Energy and Environment Monitor

TVA Ordered to Install Controls in North Carolina’s Public Nuisance Suit

            Following a twelve-day bench trial in the U.S. District Court for the Western District of North Carolina, U.S. District Judge Lacy H. Thornburg found that nitrogen oxides (NO_x), sulfur dioxide (SO₂) and mercury emissions from 4 TVA plants located within 100 miles of North Carolina’s border constituted a public nuisance and ordered TVA to install emission controls.  NC v. TVA, No. 1:06-cv-20 (W.D.N.C. Jan. 13, 2009).  The decision is significant because it is the first trial court decision in a common-law public nuisance action by a state based upon environmental concerns in the state allegedly caused by emissions from power plants in other states.

            At issue were NO_x, SO₂, and mercury emissions from 11 TVA coal-fired power plants, 7 of which are in Tennessee , 2 in Kentucky , and 2 in Alabama.  Applying the law of the source states, the district court imposed an injunction upon TVA requiring the installation and continual, year-round use of pollution control technologies with respect to 4 plants located within 100 miles of North Carolina’s western border.  The district court denied injunctive relief as to the other 7 plants, all of which were located more than 100 miles from North Carolina, finding there was insufficient evidence that emissions from those plants were having an unreasonable impact on North Carolina’s citizens or significantly interfering with North Carolina’s air quality.

            Although the district court issued injunctive relief as to the four 100-mile plants, the district court acknowledged that public nuisance was not the “remedy of choice” and that interstate air pollution concerns are generally resolved by the U.S. Environmental Protection Agency under the Clean Air Act.  The district court explained that public nuisance principles were “less well-adapted than administrative relief to the task of implementing the sweeping reforms that North Carolina desires.”  Recognizing that a system-wide cap on TVA was both more efficient from a business standpoint and also more effective at diminishing overall pollution, the district court stated that the elements of public nuisance, including strict requirements as to both causation and unreasonableness of the harm, did not allow such a cap.

            In support its award of injunctive relief, the district court found that NO_x and SO₂ in the atmosphere form the pollutants PM_2.5 and ozone, both of which have significant negative impacts on human health and the environment.  The district court also found that emissions reductions in a particular state have the most benefit within that state, emissions from a source located outside of state can still have significant impacts on that state’s air quality.  In the case of the TVA plants, the district court found that the four 100-mile plants caused annual average PM_2.5 concentrations to increase by 0.4-0.5 µg/m³ in western North Carolina and 0.3-0.4 µg/m³ in other parts of North Carolina.  The district court also found that the 100-mile plants contributed 4-8 parts per billion (ppb) to peak 8-hour ozone concentrations in western North Carolina and 2-4 ppb to other parts of North Carolina.

            The district court further found that air pollution control technologies were available, namely scrubbers for SO₂ and selective catalytic reduction (SCRs) or selective non-catalytic reduction (SNCRs) for NO_x, and that together SCRs and scrubbers also remove mercury.  Although the district court found that pollution controls at the four 100-mile plants would cost in excess of $1 billion, the district court concluded that the controls were warranted and that it was “financially feasible” for TVA to bear the cost of installation, maintenance, and year-round operation of the available technologies.  Agreeing with North Carolina’s expert, the district court found that TVA must meet timelines of 21 months and 27 months for SCRs and scrubbers, respectively.

 

            Concluding that the uncontrolled emissions for the four 100-mile power plants was a public nuisance to the citizens of North Carolina, the district court issued an injunction requiring prompt installation and year-round usage of appropriate pollution control technologies at the four 100-mile plants.  The district court faulted TVA for “fail[ing] to speedily install readily available pollution control technology,” calling such conduct “unreasonable” under the circumstances.    For additional information concerning North Carolina’s public nuisance lawsuit against TVA, contact Gale Lea Rubrecht at galelea@jacksonkelly.com or 304-340-1200

        This article was authored by Gale Lea Rubrecht, Jackson Kelly PLLC. For more information on the author see here.

Second Challenge to Stream Buffer Zone Rule filed in Washington

            The “stream buffer zone” (“SBZ”) rule, issued over two decades ago pursuant to SMCRA, prohibited mining activities within 100 feet of intermittent and perennial streams absent certain findings by the regulatory authority.  Neither OSM nor any of the states with similar rules had ever interpreted the rule as prohibiting excess spoil “fills” permitted under Section 404 of the Clean Water Act.  In October 1999, however, a federal district court judge in West Virginia ruled that the West Virginia surface mining authorities could not, as a matter of law, make the findings necessary to escape the rule’s prohibition with respect to the excess spoil valley fills and refuse facilities necessary to conduct mining operations in most of central Appalachia.  

