California Environmental Laws Create Stalemate

An interesting situation has developed in California, where the state's environmental justice law has resulted in a judge suspending the state's cap-and-trade law because of the disproportionate effect it could have on low income people. As the New York Times reports:

Essentially, a major environmental initiative is under threat because the state failed to correctly carry out the appropriate environmental analysis.

Or, as Richard Frank, director of the California Environmental Law & Policy Center at University of California, Davis, put it, "one of California's two most important environmental laws has been stymied -- at least temporarily -- by the other."

The complete article from the Times can be found here.

West Virginia DEP Schedules Meeting On Water Quality Standards

The DEP has scheduled one of its regular quarterly meetings to discuss water quality standards.  It will be held


March 31, 2011 1 to 3 pm
WV DEP Headquarters - Coopers Rock Room
601 57th Street
Charleston, WV 25304 

 A copy of the agenda is here. It will include an overview of the changes made to the water quality standards during the 2011 Legislature and an overview of nutrient monitoring being conducted in the state

A Comparison of Nuclear Power and Solar Power In Germany

There aren't any nuclear reactors in West Virginia, and there aren't likely to be for the foreseeable future, given ample coal and natural gas reserves and  political opposition. As a practical matter, as presently configured and given current costs and regulatory restrictions, nukes can't compete economically here. Having said that, they would still be significantly more cost-effective than solar panels. 

The Breakthrough Institute has compared the  Fukushima reactors and the Germany's installed solar power generating capacity as to power produced and cost of installation to find out which is more cost-effective.  The BI post is a response to Christopher Mims' article in Grist that Germany's solar panels generate more power than Japan's Fukushima nuclear complex.  Mims' point is that nuclear power is an unnecessary risk, since solar power is already providing greater amounts of energy to the German grid.  Turns out it's not so. 

   In 2010, Germany's cumulative installed solar PV stood at 17.3 GW. In 2009, Germany's PV solar capacity factor--the ratio of actual energy output over the year and the energy the plant would have produced at full capacity--was 9.5%. This is quite low for solar PV, which typically has capacity factors around 15%, and is likely due to the fact that Germany doesn't actually get that much sun. If we assume the same 9.5% capacity factor for 2010, then Germany's 17.3 GW translates into about 14,397 GWh of actual annual electricity generation from solar cells.

By comparison, in 2010, Fukushima's six Daiichi reactors--which have a nameplate capacity of 4.5 GW--produced 29,221 GWh of power generation. That is, one nuclear power plant complex produces more than twice the power generation of Germany's entire installed solar industry.

All methods of creating energy have costs associated with them, which leads us to ask, along with Newsweek, is there any safe energy? Probably not, if you're looking to eliminate risk altogether, but then, completely eliminating risk in any endeavor is akin to trying to invent a perpetual motion machine. 

CO2 Not Harming the Earth's Biosphere

Studies come out all the time on both sides of the global warming debate.  The contradictory studies don't prove or disprove the global warming hypothesis, but they do, or should, put an end to the arrogant argument that "the science is settled" with regard to whether the world is facing dramatic, unimaginable warming in the coming decades.  Two new studies come down squarely on the skeptic side in suggesting the earth's biosphere is doing just fine, thanks.  

Skeptics acknowledge that carbon dioxide is a greenhouse gas, that mankind has increased the level of CO2 in the atmosphere, and increases in CO2 may have some warming effect. That part is not really in dispute.  The real issues are whether the warming due to anthropogenic CO2 is significant and increasing out of control, and whether the degree of warming seen to date has a negative effect on earth's ecosystems.  Even if there is a negative effect, do the benefits derived  from stopping small amounts of warming exceed the significant cost, in lives and lifestyle changes, incurred by reducing fossil fuel use to bring down CO2 levels?

Thanks to Watts Up With That for highlighting these studies.

