stationary sources of air pollutants, notification requirements, administrative updates, temporary permits, general permits, permission to commence construction and procedures for evaluation.
45 CSR 14 Permits for construction and major modification of major stationary sources of air pollution for the prevention of significant deterioation.
45 CSR 25 Control of air pollution from hazardous waste treatment, storage and disposal facilities.
45 CSR 26 Nox budget trading program as a means of control and reduction of nitrogen oxides from electric-generating units.
45 CSR 34 Emission standards for hazardous air pollutants
45 CSR 37 Mercury budget trading program to reduce mercury emissions.
47 CSR 30 WV/NPDES rules for coal mining facilities
47 CSR 31 State water pollution control revolving fund
47 CSR 32 Environmental laboratories certification and standards of performance
47 CSR 34 Dam safety
47 CSR 56 Assessment of civil administrative penalties
60 CSR 3 Voluntary remediation and redevelopment
There were no amendments to any of the rules meaning that they will move forward as originally proposed by the agency to the Secretary of State's Office last summer and more importantly as they were approved by the Senate.
SB 153 will now be reported to the House floor for passage.

US Supreme Court Approves Use of Cost-Benefit Analysis

In a welcome decision from the US Supreme Court, Entergy Corp v. Riverkeeper Inc. (07-588), EPA's use of a cost-benefit analysis in deciding what controls are required on river water intakes has been approved by the high court. The intakes at question bring in large amounts of water at power plants and other facilities that use it for cooling. The older intakes can trap and kill billions of fish, mussels and other aquatic life. EPA drafted rules to reduce this "impingement," with new intakes (called Phase I) subject to very expensive controls for protection of aquatic life, such as closed circuit cooling. Older intakes (Phase II), which would be much more expensive to retrofit with the Phase I technology, were required to put less expensive controls in place. However, even these less expensive controls would still reduce mortality by 80 to 95%.

Riverkeeper sued EPA, alleging it had not complied with its duty under section 316(b) of the Clean Water Act, which requires that "the location, design, construction and capacity of cooling water intake structures reflect the best technology available for minimizing adverse environmental impact." Riverkeeper argued that "best technology" meant what it said - the best technology for intakes at all types of plants, and nothing less. The Second Circuit largely agreed, deciding that costs of the various intake modification options could be considered only 1)to the extent of determining whether those costs could be reasonably borne by the intake owner, and 2) when choosing between options, but only if all those technology options achieved the best result. The Second Circuit felt EPA couldn't decide what level of protection to achieve by weighing the cost of each intake technology option against the value of the protection it offered - it had to choose from only the best technologies, with the highest degree of protection.

The Supreme Court disagreed, and as the Syllabus reports: "The Second Circuit took 'best technology' to mean technology that achieves the greatest reduction in adverse environmental impacts at a reasonable cost to the industry, but it may also describe the technology that most efficiently produces a good, even if it produces a lesser quantity of that good than other available technologies." The Court found that there was no implicit requirement that the greatest possible reduction in impingement was required, and EPA had discretion on how to implement Congress' directive to employ the best technology. The Court noted that EPA sought only to avoid extreme disparities in costs and benefits, and did not look for the cheapest alternative.

Much of the Clean Water Act is intended to be technology-forcing, forcing industry toward adoption of the best practices available to reduce the pollution and protect the environment. What is often missed, however, is that the newest and best technology can be incorporated in the design of new plants for far less than the cost of retrofitting old plants to meet the same standards. Cost-benefit analysis of the type offered by EPA in this rule is eminently reasonable where it is designed to bring about a substantial reduction in aquatic life mortality without imposing huge costs on industry. Stated differently, there is a price that can be placed on the value of fish, in the sense that we will let some die that could have been saved by significant expenditures. Even Riverkeeper acknowledged that there is no statutory basis for spending billions to save one fish. The same is true of human life - we know that we could save thousands of lives every year by adopting a national speed limit of 30 miles per hour, but as a society we tacitly agree that the lives lost are an acceptable trade-off for the greater efficiency and time gained by driving faster. Life is full of trade-offs

Addendum - Here's an article by Michael C. Dorf with his take on the decision.