Watts Up With That Reaches Milestone

Watts Up With That, the Web's premier blog on climate change, has just had its 50 millionth visit. Good news for a fantastic site. Operated by Anthony Watt on a shoestring, and with help from volunteer moderators, it is the go-to site for information about all things related to weather and climate change. He's a skeptic, but welcomes comments from all sides. You need only compare his site with the alarmist sites like RealClimate to see the difference in approach. Joe Romm, Gavin Schmidt and others in the warmist camp are shrill, offensive defenders of the global warming faith who squelch comments supporting opposing views. It's no wonder that their sites appear to be declining in following.

Other great sites to look at are Climate Audit (pretty technical, run by Steve McIntyre, the destroyer of the hockey stick) and Bishop Hill, an Englishman with a great take on climate change.

EPA Rejects Petitions to Reconsider Greenhouse Gas Findings

In a decision that will surprise no one, EPA rejected requests by citizens, corporations and states to reconsider its determination that greenhouse gases threaten the public health and environment. Some or all of them will presumably file suit to challenge EPA's decision, joining the large number of lawsuits challenging other aspects of the EPA's decision to regulate GHG emissions. The EPA decision, and related information, can be found here.

Several years ago, in the case of Massachusetts v. EPA, the US Supreme Court decided that carbon dioxide is a pollutant, as that term is defined in the Clean Air Act. Section 202(g) of the Clean Air Act defines an air pollutant as "any . . . substance or matter which is emitted into or otherwise enters the ambient air." The definition is so broad that the Court had no problem finding that carbon dioxide and other GHGs are pollutants, and sent the matter back to EPA to determine whether they endanger human health or the environment. Here is a Wikipedia summary of the case.

On remand, EPA determined that GHGs pose a danger, primarily due to their supposed effects on global climate change. EPA reconsidered that decision in response to the petitions, and in yesterday's action reiterated its conclusion that the world is imperiled by carbon dioxide. The result is that significant restrictions on GHG will now be required.

It's unlikely that this finding will hold up. There is too much question about the science behind the finding, and too much political opposition, for it to remain unchanged.

Comments Invited on West Virginia Voluntary Land Stewardship Program

Many clean ups of contaminated property do not end with soil or ground water contamination completely removed. It is simply too expensive to try to remediate to that last degree, and there may not be any corresponding environmental benefit. Often, the remediation depends on protections like putting parking lots down to prevent water infiltration, or placing language in deeds that prohibits use of the property for residences. If these are to be kept in place for many years, someone has to verify that they remain effective. That maybe difficult if the property owner goes bankrupt, or forgets about the restrictions.

Recognizing this growing problem, the DEP put together a work group to study how an independent body might be structured to guarantee that these "institutional and engineering controls" stay in place. My colleague Rob Lannan is on that work group and reports that

since February 2009, a select group of trade association representatives, representatives of the academic community, various state agencies, and individual companies have been meeting at the request of the DEP Secretary to discuss the feasibility of developing a voluntary land stewardship program designed to insure the continued integrity of long-term institutional controls and engineering controls at various types of remediated sites in West Virginia. Attached is draft report summarizing the Group’s work and providing certain preliminary recommendations regarding a path forward. We have been asked to provide comments on this document by Friday, July 30, 2010. Please contact Rob Lannan at 304-347-8346 or rel@ramlaw.com to provide any comments or with any questions you might have.

Thanks.

You can find the report here.

National Mining Association Sues EPA, Corps Over Interference With Mining

The National Mining Association has just filed suit against the US Army Corps of Engineers and US Environmental Protection Agency, alleging a systematic obstruction of the coal mine permit issuing process. The press release, which is reproduced below but may be easier to read on the NMA's website, can be found here. The complaint is here.

Washington, D.C. - The National Mining Association (NMA) today filed suit against the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) for unlawfully obstructing permitting of coal mining operations in the Central Appalachian coal region and beyond jeopardizing thousands of jobs and a vital supply of fuel to meet the nation’s electric power needs.

NMA’s lawsuit, filed in the Federal District Court for the District of Columbia, contends EPA and the Corps have circumvented clear requirements for public notice and comment of a host of federal statutes and ignored calls for peer-reviewed science as part of a deliberate policy to substitute agency “guidance” for formal rulemaking.