            Also, late in the Clinton administration, the Department of Justice filed a brief with the Fourth Circuit largely agreeing with the district court ruling—an abrupt departure from its long-time application of the rule.  While the Fourth Circuit later reversed the decision on jurisdictional grounds and a WV administrative appellate body later rejected the substance of the district court ruling, the incoming Bush administration’s OSM feared that later administrations might try to do what had been done in the Fourth Circuit at the end of the Clinton administration—issue an interpretation of the SBZ rule that would prohibit much of the mining in central Appalachia.  Accordingly, for over 4 years, OSM worked to issue a revision to the SBZ rule to clarify that it did not prohibit valley fills or refuse impoundments.  OSM completed an environmental impact statement on its proposed rule in late 2008, and on December 12, 2008, finalized its revisions to the SBZ rule.  The new rule expressly allows fills, but requires OSM to make findings of impact minimization that overlap with findings required by the Corps of Engineers in administration of its Clean Water Act 404 program.

            On December 22, 2008, a group of environmental groups filed a lawsuit against both OSM and USEPA challenging the rule.  They rely on SMCRA, the Clean Water Act, the National Environmental Policy Act (“NEPA”) and the Administrative Procedures Act (“APA”) for their challenge.  See Coal River Mtn. Watch et al v. Kempthorne.  Those claims challenge not only OSM’s rule, but also USEPA’s written concurrence in the rule (required by SMCRA).  The claims are summarized below:

1.         Claims Against OSM:

a.       Count 1: NEPA Claim: OSM ignored available evidence of harm; overstated the benefits of the rule, and failed to explore alternatives;

b.         Count 2: APA and SMCRA: OSM provided no reasoned explanation for departure from the earlier SBZ rule (or OSM’s litigation-driven interpretations of it in the 1999 WV litigation); and the new rule violates SMCRA itself.

 

2.        Claims Against USEPA:

a.         APA: No notice and opportunity to comment on EPA’s concurrence with OSM’s SBZ rule and no explanation for departing from earlier EPA interpretations; and

 

b.         Clean Water Act: EPA’s concurrence with SBZ rule violates EPA’s duty to avoid conflicts between SMCRA and CWA.

On January 16, 2008, the Southern Environmental Law Center issued a press release stating that it and several other groups had just filed a second challenge in the D.C. District Court to the SBZ, this one focusing more on Endangered Species Act issues in southwestern Virginia and Tennessee.  The link to its press release is:

http://www.southernenvironment.org/newsroom/press_releases/2009_1_16_stream_buffer_rule_groups_sue_bush_admin_on_coal_mining_law/

            This article was authored by Robert G. McLusky, Jackson Kelly PLLC. For more information on the author see here.

EPA Encourages Use of Flexible Permitting in Final Rule

            On January 13, 2009, the U.S. EPA issued the final rule authorizing the use of “flexible air permits”, known as “FAPs” for both Clean Air Act Title V Permits and encouraging their use in New Source Review (NSR) permitting, i.e. Prevention of Significant Deterioration in attainment areas and Nonattainment NSR in non-attainment areas and “minor” NSR programs, which apply to new and modified sources that do not meet the emissions thresholds for the NSR programs that apply to major sources.

 

FAPs for CAA Title V Operating Permits Program: 

            In the context of a Title V permit, the FAP enables permitted major source to obtain approval for described categories of changes up front without subsequent review of the changes when they occur.  (Major sources emitting 100 tons per year (TPY) or more of any regulated air pollutant or 10 TPY or more of any individual hazardous air pollutant or 25 TPY or more of combined hazardous air pollutants.) In order to utilize a FAP in a Title V permit, the permittee must  request the FAP and be able to identify, and the permitting authority be able to authorize, the anticipated changes relevant to all applicable requirements.  Any approved FAP would authorize a source to make certain changes described in the permit without further review from the state, local or tribal permitting authority. The source must continue to meet all Clean Air Act requirements that apply, such a national emissions standards for hazardous air pollutants and/or new source performance standards.

