Shifting Emissions - Appalachian Coal Is Aid to India

Kevin Begos of the Associated Press reports that carbon dioxide emissions are at their lowest level in 20 years, presumably because utilities have switched from burning coal to burning gas.  Good news for those of you who believe cataclysmic climate change is being driven by greenhouse gas emissions.

Or maybe not such great news.  Kentucky and West Virginia will be sending 9 million tons of coal per year to India that otherwise might have been burnt here.  Here's the takeaway quotation form the Huffington Post article:

"With 1.6 billion people on this planet not having access to electricity, there is a tremendous international market for our coal worldwide," said Kentucky Coal Association President Bill Bissett. "While we currently only export about 5 percent of our Kentucky coal overseas, we expect that number to grow."

 As long as people are living in energy poverty, they'll keep looking for a way out of it. And telling them to do without cheap power from coal in order to prevent global warming, when temperatures haven't risen worldwide in 15 years, is not likely to have much effect.

EPA Publishes Emissions Limits and Standards For Oil And Gas Sector

EPA has just published in the Federal Register its final  rules amending emissions and performance standards for the oil and gas production industry.  Here is the summary from the Federal Register:

Responding to the requirements of a consent decree, this action finalizes several rules that apply to the oil and gas production industry and significantly reduce emissions of air pollutants. More particularly, the action finalizes:  

• New source performance standards (NSPS) for the Crude Oil and Natural Gas Production and onshore natural gas processing plant source category. The EPA reviewed two existing NSPS for onshore natural gas processing plant source category under section 111(b) of the Clean Air Act (CAA). This action improves the existing NSPS and finalizes standards for certain crude oil and natural gas sources that are not covered by existing NSPS for this sector.  

• National Emissions Standards for Hazardous Air Pollutants (NESHAP) for the Oil and Natural Gas Production source category and the Natural Gas Transmission and Storage source category. The EPA conducted risk and technology reviews (RTR) for these rules under section 112 of the CAA. In addition, the EPA has established emission limits for certain currently uncontrolled emission sources in these source categories. These limits reflect maximum achievable control technology (MACT).

Check the Federal Register for more details. Compliance dates for New Source Performance Standards Subpart  OOOO are found at 77 Fed Reg 49497.  The compliance dates for the NESHAPs are found on page 49503.

Licensed Remediation Specialist Test Set For September 19

In West Virginia, the Voluntary Remediation and Redevelopment Act (W. Va. Code Chapter 22, Article 22) provides  liability protection for anyone who remediates  a brownfield site or cleans up other environmental contamination in accordance with the terms of the Act.  The person undertaking  the remediation must have a plan designed by, and overseen by, a Licensed Remediation Specialist, or LRS.  To qualify as a LRS, one must pass a test that is given periodically by the DEP.  The next such LRS  test is scheduled for September 19.  See the announcement from the DEP, below.

            CHARLESTON – The Department of Environmental Protection is announcing that the next examination for licensed remediation specialist certification will be held from 1:30 to 3:30 p.m. on September 19, 2012 at Graduate College – South Charleston Campus, Room 205 of the Robert C. Byrd Academic Center Building, 100 Angus E. Peyton Drive, South Charleston, West Virginia.

      Certification is required for anyone submitting voluntary remediation and brownfields cleanup designs to the agency’s Office of Environmental Remediation (OER) for review.

      To qualify for the exam, you must have a bachelor’s degree in an approved scientific field and at least six years of relevant professional experience. You can also qualify with a high school diploma and 10 years of relevant professional experience. In either case, you must have at least one year of supervisory or project management experience.

      To take the exam, register online at www.dep.wv.gov. Under the Office of Environmental Remediation, go to the licensed remediation specialist online application and follow the instructions. Fees of $300 for the application and

$250 for the examination are required.  Online applications must be received by September 5, 2012.

      Only approved candidates with picture identification cards will be admitted to the testing site. Photo identification and the $250 testing fee must be presented before the exam starts.

      For more information about the exam, call Jamie Wolfe, CEGAS Manager, at (304) 696-6042, or by email at jawolfe@marshall.edu. Marshall University

(CEGAS) administers the licensing exam for OER.