Marcellus Shale Economic Development Act Passes

The Marcellus Shale, and the economic benefits/environmental concerns it presents, was front and center this year at the Legislature.  While legislation to increase drilling permit fees and impose additional restrictions on operations did not pass, a bill to encourage economic development of the resources associated with the shale did pass.  This report is from the West Virginia Manufacturers Association: 

 

MARCELLUS SHALE ECONOMIC DEVELOPMENT ACT:  For those of you who have been around the legislative process, it will not surprise you that this bill, SB 465, passed at seven minutes till midnight on the last day of session.  It seems that it is always like that with bills that are of interest to many diverse groups.  But this bill was a must for manufacturing, as it opens the door for the next generation of manufacturing in the state.  A quick synopsis of the bill follows:

·      The State Tax Commissioner is to annually compile a schedule of oil and natural gas drilling rig values and furnish this schedule to each assessor to be used as a guide to place assessed values on all oil and natural gas drilling rigs in their county.  

·      A credit for alternative fuel motor vehicles and qualified alternative fuel vehicle refueling infrastructure.  The credit is taken against the personal, business franchise and or corporate net income taxes.

·      A credit for the construction or purchase and installation of qualified alternative fuel vehicle refueling infrastructure.

·      The definition of “manufacturing” was amended to include the NAICS code of 211112, which is the code for a natural gas cracker.  A cracker is needed to obtain the derivatives from the Marcellus Shale that will provide the raw materials for new and expanded manufacturing opportunities.

·      The bill also changed the investment amounts for qualified capital investment made in the Chemical, Polymer or Steel Alliance Zones.  The amount of investment was reduced from $100 million in the ground and $50 million new investment to $20 million in the ground and $10 million in new investment when the facility uses product produced at a cracking facility.  The new investment will be valued at salvage value (5% of the qualified capital investment) for 10 years.  Land values do not qualify for salvage value treatment.

·      Amended the definition of “Qualified capital addition to a manufacturing facility to include: (1) facilities used to store, handle, process or produce raw materials for the manufacturing facility, (2) consists of a facility used to store, handle or process natural gas to produce fuel for the generation of steam or electricity for the manufacturing facility or (3) consists of a facility that generates steam or electricity for the manufacturing facility, including a facility that converts coal to a gas or liquid for the manufacturing facility’s use in hearing, manufacturing or generation of electricity.  

·      There are new reporting requirements to the Governor, and the President of the Senate and Speaker of the House regarding investments, jobs, etc., created as a result of this new program.

·      The Strategic Research and Development Tax Credit was expanded to include equipment or the design of manufacturing processes.

·      The definition of “manufacturing” in the Manufacturing Investment Tax Credit was amended to include a cracker and further provided that construction on the cracker must adhere to the WV Jobs Act.

·      There was also a provision on consumer sales and service tax for the Macy’s warehouse to be built in the eastern panhandle.

·      There is also an exemption on the purchase of services, machinery, supplies or materials, (except gasoline and special fuel) to be used or consumed in the construction, alteration, repair or improvement of a new or existing natural gas compressor station or gas transmission line of a certain size.

Fourth Circuit Declines To Find Insurance Coverage For Superfund Cleanup Expense

The Fourth Circuit recently ruled that Comprehensive General Liability (CGL) coverage was unavailable for the expenses incurred by the insured in remediating its own property.  In  Industrial Enterprises Inc. v. Penn America Insurance Company,  (Fourth Cir. No. 09-2346) the Court framed the issue in this way:

In this appeal, we decide whether a standard comprehensive general liability insurance policy ("CGL policy"), which indemnifies the insured for "all sums which the insured shall become legally obligated to pay as damages because of . . . property damage," covers the insured’s liability under the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA") for costs to remediate the presence of hazardous substances on the insured’s land.

The Court concluded: 

In sum, we hold that Penn America’s standard CGL policy, which provides indemnity to Industrial Enterprises for sums that it becomes legally obligated to pay as damages because of property damage, does not provide indemnity to Industrial Enterprises for regulatory liability (including remediation costs) under CERCLA. And because the standard CGL policy in this case does not provide coverage for CERCLA liability, Penn America had no duty to provide a defense or to pay the costs of a defense with respect to such liability.