             Available FAP approaches include the use of alternative operating scenarios (AOSs) and approved replicable methodologies (ARMs). An AOS authorizes a source to make changes to the operations of existing emissions units without requiring a Title V permit revision at the time the changes are made. The AOS identifies the applicable requirements associated with the alternative scenario and assures ongoing compliance.  An AOS is the same provision found at 40 CFR 70.6(a)(9), which generally provides that any Title V Permit must include terms and conditions for reasonably anticipated operating scenarios identified in its application by the source and as approved by the permitting authority. Over the years, EPA has proposed rulemaking or guidance to address operational flexibility, but has not finalized any. The new rule

 •Adds a definition of AOS, but eliminating the reference to “physical and operational changes” from the proposed definition.

§70.2 Definitions. . . . Alternative operating scenario (AOS) means a scenario authorized in a part 70 permit that involves a change at the part 70 source for a particular emissions unit, and that either results in the unit being subject to one or more applicable requirements which differ from those applicable to the emissions unit prior to implementation of the change or renders inapplicable one or more requirements previously applicable to the emissions unit prior to implementation of the change.

• The permittee must supplement its application with additional information when necessary to define permit terms and conditions to implement a permittee’s proposed AOS including a compliance plan

• The permittee’s AOS application must contain documentation that the source has obtained all authorizations required under the applicable requirements relevant to a proposed AOS or a certification the source has submitted all relevant materials for obtaining such authorizations.

• Where rules refer to AOSs consistent terminology shall be used.

            An Approved Replicable Methodology (ARM) is a replicable protocol placed in a Title V permit to facilitate compliance with an applicable requirement in situations that otherwise could require a permit revision.  Sometimes, circumstances change for a source that bring about the need to recalculate or update a value used either in determining the compliance status of the source with an applicable requirement or in determining the applicability of a requirement. For example, an ARM could specify a replicable testing procedure for updating an emissions factor, rather than requiring a permit revision to accomplish its update. To be approvable, an ARM must be based on sound scientific/mathematical principles and deliver replicable results (usually numerical) when operating on the same input data. EPA believed that ARMs  have been  generally available without any rulemaking (depending on the structure and content of individual part 70 programs, as approved for states), but added the regulatory changes to  40 CFR parts 70 and 71 in order to promote greater certainty and use of ARMs, where the permitting authority decides it is appropriate to do so. The new definition of ARM is:

Approved replicable methodology (ARM) means part 71 permit terms that:

(1)Specify a protocol which is consistent with and implements an applicable requirement, or requirement of this part, such that the protocol is based on sound scientific and/or mathematical principles and provides reproducible results using the same inputs; and

(2)Require the results of that protocol to be recorded and used for assuring compliance with such applicable requirement, any other applicable requirement implicated by implementation of the ARM, or requirement of this part, including where an ARM is used for determining applicability of a specific requirement to a particular change.

EPA does not expect that these clarifications to the existing title V regulations will necessitate revisions to many approved state operating permit programs.  Revisions, if needed, would consist of adding definitions for AOS and ARM and codifying certain current policy.

New Source Review: PSD/ Nonattainment NSR / Minor NSR:

            In the final rule, based on comments received, EPA determined not to finalize any of its proposed changes to the NSR program in parts 51 and 52 nor in the regulations for minor NSR .Comments received on EPA’s  proposed rule which did propose changes to the programs including providing for  “Green Groups”,  affirmed that  states, in general, have sufficient existing authority to advance approve minor NSR, where they determine it appropriate to do so, and to incorporate the permit terms accomplishing this approval into Title V permits as applicable requirements.

             The “Green Group” proposal  applicable for major source NSR,  would have treated  a number of emissions activities as a single emissions unit (termed, a “Green Group”) where the emissions from each of these activities would be routed to a common emissions control device meeting BACT/LAER, and future emissions increases and other changes within the Green Group would be approved for a 10-year period in a major NSR permit, as an extension of EPA’s  December 2002 NSR reform regulations (67 FR 80186, December 31, 2002). Legal rationale for Green Groups was premised on the concept that the changes and emissions activities within a Green Group are specifically authorized to occur as a result of undergoing, not avoiding, major NSR. Although largely supported by industry commenters, opposition by State and environmental interest groups led EPA to withdraw the “Green Group” proposal while noting that EPA might re-initiate the proposal if supported by evidence from “pilot projects”.

