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Identifying TSCA Priority Chemicals

Under the Toxic Substances Control Act (TSCA) as well as the Pollution Prevention Act (PPA), (see www.epa.gov/opptintr/existingchemicals/pubs/basicinfo.html) USEPA has statutory authority to address pollution prevention, risk assessment, hazard and exposure assessment and characterization, and risk management for chemical substances in commercial use.  Specifically, TSCA directs EPA to: 

• Maintain the Chemical Substances Inventory, which is a list of existing chemicals in commerce. (Chemicals not already listed on the TSCA Inventory are considered "new chemicals" under TSCA and must go through a review process before they can be added to the Inventory and become "existing chemicals."
• Require testing of chemical substances where necessary to evaluate potential human health or environmental hazards.
• Regulate (including restricting or banning) the manufacture, importation, processing, distribution, use, and/or disposal of any chemical substance that presents an unreasonable risk of injury to human health or the environment.
• Coordinate certain actions on chemical substances under TSCA with actions taken under other federal laws, including those administered by other federal agencies as well as other laws administered by EPA. If risk on a chemical substance is already managed effectively under a different statute, regulation under TSCA generally is not used. 

As outlined by EPA (www.epa.gov/opptintr/existingchemicals/pubs/enhanchems.html), on September 29, 2009, Lisa Jackson, EPA Administrator, announced that EPA is putting in place a comprehensive approach to enhance the Agency’s current chemicals management program under TSCA.  This approach includes the following activities:  

1. New regulatory risk management actions.
2. Development of Chemical Action Plans.
3. Submittal of information.
4. Increased public access to information about chemicals.
5. Identification of Priority Chemicals for review and assessment. 

The purpose of this blog article is to discuss in further detail EPA’s proposed actions with regard to Item 5 above.  On September 7, 2011, EPA hosted a webinar to obtain public input regarding its new approach, a two-step process, to identify priority chemicals for review and assessment under TSCA.  Step 1 would consist of the identification of an initial group of chemicals (estimated to be in the “several hundreds” by EPA during the webinar) based on specific data sources and Chemical Action Plan priority factors, which are: 

• Chemicals identified as potentially of concern for children’s health (e.g., chemicals with reproductive or developmental effects).
• Chemicals identified as persistent, bioaccumulative, and toxic (PBT).
• Chemicals identified as probable or know carcinogens.
• Chemicals used in children’s products.
• Chemicals used in consumer products.
• Chemicals detected in biomonitoring programs. 

EPA states (www.epa.gov/opptintr/existingchemicals/pubs/chempridiscguide.html) that “chemicals meeting one or more of these Action Plan prioritization factors would become part of the initial group of specialty chemicals for review.”  Under Step 1, EPA proposes to use a broad range of domestic and international data sources to identify chemicals for further review.  Some of these data sources include: 

• Integrated Risk Information System (IRIS).
• TRI PBT Rule.
• Great Lakes Binational Toxics Strategy Canadian Categorization.
• Chemicals proposed to UNECE LRTAP POPs and Stockholm Convention on POPs.
• Voluntary Children’s Chemical Evaluation Program.
• California Proposition 65 (Safe Drinking Water and Toxic Enforcement Act of 1986).
• Washington State Children’s Safe Products Act.
• Danish Consumer Products Studies.

 Under Step 2, EPA would refine the group of specialty chemicals identified using a broader range of data sources to further analyze and select specific chemicals for further assessment.  EPA identifies the following types of exposure data source categories that will be used: 

• Uses.
• Environmental releases.
• General human exposures, including indoor air contaminants.
• Worker exposures.
• Environmental exposures.
• National Library of Medicine Databases.
• TSCA Test Submission Database (TSCATS).
• USEPA:
• Office of Pesticide Programs
• Ambient Water Quality Criteria Documents
• Drinking Water Standards Health Effects Support Documents
• ECOTOX database
• IPCS Concise International Chemical Assessment Documents (CICADS) 

As summarized by Lynn L. Bergeson in the November and December 2011 editions of Pollution Engineering (see Legal Outlook, pages 10 and 11 respectively), as commercial and industrial users of existing chemical compounds in the U.S. consider the implications of EPA’s proposed new approach to identifying priority chemicals for review and assessment under TSCA, the following issues should be considered: 

• A potentially large list of chemicals (estimated by EPA to be in the “several hundreds”) will initially be generated for review.
• The process to be used by EPA to select which chemicals will be evaluated is not clear.
• EPA states it will consider “risk-based prioritization factors” in Step 1.  However, how EPA will integrate “risk-based prioritization factors” into the process is also not clear. 

