Coal Power Plant Construction Speeds Ahead

Roger Pielke Jr. reports on the increase in coal-burning power plants, both here and in China. A an editorial was in yesterday's Daily Mail. The Associated Press also has an article on the issue. Given the long lead time for these plants, one wonders if companies weren't trying to get coal-fired base load plants in place so they could be grandfathered under anticipated climate change legislation. It looks less and less likely like that will happen.

West Virginia DEP Issues Narrative Criteria Guidance for Surface Mines

The West Virginia Water quality standards, 47 CSR 2, provide limits on the amount of pollutants that are allowed in state waters. Some of those limits are set as numbers that are not to be exceeded, but there is a section that describes, in words, what conditions are not allowed, like color in the water, or toxic effects. That has always raised some questions as to implementation, particularly as the narrative criteria are being used by EPA to deny mountaintop removal permits. The DEP has now come out with a guidance for implementing the narrative standard for surface mines. Below is the DEP's press release.

As the West Virginia Department of Environmental Protection committed to doing in March, the agency has developed a guidance document for implementing and enforcing West Virginia’s narrative water quality criteria. The guidance document was developed in accordance with parameters set forth in the federal Clean Water Act and applied through the West Virginia Water Pollution Control Act.

The guidance document is a tool to be used by the DEP to develop National Pollutant Discharge Elimination System

(NPDES) permits for the coal mining industry. The goals of the document are to advance water quality and assure that surface mining operations are conducted in ways that protect the narrative water quality standards.

Comments submitted by members of the public, as well as data and studies conducted by DEP staff were used in the development of the guidance document.

“We trust that EPA will give deference to West Virginia’s guidance document, as it was created to satisfy requirements outlined in the Clean Water Act,” DEP Cabinet Secretary Randy Huffman said.

The guidance document addresses matters such as reasonable potential analyses for aquatic impacts downstream and extensive monitoring before and during mining to ensure that aquatic life use is being adequately protected.

“This document will result in changes that are markedly different from how mining has been conducted for the last 30 years,” Huffman said.

The DEP considers the guidance a dynamic document that will likely be modified in the future as technology and best management practices develop and improve.

In addition, while this document specifically addresses concerns related to the mining industry, it is designed to be adapted in the future to address all discharges to water bodies that will cause, or that have the reasonable potential to cause or contribute to, excursions from narrative water quality standards.

BACKGROUND

It became apparent in 2009 that the absence of a written plan to address narrative water quality criteria at the state level led the US Environmental Protection Agency to insert itself into the 404 and 402 permitting processes.

Not only is EPA exercising its veto authority, it has completely taken control of all water-related permitting for mining activities.

On April 1, when the EPA issued its “comprehensive guidance” regarding requirements of the 402 and 404 Clean Water Act permitting programs, it allowed for the states to establish their own requirements. That is what West Virginia is doing.

Huffman said, “We developed this guidance document for West Virginia in a manner that we are confident is consistent with the Clean Water Act.”

The guidance document, an accompanying justification and background document and the comments submitted by the public in March are available on the agency’s website at www.dep.wv.gov under the Permitting section of the home page.

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.