             The principal FAP approach used in minor NSR programs is advance approvals.  In one permitting action, advance approvals authorize sources to undertake multiple planned individual changes or described categories of changes within a specified time period.  In the absence of advance approvals, such planned changes would have to be individually reviewed and approved by the permitting authority at the time the changes are made. Advance approvals contained in minor NSR permits can then be incorporated into the source’s operating permit as applicable requirements. State minor NSR requirements, where applicable, are among the most important in designing a FAP for sources making frequent and/or rapid physical and operational changes. Absent an up-front authorization for these changes under minor NSR (usually categories or types of changes), an individual review by the permitting authority typically is required at the time each change would be approved.

            In its final rule, EPA describes successful approaches used in state pilot projects to authorize “advance approved” changes in minor NSR programs which are typically used in conjunction with plantwide emissions caps, such as Plantwide Applicability Limits (PAL) and Potential-to-Emit (PTE) limits, to prevent major NSR from being triggered by physical or operational changes made under the advance approval for minor NSR. EPA determined that many states already have sufficient authority to issue advanced approvals under minor NSR programs, as appropriate.

            Although no states would need to revise their minor or major NSR programs in order to implement the flexibility approaches described in the final flexible air permitting rule, EPA intends to support states where they choose to revise their minor or major NSR regulations to provide more explicit authority for FAPs.

            This article was authored by Barbara D. Little, Jackson Kelly PLLC. For more information on the author see here.

EPA Administrator Jackson Orders Review of Bush Administration PSD Document

On February 17, 2009, Obama EPA Administrator Jackson granted a petition for reconsideration of a Bush Administration memo regarding the applicability of the Clean Air Act Prevention of Significant Deterioration program to carbon dioxide. The interpretive memo was signed by then-EPA Administrator Stephen Johnson in December of 2008.

Shortly thereafter several environmental groups, including the Sierra Club, raised concerns about the memo’s potential impact on American communities and neighborhoods. In January of 2009, the Sierra Club and other parties then petitioned EPA to reconsider the Johnson memorandum.

In announcing her decision to grant the petition, EPA Administrator Jackson said “I am granting this petition because we must learn more about how this memo affects all relevant stakeholders impacted by its provisions.” She added “This will be a fair, impartial and open process that will allow the American public and key stakeholders to review this memorandum and to comment on its potential effects on communities across the country. EPA’s fundamental mission is to protect human health and the environment and we intend to do just that.” Obviously, the level of fairness and impartiality remains to be seen.

            Jackson noted that EPA will vigorously review the Johnson memo to ensure that it is consistent with the Obama Administration’s climate change strategy and interpretation of the Clean Air Act. EPA will seek comment from the general public on the memo and its potential impact as part of its process to facilitate a transparent, impartial and fair review.

EPA noted that its action is the latest in a series of steps intended “to ensure EPA policies and procedures are consistent with EPA’s overall mission to protect human health and the environment.”

This article was authored by Skipp Kropp, Jackson Kelly PLLC. For more information on the author see here.

Office of Surface Mining Issues New Rule Tightening Restrictions on Excess Spoil, Coal Mine Waste, and Mining Activities in or Near Streams

           The Office of Surface Mining Reclamation and Enforcement (OSM) announced publication in the Federal Register in mid-December of a Federal rule that places new restrictions on how coal mine operators can dispose of coal mine waste and the excess spoil created by the mining operation. The rule also requires that mine operators avoid disturbing perennial and intermittent streams to the extent possible and clarifies when mine operators must maintain an undisturbed buffer between the mine and adjacent streams. “We believe that the new rule is consistent with a key purpose of the Surface Mining Law, which is to strike a balance between environmental protection and ensuring responsible production of the coal essential to the Nation’s energy supply,” stated C. Stephen Allred, Assistant Secretary of the Interior, Land and Minerals Management. “The new rule also fosters regulatory stability by clarifying the stream buffer zone rule and resolving long-standing controversy over how that rule should be applied,” he added.

 

The issue of how and where excess spoil can be disposed of has received conflicting interpretations by courts in recent years. In 1999, a Federal district court in West Virginia ruled that the stream buffer zone rule prohibits valley fills in streams. In 2001, the U.S. Court of Appeals for the Fourth Circuit reversed the 1999 decision on procedural grounds. In 2002, the same district court held that the Surface Mining Law did not authorize the disposal of overburden in streams, but the 4th Circuit Court disagreed.