Finally, as with other revisions to TSCA proposed by EPA over the last several years, there could be potentially important impacts on the commercial and industrial use of chemicals in the U.S.   One such impact could ultimately be the development of a “chemicals of concern” list under Step 1, with the potentially adverse impacts associated with the development of such a list by EPA.  Furthermore, under TSCA, it should be noted that EPA has the statutory authority to regulate (including restricting or banning) the manufacture, importation, processing, distribution, use, and/or disposal of any chemical substance that presents an unreasonable risk of injury to human health or the environment.  Therefore, continued monitoring of EPA’s proposed revisions to TSCA is recommended as EPA moves the process forward. 

This article was authored by Greg Tieman, Acacia Environmental Group LLC. For more information on the author see here. 

EPA Announces Final Mercury and Air Toxics Standards for Power Plants

On December 21, 2011, the U.S. Environmental Protection Agency (EPA) announced its final rule requiring power plants to reduce emissions of mercury and other air toxics. The final rule, which EPA is calling the Mercury and Air Toxics Standards (MATS), replaces the Clean Air Mercury Rule that was promulgated by the Bush Administration using a cap-and-trade system predicted to reduce mercury emissions by 70% over thirteen years.  The D.C. Circuit, however, vacated the Bush rule, and the new MATS will require coal-fired power plants to reduce mercury emissions by 90% in four years.  Coal-fired power plants, the coal industry, coal states like West Virginia, and others dispute EPA’s claims that the presumed health and economic benefits of MATS outweigh its costs and have raised concerns over the impact of MATS on the supply of electricity.  Unless successfully challenged, MATS will be the first national air standards on power plant mercury emissions. 

Earlier this year, the American Coalition for Clean Coal Electricity released an initial analysis by National Economic Research Associates (NERA) of the combined impacts of EPA’s Cross-State Air Pollution Rule (CSAPR) that goes into effect in January 2012 and MATS, then known as the Utility Maximum Achievable Control Technology or MACT Rule.  NERA used the government’s own data and found that these two proposals would: increase coal unit retirements by about 48 gigawatts (GW); increase electricity sector costs by $17.8 billion per year; decrease coal-fired generation in 2016 by about 13%; decrease electricity sector coal demand in 2016 by about 10%; increase natural gas-fired generation in 2016 by about 26%; increase natural gas prices in 2016 by about 17% which would increase natural gas expenditures by residential, commercial, and industrial sectors by $8.2 billion per year; increase average U.S. retail electricity prices in 2016 by about 12%, with regional increases as much as about 24% in some areas of the United States that rely on coal for electricity; and reduce net employment in the U.S. by more than 1.4 million job-years over the 2013-2020 period, with sector losses outnumbering sector gains by more than 4 to 1.   The NERA estimates are significantly higher than EPA’s numbers.  For more information on the NERA initial analysis, click here. 

The final MATS rule applies to coal- and oil-fired electric generating units (EGUs) with a capacity of 25 megawatts (MW) or greater.  EPA estimates that there are approximately 1,100 existing coal-fired units and 300 oil fired units for a total of 1,400 affected units at about 600 power plants.  According to EPA, about 60% of coal-fired units already comply with the final standards while 40% lack state-of-the-art controls.  The 40% are older plants and will likely be shut down resulting in a loss of utility worker jobs and tax revenue.  EPA projects retirements of 4.7 GW out of more than 1,000 GW that make up the nation’s electric generating capacity or less than one half of one percent of the nation’s generating capacity.    

The final rule sets standards for all hazardous air pollutants (HAPs) emitted by coal- and oil-fired EGUs with a capacity of 25 megawatts or greater.  Under the final rule, affected power plants must reduce emissions of mercury and other heavy metals, including arsenic, chromium, and nickel, and acid gases, including hydrochloric acid and hydrofluoric acid.  In addition to reducing emissions of mercury and other air toxics, the final rule will reduce emissions of sulfur dioxide 41% beyond the reductions expected from CSAPR and fine particulate matter that is directly emitted from power plant stacks.  