"NMA members’ efforts to navigate this unlawful process and obtain reasonable and predictable permit terms have been unsuccessful, leaving us no choice but to challenge the EPA and Corps policy in court," said NMA President and CEO Hal Quinn. "Detailed agency guidance is not a valid substitute for lawful rulemaking based on public notice and comment," Quinn explained. "The agencies’ continued abuse of the law to impose arbitrary standards on mining operations, state agencies and other federal regulatory bodies threatens the entire region with further economic misery and stagnant employment."

Specifically, NMA says EPA and the Corps have violated the Administrative Procedures Act, the Clean Water Act, the National Environmental Policy Act and the Surface Mining Control and Reclamation Act by disregarding explicit requirements for public comment and formal rulemaking procedures. Moreover, EPA has usurped authorities clearly granted to the states and other federal agencies and has used technical benchmarks for assessing water quality that are both arbitrary and capricious.

In effect, said NMA, the result has been a de facto moratorium on coal mining that is irreparably harming NMA’s member companies, the welfare of coal communities and the economy. According to a May 21 report by the Senate Environment and Public Works Committee Minority staff, nearly 18,000 new and existing jobs and more than 80 small businesses are jeopardized by the unlawful policy EPA and the Corps have applied to the 190 permits still awaiting action in mid-May. The loss of jobs and economic opportunity will continue to mount, as additional permits fall into the permitting nadir.

"The Corps is allowing EPA to impose unilateral control over coal mine permits throughout Appalachia, imposing a moratorium on jobs, energy production and the economic future of communities in the region. The faulty science at the heart of this policy serves no environmental good. These actions must be held to the same standard required of all substantive rules," Quinn concluded.

For a copy of NMA’s complaint, seehttp://nma.org/pdf/tmp/072010_NMA_Complaint_ECP_Guidance.pdf.
For a copy of the Senate Environment and Public Works Committee Minority Staff Report, see http://nma.org/pdf/tmp/072010_Senate_Minority_Staff_Report.pdf.

West Virginia Carbon Sequestration Draft Report Issued

In 2009 the West Virginia Legislature passed HB 2860, the Carbon Dioxide Sequestration Act, located at W. Va. Code Chapter 22, Article 11A. The Act required creation of a task force to investigate the potential and problems associated with CO2 sequestration in West Virginia. Successful sequestration would have important ramifications for coal-generated power in West Virginia.

The Carbon Dioxide Sequestration Working Group issued its initial report on July 1, 2010. It is located here. Following is a short summary of the report, prepared by Anne Blankenship:

Based on the ten questions assigned to the group in the Carbon Dioxide Sequestration Act, the Working Group divided its Preliminary Report into three sections, each with a corresponding subcommittee: Feasibility, Geology & Technology, and Legal. Under the Act, the Group’s Final Report is due by July 1, 2011; the recommendations and conclusions in the Preliminary Report may change in the Final Report.

The Feasibility Subcommittee is responsible for four tasks identified in the Act: recommending appropriate methods of encouraging carbon capture and sequestration (CCS); assessing the economic and environmental feasibility of large, long-term CCS; recommending methods of facilitating the widespread use of CCS throughout the state; and assessing the costs, benefits, risks, and rewards of large-scale CCS projects in the state. The Subcommittee noted that CCS for coal plants is not commercially feasible at this time; based on this, the Subcommittee is considering a recommendation that the state pursue alternative sources of energy (natural gas, hydro, biomass, etc.) while simultaneously investing in and encouraging the development of CCS technology for coal-fired plants.

The Geology & Technology Subcommittee is tasked with identifying monitoring sites for geologic sequestration; assessing the feasibility of CO₂ sequestration in the state; and assessing the state’s potential CO₂ sequestration capacity. Based on rough early estimates, the state has enough storage capacity for between 47 and 147 years of CO₂ injection activity.

The Legal Subcommittee is charged with analyzing the legal, regulatory, and policy aspects of CCS, with a particular focus on the acquisition of underground pore space where injected CO₂ can go. In addition to other amendments to the Act, the Subcommittee recommended placing rock layers 2,500 or more feet below the surface into the public domain unless those layers are being used for the extraction or storage of gas, coal, or oil.

EPA Addreses Interstate Pollution With Significant New Transport Rule

This from Marsha Kauffman and Anne Blankenship of our office:

On July 6, 2010, the US Environmental Protection Agency (EPA) proposed the Transport Rule which will require 31 states, including West Virginia, to significantly improve air quality by reducing power plant emissions that contribute to ozone and fine particle pollution in other states. When final, the Transport Rule will replace the 2005 Clean Air Interstate Rule (CAIR). The CAIR requirements for pollution reductions remain in effect and the CAIR regional control programs are operating while EPA works to complete the Transport Rule.