 

Publication of the rule represents the culmination of a five-year process. OSM issued its first version of the proposed rules in January of 2004 and a revised proposal in August of 2007. While developing the rule, OSM solicited public input throughout the process. The agency received approximately 43,000 comments on the proposed rule during its comment period and held four public hearings attended by approximately 700 people. The rule appeared in the Federal Register in mid-December and took effect on January 12, 2009.

 

OSM prepared a detailed Environmental Impact Statement (EIS) that was made available in early 2008. Of the alternatives considered in the EIS, OSM selected the most environmentally protective alternative. The EIS concludes that the preferred alternative’s net effect is positive because it requires coal mining operations to minimize certain impacts. During surface mining, operators remove rock that overlies the coal deposits. The process of removing this rock — commonly referred to as overburden — fractures the rock, which causes it to increase in volume. In areas with steep slopes, some of the overburden cannot be returned to the mined-out area. The remaining overburden, known as excess spoil, typically is placed in the upper reaches of adjacent valleys.

 

In order to minimize the size of the excess spoil fills constructed in stream valleys, the new rule provides that mining operations must return as much of the overburden as possible to the excavation created by the mine. The new rule also provides that the operator must avoid constructing fills in streams to the extent possible. When avoidance is not possible, the operator must identify a range of reasonable alternatives for disposing of the remaining overburden and select the alternative with the least overall adverse environmental impact. The new rule requires that the operator avoid disturbing land within 100 feet of a perennial or intermittent stream unless he or she can demonstrate that it is not reasonably possible to avoid disturbance, or that avoidance is not necessary to meet environmental requirements. The new rule also reiterates that the operator must comply with all requirements of the Clean Water Act before conducting any activities that require authorization under that law.

 

This article was authored by Donnie L. Adkins, Jackson Kelly PLLC. For more information on the author see here.

2009 Due Dates for Stakeholder Input on Chemicals Proposed for Addition to the Stockholm Convention on Persistent Organic Pollutants

            On December 8, 2008, U.S. EPA announced the process that the U.S. Government would follow for obtaining stakeholder information for chemicals proposed for addition to the Stockholm Convention on Persistent Organic Pollutants. (POPs) (73 Fed. Reg. 74488).  The chemicals currently under review include two industrial chemicals, short chained chlorinated paraffins and hexabromocyclododecane, and a pesticide, endosulfan.  The chemicals are being considered for listing in the Annexes to the Convention at the fourth meeting of the Conference of the Parties (COP 4) in Geneva, Switzerland, May 4 -8, 2009.  The Convention is a global treaty to protect human health and the environment from chemicals that remain intact in the environment for long periods, become widely distributed geographically, and accumulate in the fatty tissue of humans and wildlife.   

           

            Listing is significant because the Convention requires the Parties to reduce or eliminate production and use of POPs listed in Annex A or B.  The Convention also calls upon Parties to take specified measures to reduce releases of POPs listed in Annex C.  Because the United States has signed but not yet ratified the Convention, it participates as an observer.  As such, the United States may provide submissions for review during the listing review process.    The process for listing new chemicals on Annexes A, B, and/or C includes the following five steps:  (1) proposal by any Party to the Convention for listing a new chemical including screening information; (2) application of the screening criteria by the POP review committee; (3) development of a risk profile that includes technical comments and information; (4) development of a risk management evaluation based on technical comments and social-economic considerations; and (5) listing the chemical in Annex A, B and/or C and related control measures. 

 

            While the deadline for information for the risk profile and risk management evaluation for the chemicals under review has passed, stakeholders still have an opportunity to comment on the draft risk profiles and risk management evaluations and other documents.  Draft risk profiles and risk management evaluations are expected to be posted early-to-mid April, and U.S. EPA is requesting that U.S. stakeholders submit comments or information no later than 15 calendar days before the Convention Secretariat’s comment deadline that is expected to be in late May.  Comments and information should address specifics about production, uses, releases, monitoring data, technical feasibility of alternatives, costs, etc.  Additional documents, including the final draft risk profiles and risk management evaluations, will be posted on the Convention’s web site at http://chm.pops.int/ in March or April 2009.  U.S. EPA is requesting comments on those documents no later than 20 days before the May 2009 meeting.       