The final rule will take effect 60 days after publication in the Federal Register.  EPA states in a Fact Sheet on its website that the final rule will be published in January or early February 2012.  See Fact Sheet: Clean Air and Reliable Electricity.  However, it has been reported that during a stakeholder call conducted on December 21, 2011, Assistant Administrator for the Office of Air and Radiation Gina McCarthy informed participants that EPA anticipates the rule will be published in the Federal Register in late February or early March 2012.  

Existing sources will then generally have up to four years or until early 2016, if they need it, to comply with MATS.  This includes the standard three years provided to all sources by the Clean Air Act, and an additional fourth year that EPA is “encouraging permitting authorities to make…broadly available for technology installations.”  If more time is needed, EPA has issued an enforcement policy document that provides a pathway for units critical to reliability to obtain, on a case-by-case basis, a schedule with up to an additional fifth year to achieve compliance. Further, EPA states that if there are still “other situations where sources cannot come into compliance on a timely basis,…EPA will address individual noncompliance circumstances (if there are any) on a case-by-case basis, at the appropriate time, to determine the appropriate response and resolution.”  See Fact Sheet:  Benefits and Costs of Cleaning Up Toxic Air Pollution from Power Plants and Fact Sheet:  Mercury and Air Toxics for Power Plants.  

For coal-fired EGUs, both new and existing, the rule establishes numerical emission limits for mercury, PM (a surrogate for toxic non-mercury metals), and HCl (a surrogate for all toxic acid gases).  MATS also sets numerical emission limits for oil-fired EGUs.  The standards set work practices, instead of numerical limits, to limit emissions of organic air toxics, including dioxin/furan, from existing and new coal- and oil-fired power plants.  The work practice standards require an annual performance test program for each unit that includes inspection, adjustment, and/or maintenance and repairs to ensure optimal combustion.  When fully implemented, EPA projects MATS will reduce emissions of mercury from coal-fired power plants by 90% and emissions of acid gases from power plants by 88%.  

EPA expects power plants will comply with MATS through a range of strategies including the use of existing emission controls, upgrades to existing emission controls, installation of new pollution controls, and fuel switching.  EPA emphasizes that the final standards are based on “existing, commercially proven technologies” that are “widely available” and “frequently used” in the electric utility industry, including electrostatic precipitators, fabric filters (baghouses), flue gas desulfurization (scrubbers), or dry sorbent injection.  To install and maintain these controls, EPA estimates that MATS will create 46,000 short-term construction jobs and 8,000 long-term utility jobs.  According to EPA, the total national annual cost of the final rule will be $9.6 billion, which is about a billion dollars less than the proposed standards.       

EPA estimates that when fully implements in 2016 MATS will prevent 4,200 to 11,000 premature deaths, 2,800 cases of chronic bronchitis, 4,700 heart attacks, 130,000 asthma attacks, 5,700 hospital and emergency room visits, 6,300 cases of acute bronchitis, 140,000 cases of respiratory symptoms, 3.2 million restricted activity days, and 540,000 missed work or “sick” days per year.  EPA estimates the health benefits associated with meeting the standards for air toxics are $37 billion to $90 billion in 2016 (2007$).     

As for electricity rates, EPA projects they stay within normal historical fluctuations. EPA states its modeling indicates that MATS will result in relatively small changes in the average retail price of electricity (approximately 3 percent).  EPA concludes that the increased demand for natural gas will keep electricity prices below 1990 levels. 

 For EPA’s Fact Sheets that accompanied MATS, see (1) Fact Sheet:  Benefits and Costs of Cleaning Up Toxic Air Pollution from Power Plants; (2) Fact Sheet:  Mercury and Air Toxics for Power Plants; (3) Fact Sheet: Clean Air and Reliable Electricity; and (4) Fact Sheet: Adjustments from Proposal to Final.                                                                                                                             

For a discussion of EPA’s proposed rule, known as the Utility Maximum Achievable Control Technology or MACT rule, see articles titled “EPA Proposes 91% National Reduction for Mercury As Well As Reductions of Other Toxics from Power Plants And Claims That Program Will Reduce Future Cost Of Power,” and “EPA Proposed Emission Standards for Hazardous Air Pollutants from Fossil Fuel-Fired Power Plants,” posted on March 16, 2011, and May 16, 2011, respectively, on the Jackson Kelly PLLC Energy & Environment Monitor. 