Consol Energy Pays Fine, Will Install Treatment At Dunkard Creek

A couple years ago a release of mine water into Dunkard Creek, which meanders along the Pennsylvania/West Virginia state line, caused a huge die off of fish and aquatic life.  Consol Energy has agreed topay a large fine and will be installing expensive reverse osmosis treatment at the site, as EPA has announced in this press release:

            WASHINGTON -- The U.S. Department of Justice, U.S. Environmental Protection Agency and State of West Virginia announced today that Consol Energy Inc., the largest producer of coal from underground mines in the United States, has agreed to pay a $5.5 million civil penalty for Clean Water Act violations at six of its mines in West Virginia.  In addition to the penalty, Consol will spend an estimated $200 million in pollution controls that will reduce discharges of harmful mining wastewater into Appalachian streams and rivers. 

“In this settlement, Consol takes responsibility for its past failures to abide by the terms of its Clean Water Act permits,” said Ignacia S. Moreno, Assistant Attorney General for the Environment and Natural Resources Division of the Department of Justice.  “As a result of this enforcement action, Consol will install a state-of-the-art system to treat wastewater from multiple mines that will set the standard for the responsible management of discharges from underground mining operations in Appalachia.  This settlement will ensure protection of human health and the environment for the benefit of the people who live in Appalachia.”

            “We are committed to cleaning up the waters of Dunkard Creek and the Monongahela watershed and holding those who pollute it accountable,” said EPA Regional Administrator Shawn M. Garvin. “The centerpiece of this settlement – a new advanced wastewater treatment plant – will substantially reduce pollution by keeping nearly 100 million pounds of total dissolved solids, including chloride, from reaching these waterways each year.”

             “This agreement between the state, the federal government and industry will create a complex waste water treatment facility that will  significantly improve the water quality in the Monongahela watershed, and implement measures that will have positive effects on streams along the Ohio River, while allowing the mineral extraction industry to continue to have a positive economic impact in the region,” said Scott Mandirola, director of the Division of Water and Waste Management for the West Virginia Department of Environmental Protection.

             “Addressing the serious issues that affect our environment, by measures such as this one, will not only promote a healthier society and enhance our safety, but as recent studies are reporting, the expected investments in technology and alternative production methods may actually result in the creation of  jobs,” said U.S. Attorney William J. Ihlenfeld, II.  “It is my sincere hope that this settlement will send a strong message that the federal government is serious about protecting the health of its citizens and in ensuring that its laws are followed during the process of energy extraction.”

            Consol has agreed to build and operate an advanced wastewater treatment plant using reverse osmosis technology near Mannington, W.V., to remove high levels of chloride from mining wastewater.  When completed, the plant will be the largest such treatment plant in Appalachia and capable of treating 3,500 gallons of mine water per minute, substantially reducing chloride and other salts in mining waters discharged to streams.  This treatment will eliminate over 96 million pounds of total dissolved solids, including over 11 million pounds of chloride.  High levels of chloride and dissolved solids can harm aquatic life, clog irrigation devices and carry toxic chemicals that impact drinking water.  

            The U.S. complaint filed concurrently with the settlement agreement, alleges that six Consol mines violated pollution discharge limits in their Clean Water Act permits hundreds of times over the last four years.  The complaint alleges chronic exceedances of chloride discharge limits at the Blacksville No. 2, Loveridge, Robinson Run and Four States mines in the Monongahela watershed and the Shoemaker and Windsor mines discharging into tributaries of the Ohio River. 

            The complaint also alleges that discharges of high amounts of chloride and total dissolved solids from Consol’s facilities at Blacksville No. 2 and Loveridge, contributed to severe impairment of aquatic life and conditions favorable for golden algae to thrive in Dunkard Creek.  In September of 2009, a species of golden algae bloomed in Dunkard Creek killing thousands of fish, mussels and amphibians.  

            The consent decree, lodged in the U.S. District Court for the Northern District of West Virginia, is subject to a 30-day public comment period and approval by the federal court.  A copy of the consent decree is available on the Department of Justice and State of West Virginia Web site at: http://www.usdoj.gov/enrd/Consent_Decrees.html and http://www.dep.wv.gov/pio/Pages/Settlements,Ordersouttopublicnotice.aspx.