      The legislature enacted the voluntary remediation and brownfields law during the 1996 legislative session. Voluntary remediation involves a responsible party cleaning up a site for future development, and brownfields involves clean up by a third party.

Sixth Circuit Rules Against EPA Natural Gas Aggregation Interpretation

Natural gas wells will be less likely to be subject to permitting under the Clean Air Act following a recent decision by the United States Court of Appeals for the Sixth Circuit, Summit Petroleum Corporation v. U.S. EPA, Nos. 09-4348; 10-4572.  EPA had decided that a natural gas sweetening plant and numerous gas wells connected to it were part of a single facility, and as such their emissions had to be aggregated in order to determine whether together they constituted a major stationary source. (Major sources are subject to more extensive permit and emissions control requirements under the Clean Air Act.) Sites are considered a single facility, and their emissions are added together, if they are commonly owned, part of the  same SIC Code grouping, and are located on contiguous or adjacent property. Summit conceded the first two parts of that test were met, but contended the third was not.  

EPA disagreed, concluding that Summit’s facilities were located on “adjacent properties” because, although the wells and sweetening plant were not located on contiguous properties, they were “functionally interrelated” because they were connected by a pipeline, and the wells relied on the sweetening plant to produce pipeline quality gas.  EPA believed that relationship satisfied the requirement of adjacency.  The Sixth Circuit parsed the word “adjacent” and found that it required the wells and sweetening plant to be closely located in a physical or geographical sense, not functionally dependent on one another.  The case was remanded for EPA to determine whether there was sufficient physical proximity for the emissions from all the sources to be aggregated for purposes of regulation.

The Sixth Circuit decision is similar to that reached by the West Virginia Air Quality Board in May, 2011, finding that natural gas wells and compressor stations need not be aggregated.  Hughes v. Benedict and Appalachia Midstream Services LLC

EQB Mandates Numeric Limits in Mining Permit To Protect Narrative Water Quality Criteria

On March 25, 2011 The West Virginia Environmental Quality Board issued a final order addressing many issues raised by environmental groups who had challenged a NPDES permit issued to Patriot Coal. The initial decision (which I did not locate on the EQB's web site)  remanded the permit to the DEP to take further action.  The DEP and the coal company, which had intervened, appealed that portion of the decision that required the DEP to do a reasonable potential analysis for conductivity, sulfates and total dissolved solids (TDS) .  The Circuit Court ordered the EQB to file supplemental findings of fact and conclusions of law that support its decision with regard to conductivity, sulfates and TDS.

There are no numeric water quality criteria for conductivity, sulfates, or TDS.  On remand, the environmentalists argued, and a majority of the Board agreed, that numeric limits are required in Patriot's permit in order to implement West Virginia's  narrative water quality standards at 47 CSR 2-3. Among other things, the narrative standard generally prohibits discharges that contain "materials which are harmful . . . to . . . aquatic life. "  The Board  concluded that the levels of conductivity, sulfates and TDS draining from Patriot's point sources adversely affected mayflies and other biota, and therefore permit limits must be set which would prevent such  damage.

The Board's July 30, 2012 supplemental  decision is required reading for anyone involved in NPDES permitting, because it demonstrates how the  EQB may require numeric permit limits for  substances or conditions that have no numeric water quality criteria.  I don't know whether the DEP and/or Patriot will appeal; they have very able counsel who are no doubt weighing their chances, as well as the fact that Patriot is in bankruptcy right now.

There were a couple aspects of the decision that interested me, beyond the decision itself. One was that the Board split 3-2, with Drs. Gilllespie and Blake opposing the Board's action.  Ordinarily the Board issues unanimous decisions, and this suggests that the recent addition of Dr. Blake to the Board may mean that we will see dissenting opinions in the future. The other is that the Board remanded the permit to the DEP to modify the permit.  Although this has frequently been done by the Board, it does not have that power. Under W. Va. Code 22B-1-7(g), the Board can  affirm, modify or vacate the order, or make such order as the DEP should have made, or approve or modify the terms of any permit.  It has no authority to remand the permit with instructions. A similar remand was challenged by the Division of Air Quality in an appeal of the AQB's decision in the TransGas case.  The Circuit Court of Kanawha County has not ruled on that, yet.