 

            In the future, U.S. EPA intends to publish a notice in the Federal Register when a chemical is first proposed and will make a good-faith effort to issue e-mail reminders of upcoming due dates to interested parties.  To receive U.S. EPA’s e-mails, chemical and pesticide manufacturers, importers, processors, and other interested parties should send an e-mail with their preferred e-mail address to Amy Breedlove in the Chemical Control Division of U.S. EPA’s Office of Pollution Prevention and Toxics at:  breedlove.amy@epa.gov.  For additional information on U.S. EPA’s process for obtaining stakeholder input on chemicals proposed for listing, contact Gale Lea Rubrecht at 304-340-1200 or galelea@jacksonkelly.com.

 

This article was authored by Gale Lea Rubrecht, Jackson Kelly PLLC. For more information on the author see here.

Solar Power Advances: MIT Research Breakthrough and Duke Energy Initiative

The following two brief articles summarize some interesting recent events related to solar power.  First is an article that focuses on a basic science research breakthrough that could effectively marry the potential of solar power and hydrogen fuel cell power.  Following that is an article that recaps an interesting solar power initiative by Duke Energy Carolinas.

 

MIT’s Solar/Hydrogen Research Breakthrough

 

The Massachusetts Institute of Technology (MIT) announced last summer that it had made a “revolutionary leap that could transform solar power from a marginal, boutique alternative into a mainstream energy source.”  

 

The MIT research did not focus directly upon solar power generation; instead the researchers may have overcome a major barrier to large-scale solar power: storing energy for use when the sun doesn't shine.  This was accomplished in the laboratory by development of a unique catalyst that is used to generate oxygen gas from water.  Note that the search for a cheap, efficient oxygen catalyst has lagged far behind the development of hydrogen catalysts.

 

The generation of hydrogen and oxygen via solar power effectively combines solar energy during the day and hydrogen fuel cell power at night, or during cloudy daylight hours when the sun isn’t shining at a sufficient intensity to generate solar electricity.  Here’s a simplified breakdown of the process as envisioned by MIT:

 

1. Electricity is generated via the normal solar power route -- the sun’s energy strikes solar panels, which generates an electrical current.
2. Part of the solar-generated electricity is diverted to electrodes in a water tank, which then generate oxygen and hydrogen gases.  One of these electrodes is coated with a novel cobalt-phosphate catalyst coating developed by the subject MIT research, which makes possible the generation of oxygen.  Hydrogen gas is produced by the other electrode, with its conventional platinum catalyst coating. 
3. The oxygen and hydrogen are captured, compressed and stored in cylinders for later use. 
4. The oxygen and hydrogen can be recombined inside a fuel cell, creating carbon-free electricity, day or night, rain or shine. 

Note that this same concept could also be coupled with wind power generation, as a means to continue electrical power generation when the wind does not blow.

 

Is this truly a breakthrough?  Yes, absolutely it is, according to MIT’s lead researcher:

 

"This is the nirvana of what we've been talking about for years," said MIT's Daniel Nocera, the Henry Dreyfus Professor of Energy at MIT and senior author of a paper describing the work in the July 31 issue of Science.  "Solar power has always been a limited, far-off solution. Now we can seriously think about solar power as unlimited and soon."

 

For further details on MIT’s solar energy research, see the following web sites:

http://web.mit.edu/newsoffice/2008/oxygen-0731.html

http://www.popularmechanics.com/technology/energy_digital/4276071.html

 

Duke Energy’s Rooftop Solar Initiative

Duke Energy Corporation must satisfy 12.5 percent of its North Carolina customers' power needs with renewable energy or through energy efficiency by 2021.  As part of its effort to achieve that directive, their Duke Energy Carolinas subsidiary has proposed to rent the rooftops of  North Carolina businesses, homeowners and schools for solar power installations, if the plan wins regulatory approval.  The proposal awaits approval from the North Carolina Utilities Commission.

 

Duke Energy Carolinas is proposing to invest $50 million over a two-year period for up to 425 solar energy arrays to be placed on the rooftops of homes, schools, and businesses (or in some cases on the ground) to establish a solar distributed generation program of renewable, carbon-free power.

 

To be eligible, the prospective sites for these solar power installations must:

·        own the home or property,

·        have a roof under consideration that is no more than 5 years old, and

·        the roof or ground-level property cannot be shaded from the sun by trees or other obstructions.