EPA is proposing one approach for reducing SO2 and NOx emissions in states covered by this rule and taking comment on two alternatives:

1. In EPA’s preferred approach, EPA is proposing to set a pollution limit (or budget) for each of the 31 states and the District of Columbia. This approach allows limited interstate trading among power plants but assures that each state will meet its pollution control obligations.

2. 1^st Alternative – EPA proposes to set a pollution limit or budget for each state. This option allows trading only among power plants within a state.

3. 2^nd Alternative – EPA proposes to set a pollution limit for each state and to specify the allowable emission limit for each power plant and allow some averaging.

EPA anticipates that power plants may use the following to achieve emission reductions:

· Operate already installed control equipment more frequently

· Use low sulfur coal

· Install control equipment such as NOx burners, Selective Catalytic Reduction, or scrubbers (Flue Gas Desulfurization)

The emissions budgets for West Virginia are:

	SO2	NOx
2012 and 2013	205,422	51,990
2014 and later	119,016	51,990

· The emissions reductions will begin to take effect in 2012.

· West Virginia will be required to reduce emission of SO2 and NOx as well as NOx during the Ozone Season.

· Although a state may choose to develop its own state plan, EPA is proposing federal implementation plans (FIPs) for each of the states covered by the Transport Rule.

· The public comment period will run for 60 days following publication in the Federal Register.

· EPA plans to hold three (3) public hearings on the proposed Transport Rule. Information regarding the public hearings will be provided in a separate Federal Register Notice.

EPA Sets New Air Quality Standard for Sulfur Dioxide

EPA adopted a new one hour air quality standard (74 parts per billion) and revoking its prior 24 hour standard. The problems caused by SO2 are due toshort term, intense exposures rather than day-long expsures.

It's worth noting that SO2 has been reduced 71% since 1980.

WASHINGTON – The U.S. Environmental Protection Agency (EPA) is issuing a final new health standard for sulfur dioxide (SO2). This one-hour health standard will protect millions of Americans from short-term exposure to SO2, which is primarily emitted from power plants and other industrial facilities. Exposure to SO2 can aggravate asthma and cause other respiratory difficulties. People with asthma, children, and the elderly are especially vulnerable to the effects of SO2.

“We’re taking on an old problem in a new way, one designed to give all American communities the clean air protections they deserve. Moving to a one-hour standard and monitoring in the areas with the highest SO2 levels is the most efficient and effective way to protect against sulfur dioxide pollution in the air we breathe,” said EPA Administrator Lisa P. Jackson. “This is one of many pollutants we’ve been able to significantly reduce through the Clean Air Act, keeping people healthy, protecting our environment and growing our economy. This new standard -- the first in almost 40 years -- will ensure continued success in meeting these challenges.”

EPA is setting the one-hour SO2 health standard at 75 parts per billion (ppb), a level designed to protect against short-term exposures ranging from five minutes to 24 hours. EPA is revoking the current 24-hour and annual SO2 health standards because the science indicates that short-term exposures are of greatest concern and the existing standards would not provide additional health benefits.

EPA is also changing the monitoring requirements for SO2. The new requirements assure that monitors will be placed where SO2 emissions impact populated areas. Any new monitors required by this rule must begin operating no later than Jan. 1, 2013. EPA is expecting to use modeling as well as monitoring to determine compliance with the new standard.

The final rule also changes the Air Quality Index to reflect the revised SO2 standard. This change will improve states’ ability to alert the public when short-term SO2 levels may affect their health.

EPA estimates that the health benefits associated with this rule range between $13 billion and $33 billion annually. These benefits include preventing 2,300 to 5,900 premature deaths and 54,000 asthma attacks a year. The estimated cost in 2020 to fully implement this standard is approximately $1.5 billion.

The first National Ambient Air Quality Standards for SO2 were set in 1971, establishing both a primary standard to protect health and a secondary standard to protect the public welfare. Annual average SO2 concentrations have decreased by 71 percent since 1980.

The final rule addresses only the SO2 primary standards, which are designed to protect public health. EPA will address the secondary standard – designed to protect the public welfare, including the environment – as part of a separate review to be completed in 2012.

EPA expects to identify or designate areas not meeting the new standard by June 2012.

More information: http://www.epa.gov/air/sulfurdioxide