Earth Hour Rebuttal

During Earth Hour (March 26th, 8:30 p.m.) people around the globe are invited to turn off their electric lights  for one hour as "a worldwide collective display of commitment to protect the one thing that unites us all - the planet", according to the WorldWide Wildlife Fund.  Ross McKittrick explains why the lights will remain on at our house.   Here's some of what he has to say, which is reprinted at Watts Up With That:

I abhor Earth Hour. Abundant, cheap electricity has been the greatest source of human liberation in the 20th century. Every material social advance in the 20th century depended on the proliferation of inexpensive and reliable electricity.

Giving women the freedom to work outside the home depended on the availability of electrical appliances that free up time from domestic chores. Getting children out of menial labour and into schools depended on the same thing, as well as the ability to provide safe indoor lighting for reading.


Development and provision of modern health care without electricity is absolutely impossible. The expansion of our food supply, and the promotion of hygiene and nutrition, depended on being able to irrigate fields, cook and refrigerate foods, and have a steady indoor supply of hot water.

More energy, not less, is needed to help the poorer nations climb out of poverty and achieve at least a minimally acceptable standard of living.  Let's not demonize electricity, the means by which that energy can most safely and cost-effectively be provided to them.

Water Resources And Their Role In Development

Water is relatively abundant in the Mountain State, given ample rainfall and being located in several watershed headwaters. That's not always true, of course, and in the Eastern Panhandle, where development has been significantly greater, there have been some drought periods when water became quite scarce. It's also not true of the states that are downriver of us, causing some of them to cast a covetous eye in our direction.  For example, I worked on a flow augmentation project for one client, located in another state, who had to make provision for maintaining the flow in the Potomac River during times of drought, in order to be granted a permit to withdraw water. One way to do that was to maintain water in West Virginia that could be released during low flow periods.

The Wharton School of Economics, at the University of Pennsylvania,  has done a report on water availability and how it affects business decisions.  Valuing Water: How Can Businesses Manage The Coming Scarcity? may overstate the present problem a little, but it does explain the challenges inherent in managing water:

We live on a water-stressed planet. As the Alliance for Water Stewardship points out, “Current demand for water from cities, agriculture and industry is already unsustainable in many regions, yet is projected to increase significantly in coming years.” According to a report by the 2030 Water Resources Group (“Charting Our Water Future”), just 20 years from now, global water requirements will be “a full 40% above the current accessible, reliable supply.” The report concludes that a third of the world’s population will live in places where this deficit is larger than 50%. 

The facts underlying these projections are sobering. We all learned in school that we live on a watery planet. But over 97% of that water is salty; less than 3% is fresh and drinkable. And nearly 70% of the fresh water is frozen in the form of glaciers, ice and snow. Underground aquifers hold almost all the potable water available in liquid form. The rate of depletion of the these aquifers — which sustain agricultural and corporate users and provide drinking water for hundreds of millions of people — more than doubled, according to Geophysical Research Letters, from 33 trillion gallons per year to 75 trillion gallons, in the four decades between 1960 and 2000.

Marcellus Shale Legislation Fails; Governor To Make Executive Changes

Legislators were unable to agree this session on changes to the State's Oil & Gas statute, W. Va. Code 22-6-1 et seq, so Governor Tomblin is going to make changes to the program that can be accomplished without amending the law. One thing he can do is to hire more inspectors, which will likely be a first step. Here is a report from the Beckley Register-Herald on what we can expect.

WV DEP Holds State's First ZeroLandfill Recycling Event

The area’s architectural, interior design, retail, box store, landscaping and general contractor community can begin dropping off expired specification samples on Friday, March 18 for West Virginia’s first ZeroLandfill event.

The event will focus on “upcycling,” or keeping waste materials intact so they can be reused for another purpose.

It is being hosted by the Habitat for Humanity of Kanawha & Putnam County ReStore in Charleston. ZeroLandfill is a national reuse program that supports the supply needs of local artists and art educators, while reducing pressure on local landfill capacity.  It takes samples traditionally disposed of as waste and turns them into art and education supplies and it is good for the environment and the community.

Specification samples such as carpet tiles, wall coverings, glass, wood, fabric swatches, binders, paint samples, furniture, laminate chips and other materials can be dropped off at the Habitat ReStore, located at 301 Piedmont Rd., Charleston, between 9 a.m. and 6 p.m. on March 18, March 24 and April 1.