 

Some key aspects of the proposed arrangement are:

• the utility company would install, own, operate and maintain all equipment related to the solar array,
• the utility company would own and use the electricity produced, and
• the home/property owner receives rent paid for using the rooftop or land, and the compensation is based on the size of the solar installation. 

The proposed program is expected to generate eight megawatts of electricity.  Funding for the program would come as a result of increased electricity power rates -- adding an estimated eight cents a month to the average residential bill, 42 cents a month to commercial users and $4.25 a month to industrial customers.

 

For further details on Duke Energy’s rooftop solar power initiative, see the following web sites:

http://www.greenerbuildings.com/news/2008/12/15/duke-rooftop-solar-power

http://www.bizjournals.com/charlotte/stories/2008/12/08/story10.html?b=1228712400^1742649

 

This article was excerpted from publically available information, and was authored by Rick Wilson, Acacia Environmental Group LLC. For more information on the author see here.

 

House Bill 104, Popularly known as the “Stream Saver Bill”

            For the fourth year in a row, Kentucky state representative Don Pasley has filed legislation to prevent mining operators from depositing overburden waste into nearby valleys.  House Bill 104, popularly known as the “Stream Saver Bill”, would require that all overburden be returned to the mine area to the maximum extent possible and that any excess overburden be disposed of in permitted areas or previously mined areas.  The Bill proposes that no overburden be disposed of in an intermittent, perennial, or ephemeral stream or any other water of the Commonwealth.  To the extent that any excess overburden cannot be returned to the mine area or disposed of in a previously disturbed area, the overburden would have to be transported and placed in lifts and concurrently compacted in an engineered, constructed fill.  The Bill would also require that restoration of the approximate original contour of the mine site include both the configuration and elevation of the area prior to disturbance associated with coal removal.

 

“All my bill does is simply call on the coal companies to leave the mountain largely as they found it,” Pasley said on December 18, 2008 shortly before he filed the Bill.  He stated that does not oppose “responsible” coal mining. “It may not be as easy as burying a stream and leveling dozens of square miles in a matter of months, but it is the right thing to do.”

 

Opponents of the Bill respond by pointing out that mountain top removal is the only way to efficiently mine certain seams of coal, some of which are only a foot deep.  They also say that this coal is essential to the state’s economy and energy needs.  Kentucky Coal Association President Bill Caylor has stated that passage of the Stream Saver Bill would drive up the price of coal, cripple production, and lead to widespread unemployment in Eastern Kentucky.  The language of the Bill as written would also place significant restraints on deep mine operators, many of whom also use nearby valleys to dispose of overburden.

 

While many in the coal industry are keeping a close eye on this Bill, most are optimistic that it will not be passed.  The Bill has been assigned to the House Natural Resources and Environment Committee.  Representative Jim Gooch, who chairs the committee, has declined to call the Bill for a hearing in previous sessions of the General Assembly.

 

This optimism from the coal industry has been tempered somewhat by the events of last year.  Through a bit of legislative sleight of hand, the Bill received a hearing last year before the House Appropriations and Revenue Committee. The Bill fell only two votes short of the 15 needed to attach it to a measure to provide tax breaks on camel feed.  Rep. Harry Moberly chaired that committee last year and was friendly to the Bill. Since the recent election of House Speaker Greg Stumbo, Moberly no longer chairs that committee.  However, the current chair, Rep. Rick Rand, has been a co-sponsor of the Stream Saver Bill in the past.

 

This article was co-authored by Kevin McGuire and Mary Beth Naumann, Jackson Kelly PLLC. For more information on the authors see (McGuire) hereand (Naumann) here. 

 

Bill Introduced In House to Apply SMCRA-style Regulatory Program to Ash Impoundments

            U.S. House of Representatives Natural Resources Committee Chairman Nick J. Rahall (D-WV) introduced legislation on January 14, 2009 requiring federal standards to regulate the engineering of coal ash impoundments.

 

            In response to the TVA ash pond failure in Kingston, Tennessee, the Coal Ash Reclamation and Environmental Safety Act of 2009 (H.R. 493) would impose uniform federal design, engineering, and performance standards on coal ash impoundments.  According to the website maintained by the Committee, the legislation, which requires minimum design and stability standards for all surface impoundments constructed to hold coal ash, draws on the regulatory model adopted under the Surface Mining Control and Reclamation Act of 1977 (SMCRA) for coal refuse  impoundments.