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

WV EQB Lifts Conductivity Stay But Probably Provides No Real Help To Mine Operators

The West Virginia Environmental Quality Board (“EQB” or “Board”) has lifted a stay it earlier imposed on the use of an NPDES permit for a surface mine.  It is unlikely, though, that the Board’s order will have any immediate effect or will avert potential layoffs. 

The stay, issued in the fall of 2010, prohibited the use of a new NPDES permit issued to Patriot Mining which did not impose effluent limits on conductivity, total dissolved solids (“TDS”) or sulfate.  The Sierra Club had argued in 2010 that absent limits on these parameters, discharges from the mine would cause violations of the State “narrative” water quality standards.  The EQB granted a stay pending resolution of the appeal.  

West Virginia’s narrative water quality standards prohibit certain in-stream conditions.  The standards are set out at WVCSR §47-2-3.2.e & 3.2.i and provide that: 

3.2.e.   Materials in concentrations which are harmful, hazardous, or toxic to man, animal or aquatic life; 

3.2.i.    Any other condition, including radiological exposure, which adversely alters the integrity of the waters of the State including wetlands; no significant adverse impact to the chemical, physical, hydrologic, or biological components of aquatic ecosystems shall be allowed. 

Historically, the West Virginia Department of Environmental Protection (“WVDEP”)  has used a biologic index known as the West Virginia Stream Condition Index (“WVSCI”) as the primary tool for determining whether waterbodies met the narrative standards.  The WVSCI is used to compare the numbers, types and proportions of so-called pollution-intolerant aquatic insects (measured at the “family” level) in undisturbed “reference” streams with the populations in disturbed streams.  At some point, a difference in scores between a disturbed site and a reference site is considered sufficient to find that a disturbed stream is “impaired” or not meeting the narrative standard.  

WVDEP does not have numeric criteria for conductivity, TDS or sulfate.  It has also evaluated the correlation between each parameter and WVSCI scores and determined that there is a poor correlation between them.  Because of that, WVDEP does not believe it can adopt a reasonable numeric standard on these parameters which would not be greatly over- or under-protective of WVSCI scores. 

The Sierra Club, however, claimed in the appeal that when insect populations are evaluated at the “genus” level, rather than the “family” level used in the WVSCI, there are clearer correlations between the insect populations found and the levels of conductivity, TDS and sulfate.  It contended that significant impacts to those populations occur at conductivity = 300 μS/cm, and sulfate = 50 mg/l, and argued that these levels should serve as in-stream aquatic life criteria used to impose effluent limits.  Without significant dilution or expensive treatment, such as reverse osmosis, however, these standards are generally considered unachievable by most surface mines.  The Sierra Club’sexperts suggested that there was not necessarily a causal link between conductivity and TDS on the one hand and insect impacts on the other, but that unspecified individual ions comprising the conductivity and TDS were likely culprits.  Its experts also suggested that the WVSCI was not as precise a test as a genus-level insect index and should, therefore, not be used.  

The EQB generally agreed and in March 2011 issued an order requiring that WVDEP impose effluent limits on each of the three parameters.  Significantly, however, it did not determine or suggest that the threshold numbers advocated by the Sierra Club were appropriate.  The EQB also ruled that WVDEP was obligated to impose limits on manganese and selenium, and to do a further analysis whether arsenic limits were necessary. 

WVDEP and Patriot Mining appealed the order with respect to conductivity/TDS/sulfate.  In an order dated September 20, 2011, the Circuit Court of Kanawha County ruled that the EQB had not adequately explained the legal bases for its order; that WVDEP was entitled to deference in its interpretation of the narrative standards; and that the Board had failed to discuss the role of the WVSCI in measuring compliance with the narrative standard.  The Court remanded the matter to the EQB. 

On remand, Patriot Mining moved to dissolve the stay, arguing that there was no summarizing requirement to impose limits on conductivity/TDS and sulfate; that the Sierra Club was unlikely to prevail on remand; and that Patriot and its employees would suffer real harm while there would be little impact to the receiving stream, which already had high levels of the three parameters which would not increase appreciably with the new mine.  By order of November 10, 2011, the EQB dissolved the stay, but its order did little to provide real help to Patriot. 