Once sorted, the “upcycled” items will be available for free to local art teachers, artists and others at the Habitat ReStore from 9 a.m. to 6 p.m. on April 2, 9 and 16.

ZeroLandfill has assisted the architectural and interior design community in identifying, diverting from local landfills and re-purposing back into the community thousands of pounds of expired specification samples that hold value for other audiences.

ZeroLandfill sponsors include: Habitat ReStore; the West Virginia Department of Environmental Protection; InterfaceFLOR Commercial Carpet Tile; Herman Miller Furniture; Armstrong Ceiling Systems; Maharam Fabrics; and ZMM Architects & Engineers.

For more information about the event, contact ZMM’s Jill Watkins at 304-342-0159 (ext. 240) or jmw@zmm.com.  Learn more about ZeroLandfill at www.zerolandfill.net.  On Facebook, look for “ZeroLandfill Charleston, WV.”

Alternative Energy Subsidies Far Exceed Fossil Fuel Subsidies

One of the primary objections to alternative fuels is that they are not viable unless heavily subsidized. Not so fast, say the environmentalists- you have to take into account the subsidies that are provided to fossil fuels in order to make a fair comparison.

The Breakthrough Institute recently did some calculations and learned that subsidies for alternative fuels far exceed those provided to fossil fuels.  The subsidies are twice as great worldwide (due primarily to governments that subsidize fuel supplies for their citizens) and are 7 times greater in the United States.  Here's what they came up with globally:

• Fossil energy:
  • Total subsidies (2009) = $312 billion;
  • Share of global energy consumption provided (2009) = 83 percent;
  • Subsidy per percentage of global energy consumption provided: $3.8 billion
• Renewable energy: 
• Total subsidies (2009) = $57 billion;
  Share of global energy consumption provided (2009) = 7 percent;
• Subsidy per percentage of global energy consumption provided: $8.1 billion (Note: excludes conventional hydropower and biomass)
• Compared on a per unit of energy provided basis, renewables therefore receive 2.1x more government subsidies than fossil fuels.
• Data source: International Energy Agency

Here's what it looked like in the US:

• Fossil energy:
  • Total subsidies (2002-2008, cumulative): $72.4 billion;
  • Share of U.S. energy consumption provided (2008): 84.6 percent;
  • Subsidy per percentage of U.S. energy consumption provided: $0.9 billion.
• Renewable energy:
  • Total subsidies (2002-2008, cumulative): $28.9 billion;
  • Share of U.S. energy consumption provided (2008): 4.3 percent;
  • Subsidy per percentage of U.S. energy consumption provided: $6.7 billion. (Note: excludes conventional hydropower)
• Compared on a per unit of energy provided basis, renewables therefore receive 7.4x more U.S. federal subsidies than fossil fuels.
• Data source: subsidies for Environmental Law Institute, energy cosumption from U.S. Energy Information Administration, "Annual Energy Outlook 2010." Note that subsidy figures are cumulative for the seven years from 2002 to 2008. The per unit subsidy figures for the U.S. should therefore not be strictly compared to the global figures above.

EPA Makes Outlandish Claims For Clean Air Act Benefits

One would expect that  the benefits of clean air would be easy to appreciate, but difficult to quantify.  After all, how can one realistically estimate how many persons would have died if air pollution were somewhat worse, in some places, some of the time?  That has not stopped EPA from making extraordinary claims for the benefits of the Clean Air Act.

A report released today by the U.S. Environmental Protection Agency (EPA) estimates that the benefits of reducing fine particle and ground level ozone pollution under the 1990 Clean Air Act  amendments will reach approximately $2 trillion in 2020 while saving 230,000 people from early death in that year alone.  The report studied the effects of the Clean Air Act updates on the economy, public health and the environment between 1990 and 2020.