 

            SMCRA type requirements that would apply to coal ash impoundments under H.R. 493 cover aspects of design, construction, operation, and closure, including:

 

            •           Regulations detailing the engineering and stability of the embankment

 

            •           Regulations requiring all applications for an impoundment to have a foundation investigation to determine design requirements for stability

 

            •           Each design plan must include a geotechnical investigation of the embankment foundation area

 

            •           Each impoundment plan must include a survey describing the potential effect on the structure from subsidence of the subsurface strata resulting from past mining operations in the area

 

            •           Plans for impoundments must be reviewed by a geologist or an engineer.

 

            •           Regulations requiring that a qualified engineer, with experience in construction of impoundments, inspect each impoundment regularly during construction, upon completion of construction, and periodically thereafter. 

 

This article was authored by Robert G. McLusky, Jackson Kelly PLLC.  For more information on the author see here.

Asbestos Claim Fails for Lack of Disposal/Release Under CERCLA RCRA

            A resourceful developer failed in its attempt to have the prior owner of what is now an industrial park clean-up or pay for the clean-up of asbestos which coated boilers, pipes and joints of the facility’s heating system.  Sycamore Industrial Park Assoc. v. Ericsson, Inc., 546 F.3d 847 (7^th Cir. 2008).

            The defendant Ericsson sold the facility consisting of several buildings to Sycamore Industrial Park Associates in 1985.  By the time of the sale, Ericsson had installed new natural gas heating units throughout the facility.  Before that time, the facility had been heated by a boiler system.  Most of the elements of the system were coated with asbestos.

            The boiler system was never used after sale.  Curiously, Sycamore claimed it did not become aware of the asbestos coating until 2004.  Upon discovery, Sycamore sued Ericsson claiming that by discontinuing use of the boiler system, but not removing it, Ericsson had violated CERCLA and RCRA.  Sycamore lost at the District Court and appealed to the Seventh Circuit Court of Appeals.

            The Circuit Court acknowledged that under CERCLA liability attaches:  (1) if the site is a “facility”; (2) the defendant is a responsible party; (3) there has been a “release” or “threatened release” of a hazardous substance; and (4) the plaintiff has incurred costs in response to the release.

            The Circuit Court found that the first element had been satisfied, but held that the claim failed because Ericsson was not a responsible party.  In order for the prior owner of the facility to be a responsible party, it had to have controlled the site at the time of disposal of the hazardous substance in question.  The Court noted that the parties disputed whether the old boiler system was discarded by Ericsson and was therefore a hazardous or solid waste.  The Circuit Court reasoned that it need not reach this issue because even if the boiler may have been discarded it had not been disposed of since disposal occurs when the waste is placed in or on any land, water or air so that it may enter the environment.  Here, the Court noted that asbestos was located either inside the buildings or in a pipe chase outside the buildings.  The Court held that even if it held that there was a “disposal” there was no “release” since a “release” occurs when the substance enters the environment – land, water or ambient air.

            The Court refused to adopt a per se rule that the sale of a facility with hazardous substances is not disposal.  It noted that if the primary purpose and likely effect of the sale was to remove the asbestos in circumstances that would make release to the outside environment inevitable, the transferor could be liable under CERLA.

            The Court also rejected Sycamore’s RCRA claim.  The Court noted that liability under the RCRA citizen suit statute attaches to a person who has contributed or is contributing to the past or present handling, storage, treatment, transportation or disposal of any solid or hazardous waste which may present an eminent and substantial endangerment to the environment. 

            Sycamore first claimed that Ericsson had disposed of the asbestos-containing boiler system.  Since the RCRA definition of disposal is the same as is applicable under CERCLA, the Court rejected this claim.  In the alternative, Sycamore claimed that Ericsson had handled and stored the asbestos containing boiler system.  The Court noted that there was no evidence that Ericsson, handled, stored or even touched any part of the heating system prior to or after the sale to Sycamore.  The Court held that mere ownership is not sufficient to satisfy the statutory requirement of “has contributed or is contributing”.  The Court held that this language requires affirmative action rather than passive conduct such as leaving a heating system in place.

This article was authored by James R. Snyder, Jackson Kelly PLLC. For more information on the author see here.