The Board’s dissolution order determined that on the balance of equities the stay should be dissolved because there was little evidence that the mine would contribute to any substantial impact on the insect population or to the levels of the three parameters in the receiving stream.  However, the Board also stated that the Sierra Club was likely to prevail on the merits on remand—a fact which suggests that it may again require WVDEP to impose effluent limits on conductivity/TDS/sulfate that cannot be obtained without techniques so expensive as to destroy the economics of the operation. 

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

EPA Issues Guidance on Non-Affiliation Requirement for CERCLA Landowner Defenses

EPA has issued new guidance addressing the non-affiliation requirement for the landowner liability protections available under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) for bona fide prospective purchasers (BFPPs) and contiguous property owners (CPOs).  The statute provides that landowners seeking to avoid CERCLA liability cannot be “affiliated with” another party who is potentially liable under CERCLA.  The new guidance, titled “Enforcement Discretion Guidance regarding the Affiliation Language of CERCLA’s Bona Fide Prospective Purchase and Contiguous Property Owner Liability Protections,” addresses the “affiliated with” language of CERCLA and complements EPA’s previously issued Tenants Guidance.  The new guidance should be of interest to owners of contaminated property and entities interested in buying and developing brownfields as well as neighboring landowners. 

The new guidance discusses prohibited affiliations identified in CERCLA, the burden of proof, initial considerations in determining whether a disqualifying affiliation exists, two statutory exceptions, and four additional relationships that generally should not be considered to be disqualifying affiliations.  EPA emphasizes that the analysis is fact-intensive   Affiliation Guidance at 2. The crux of the analysis is whether the relationship was created to avoid CERCLA liability.  Id. at 7.  If so, the affiliation will disqualify a purchaser of property or owner from BFPP or CPO liability protection. 

Affiliations expressly prohibited by CERCLA include:  (1) direct or indirect familial relationships; (2) contractual, corporate, or financial relationships; and (3) business reorganizations of a business entity that was potentially liable.  Id. at 2-3.  The entity seeking the liability protection has the burden of proof to establish the non-affiliation requirement and all of the other elements of the BFPP or CPO defense.  Under CERCLA, CPOs may request from EPA a “no action assurance letter” or settlement that provides protection against cost recovery or contribution.  BFPPs may seek comfort/status letters, BFPP-doing-work-agreements, or prospective purchaser agreements in limited circumstances.  Id. at 3.  

The new guidance directs EPA personnel to consider following four issues before exploring whether there is a prohibited affiliation: (1) whether the person seeking liability protection under the BFPP or CPO provisions is otherwise a potentially responsible party (PRP) i.e., an owner/operator at the time of disposal, a transporter, or an arranger for the disposal of hazardous substances; (2) whether the entity is in fact the same entity as a PRP or is potentially liable under other principles of corporate law, such as successor liability; (3) whether a business entity asserting BFPP or CPO status is the result of a reorganization of a liable party through bankruptcy or other corporate restructuring.; and (4) whether the party with whom a person may have an affiliation is actually a PRP at the facility.   Id. at 4-5. 

Next, the new guidance discusses the two statutory exceptions to contractual, corporate, and financial relationships that do not disqualify a purchaser of property or owner from BFPP or CPO liability protection.  The first statutory exception applies only to BFPPs and is for contractual, corporate, or financial relationships that are “created by the instruments by which title to the facility is conveyed or financed.”  Deeds, title insurance, agreements with a third-party lender, or other agreement that makes transfer of title possible would fall within this exception.   Id. at 6.  The second statutory exception applies to bothBFPPs and CPOs and is for contractual, corporate, or financial relationships that are “created by a contract for the sale of goods or services.”  EPA states that it will adopt a plain language definition of goods and services and gives a contract for snow removal as an example of a contract for a service that would not be considered to be a disqualifying affiliation.  Id. at 6-7. 

Additionally, EPA examines “special considerations” in applying the non-affiliation requirement and identifies the following four relationships that “it generally intends not to treat as disqualifying affiliations”:  (1) relationships at other properties: (2) post-acquisition relationships; (3) documents that typically accompany title transfer; and (4) tenants seeking to purchase property they lease.  Id. at 7.  