In 2010 alone, the reductions in fine particle and ozone pollution from the 1990 Clean Air Act amendments prevented more than:

·    160,000 cases of premature mortality

·    130,000 heart attacks

·    13 million lost work days

·    1.7 million asthma attacks 

JunkScience.com has developed a stinging rebuttal to EPA's claims  that deserves a look.  They analyze EPA's assertions and calculations, and challenge some of their central premises.   At the conclusion, the authors ask a pertinent question - at what point do the marginal returns of cleaner air begin to diminish, such that large sums of money are being spent to chase ever smaller benefits?  At some juncture, much more human health and environmental benefit could be achieved by spending the money elsewhere.

EPA Not Ready, Delays Greenhouse Gas Reporting

EPA wasn't ready to roll out its GHG reporting program, so it has extended the reporting deadline indefinitely.  For those interested in GHG reporting in West Virginia, contact Anne Blankenship, acb@ramlaw.com,  who is heading up a seminar for the West Virginia Manufacturers Association on the topic.  EPA's press release follows.

EPA Announces Next Steps for Greenhouse Gas Emissions Reporting Program
WASHINGTON – The U.S. Environmental Protection Agency is announcing that its Greenhouse Gas (GHG) Reporting Program has recently completed extensive work to develop GHG data reporting requirements for a wide range of different industries in response to Congressional mandates. This program will provide Congress, stakeholder groups and the public with information about these emissions while helping businesses identify cost effective ways to reduce emissions in the future.

To ensure that the requirements are practical and understandable to the thousands of companies already registered to report under the program, the agency is in the process of finalizing a user friendly online electronic reporting platform.

Following conversations with industry and others, and in the interest of providing high quality data to the public this year,  EPA is extending this year’s reporting deadline – originally March 31 – and plans to have the final uploading tool available this summer, with the data scheduled to be published later this year.  This extension will allow EPA to further test the system that facilities will use to submit data and give industry the opportunity to test the tool, provide feedback, and have sufficient time to become familiar with the tool prior to reporting.  The agency will provide more detail on these intended changes in the coming weeks and will ensure that this reporting extension is in effect before the original reporting deadline of March 31, 2011.

In addition to the nine rulemakings necessary to comply with congressional direction for the program, over the past two years EPA has established a public help center that operates through our website and efficient mechanisms for stakeholders to get answers from EPA experts to detailed technical questions.  EPA has also conducted training sessions with each affected sector and held hundreds of meetings with stakeholders across the country.

EPA’s greenhouse gas reporting program, launched in October 2009, requires the reporting of GHG emissions data from large emission sources and fuel suppliers across a range of industry sectors. This program will provide data that will help industries find ways to be more efficient and save money. 

More information on these actions: http://www.epa.gov/climatechange/emissions/extension.html

More information on the GHG Reporting Program: http://www.epa.gov/climatechange/emissions/ghgrulemaking.html

Arch Mineral Settles Lawsuit Alleging NPDES Violations

The Department of Justice announced that Arch Coal and its subsidiaries have agreed to pay $4 million to settle Clean Water Act violations  in Virginia, West Virginia and Kentucky.  The DOJ said in a press release the following

As part of the settlement, Arch Coal has agreed to take measures that will prevent an estimated two million pounds of pollution from entering the nation’s waters each year.   Arch will also implement a treatment system to reduce discharges of selenium, a pollutant found in mine discharges.   Selenium runoff from mining operations can build up in streams and have an adverse impact on aquatic organisms.

  

A joint federal-state complaint filed in U.S. District Court in the Southern District of West Virginia by the United States, West Virginia and Kentucky alleged numerous violations of Arch Coal’s permits that set limits on pollutants to be discharged into streams.   The alleged excess discharges of iron, total suspended solids, manganese and other pollutants reflect deficiencies in operation and maintenance of wastewater treatment systems in place at four of the company’s mining facilities:   Coal Mac Inc; Lone Mountain Processing Inc; Cumberland River Coal Co.; and Mingo Logan Coal Co.   

As part of the settlement, the company has agreed to implement a series of inspections, audits and tracking measures to ensure treatment systems are working properly and that future compliance is achieved.   The company is also required to develop and implement a compliance management system to help foster a top-down, compliance and prevention-focused approach to Clean Water Act issues.  

EPA also has information about the settlement .  A 30 day public comment period will be allowed before the settlement can be finalized.