Over-Estimating Global Warming

Anthony Watts and others have made available the results of their study showing that the mis-siting of weather stations is responsible for about half of the reported warming in the United States over the past 30 years.  Weather stations are supposed to be put in grassy areas, away from concrete and other substances that absorb significant heat and re-radiate it.  It turns out that many of the nation's weather stations have been located near blacktop roads, on south-facing walls and otherwise are found in  places that show localized  higher-than-actual temperatures.  The result is that the nation's weather reporting system is influenced by the urban heat island (UHI) effect, where cities, with more concrete, blacktop and black tar roofs, soak up more heat than rural areas.  Relying on temperature reports from these areas reflects the effects of increasing urbanization, not changes in temperature or climate.

Here's the summary:

A reanalysis of U.S. surface station temperatures has been performed using the recently WMO-approved Siting Classification System devised by METEO-France’s Michel Leroy. The new siting classification more accurately characterizes the quality of the location in terms of monitoring long-term spatially representative surface temperature trends. The new analysis demonstrates that reported 1979-2008 U.S. temperature trends are spuriously doubled, with 92% of that over-estimation resulting from erroneous NOAA adjustments of well-sited stations upward. The paper is the first to use the updated siting system which addresses USHCN siting issues and data adjustments.

The new improved assessment, for the years 1979 to 2008, yields a trend of +0.155C per decade from the high quality sites, a +0.248 C per decade trend for poorly sited locations, and a trend of +0.309 C per decade after NOAA adjusts the data. This issue of station siting quality is expected to be an issue with respect to the monitoring of land surface temperature throughout the Global Historical Climate Network and in the BEST network.

You can see Mr. Watts' draft paper, and some of the comment on it, here. The continuing discussion is found here.

DC Court Rejects EPA Conductivity Guidance for Coal Mining

On July 31 Judge Reggie Walton (U.S. District Court for the District of Columbia) issued an opinion and order   rejecting  the federal Environmental Protection Agency’s (EPA) final conductivity guidance document.  The following summary of the decision was prepared by Jason Bostic of the West Virginia Coal Association. 

Today’s opinion from Judge Walton represents the second part of the case filed by the State of West Virginia, the National Mining Association and others challenging various parts of the “coordinated” federal regulatory review and consideration of  Appalachian coal mining operations outlined in a multi-agency Memorandum of Understanding in June 2009.

 In the first part of the case, Judge Walton invalidated the “Enhanced Coordinated Process” for reviewing coal-mining related Clean Water Act (CWA) Section 404 permits by EPA and the U.S. Army Corps of Engineers.  In the attached order, Judge Walton declares “…the Final [conductivity] Guidance, as an unlawful agency action, is hereby set aside.”

In the attached decision, Judge Walton concludes that EPA has overstepped its authority and trampled the rights reserved to individual states under the CWA:

Accordingly, the EPA’s “presumption” that, based on the scientific studies regarding conductivity, it is likely that all discharges will lead to an excursion or that the conductivity studies will be instructive on the matter, removes the reasonable potential analysis from the realm of state regulators. In other words, by presuming anything with regard to the reasonable potential analysis, the EPA has effectively removed that determination from the state authority. And there can be no question that a plain reading of the regulation leaves that determination, and the decision as to when it must be made, solely to state permitting authorities.

Should the EPA wish to alter the manner by which an reasonable potential analysis is conducted, it is of course free to amend the regulation in a manner consistent with the APA and its own statutory authority. Until it does so, however, it cannot make the reasonable potential determination for the states.

Judge Walton also ruled that EPA has illegally sought to extend its influence and control to regulatory areas addressed by the Surface Coal Mining & Reclamation Act and individual state mining regulatory programs:

…in circumstances where the EPA lacks the authority to issue the permits, whether there is overlap between requirements for SMCRA permits and CWA permits is of no moment. Accordingly, the EPA cannot justify its incursion into the SMCRA permitting scheme by relying on its authority under the CWA—it has no such permitting authority. The EPA has therefore impermissibly interjected itself into the SMCRA permitting process with the issuance of the Final Guidance.

This is an important rejection of EPA's attempt to control mining through imposition of conductivity criteria that are difficult to meet.  Here is some of the reaction  from Bloomberg and the Washington Post