Relationships at Other Properties: EPA intends to focus on only those affiliations that may be related to the contaminated property or the source property.  For example, if the buyer and seller have existing lease agreements at other properties unrelated to the contaminated property, EPA will likely treat the buyer as if it were a BFPP so long as the buyer has complied with all of the other BFPP requirements.  Id. at 8-9. 

Post-Acquisition Relationships:  A BFPP or a CPO that enters into a familial, contractual, corporate, or financial relationship with a PRP after the acquisition of the property will generally not be considered to have a disqualifying affiliation with the PRP.  For example, if a buyer acquires a contaminated industrial park from a seller who was an owner during the time of the disposal at the industrial park and the seller later leases a warehouse within the industrial park to the buyer, EPA will generally treat the buyer as a BFPP.  Id. at 9.   

Documents that Typically Accompany Title Transfer:  Generally, EPA does not intend to treat indemnification, insurance, and other agreements that are typically created as part of the transfer of title as disqualifying affiliations.  Id. at 9.  EPA clarifies that it means indemnification agreements that allocate responsibility for cleanup costs between a purchaser and seller and do not relieve a party of its CERCLA liability.  The guidance in a footnote distinguishes the indemnification agreement that was at issue in the Ashley II decision.  Ashley II of Charleston, LLC v. PCS Nitrogen, Inc., 746 F. Supp. 692 (D.S.C. 2010), motion to certify appeal granted, 2011 WL 5827786 (D.S.C. Nov. 17, 2011).  See article titled “Bona Fide Prospective Purchaser Requirements Interpreted by Federal District Court,” posted on the Jackson Kelly PLLC Energy and Environment Monitor on December 29, 2010.  EPA describes the agreement in Ashley II as a “liability release agreement” and emphasizes that the purchaser failed to satisfy the “no affiliation” requirement due to a release agreement, in which the purchaser agreed to release the seller as to environmental liability at the site…, and the purchaser’s subsequent efforts to dissuade EPA from taking an enforcement action against the seller.”  Id. at 9 n. 17.  

Tenants Seeking to Purchase Property They Lease:  The non-affiliation analysis in the case of a lease involves examining the potential liability of both the tenant and the landlord.  If neither the tenant/purchaser nor the landlord is liable as a PRP, then the lease would not be a prohibited affiliation.  If the tenant/purchaser is a PRP, then the tenant/purchaser cannot qualify as a BFPP or CPO.  If the landlord is a PRP, then an analysis of the site-specific facts will be required.  EPA recommends that before purchasing the property, the tenant contact the appropriate EPA Regional office to resolve the tenant’s liability concerns.  The Affiliation Guidance does not change EPA’s previously issued Tenants Guidance.  Id. at 10.         

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

Bird Group Seeks Rulemaking For Wind Turbines

The American Bird Conservancy submitted a petition for rulemaking to the U.S. Fish and Wildlife Service (“USF&WS”) asking for the adoption of rules for wind turbines to protect migratory birds - both for siting new facilities and operating existing ones.  The proposed rule, which cites the Endangered Species Act and the Migratory Bird Treaty Act as its primary legal bases, would require a permit from the USF&WS to construct or operate wind turbines.  The permit criteria would require that before issuing a permit, the USF&WS must find that: 

(a)        the effects of the anticipated take and required mitigation, together with cumulative effects of other activities and additional factors affecting the bird populations and habitats impacted by the project, are compatible with the maintenance and conservation of bird populations, particularly populations of birds designated by FWS as Birds of Conservation Concern and bird species that are candidates for listing under the ESA; 

(b)        the permit applicant will conduct appropriate, adequate pre-construction and post-construction monitoring; 

(c)        the permit applicant will to the maximum extent practicable avoid, minimize, and mitigate adverse effects on migratory birds and important migratory bird habitats; 

(c)        the permit applicant will conduct such monitoring and adaptive management as the Service determines is necessary to fully and effectively evaluate the impact of the project, including the efficacy of minimization and mitigation measures, on migratory birds and migratory bird habitat, and to evaluate whether changes need to be made in the project’s operation in order to better minimize and mitigate the impact on migratory birds; and 

(d)       there are no practicable alternatives to the project as proposed that would entail less adverse impact on migratory birds. 

Existing facilities would have to obtain permits as well, but would have 120 days from adoption of the rules to submit a complete application.  They would also be exempt from the provision requiring that practicable alternatives be evaluated. 

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

Climate Change Headlines:

12/14/2011: Carbon dioxide has zero effect on global warming'

RT

http://rt.com/news/carbon-canada-effect-kyoto-773/

 

12/14/2011: Cooling down global warming

Financial Post

http://business.financialpost.com/2011/12/14/cooling-down-global-warming/

 

12/14/2011: Global warming phantom menace, Kyoto costs & hurts a lot'

RT

http://www.youtube.com/watch?v=ogWYFT-b89M

 

12/15/2011: Climate Corruption 101

Family Security Matters

http://www.familysecuritymatters.org/publications/id.11032/pub_detail.asp

 

12/15/2011: Don't cry for Kyoto

Ottawa Citizen

http://www.ottawacitizen.com/news/canada-in-afghanistan/Kyoto/5862739/story.html

 

12/16/2011: Climategate Row Erupts Again As New Emails Leak

TechWeekEurope UK

http://www.techweekeurope.co.uk/news/climategate-row-erupts-again-as-new-emails-leaked-46993

 

12/16/2011: Kyoto accord was never about the environment

Calgary Herald

http://www.calgaryherald.com/business/Kyoto+accord+never+about+environment/5870107/story.html

 

12/17/2011: Virginia residents oppose preparations for climate-related sea-level rise

Washington Post

http://www.washingtonpost.com/national/health-science/virginia-residents-oppose-preparations-for-climate-related-sea-level-rise/2011/12/05/gIQAVRw40O_story.html

 

12/17/2011: Global-warming skeptics in tidal Virginia

Washington Post

http://www.washingtonpost.com/national/health-science/global-warming-skeptics-in-tidal-virginia/2011/12/17/gIQAo3W10O_graphic.html

 

12/20/2011: Goal of climate summit was transfer of wealth

Asbury Park Press

http://www.app.com/article/20111218/NJOPINION02/312180019/Goal-of-climate-summit-was-transfer-of-wealth

WV Wind Facility Combines Energy Generation and Storage: AES Laurel Mountain Facility Largest of its Kind

AES Wind Generation and AES Energy Storage recently announced the commercial operation of AES Laurel Mountain, a wind generation plant comprised of 98 MW of wind generation and 32 MW of integrated battery-based energy storage. The facility is located near Elkins, West Virginia. The project is supplying emissions-free renewable energy and clean, flexible, operating reserve capacity to the PJM Interconnection, the largest power market in the world. 

“Energy storage technology is the silver bullet that helps resolve the variability in power demand,” said Terry Boston, PJM president and CEO. “Combining wind and solar with storage provides the greatest benefit to grid operations and has the potential to achieve the greatest economic value.” 

The 32 MW advanced storage project is the largest of its kind. Leveraging advanced battery technology, the storage service provided by AES Energy Storage will help optimize the renewable energy generated. The project provides PJM with regulation service, delivering instantaneous response to grid operator requests for power, helping to match generation and demand. The storage also allows the wind facility to control the ramp rate of its generation, smoothing out fluctuations in minute to minute output. AES Laurel Mountain is among the first wind generators to supply critical operating reserve capacity to help maintain the reliability of the power grid. 

“The Laurel Mountain project is a unique application of wind and battery storage technology combining clean energy production with state of the art grid support services,” said Phil Herrington, President of Global Wind Generation for AES. “We are very excited to be a part of this project, and couldn’t have completed this milestone without the overwhelming public support from the local community.” 

AES Laurel Mountain consists of 61 GE 1.6 MW wind turbine generators capable of a combined power generation of 97.6 MW and 32 MW of A123 Systems energy storage devices. The 61 wind turbines are mounted on 80-meter towers deployed along a 13-mile stretch of Laurel Mountain located in Randolph and Barbour counties near Elkins, West Virginia. The facility will supply more than 260,000 MWh of emissions-free, renewable energy each year to the PJM Interconnection. 

“We delivered this solution with our wind generation business to serve the reliability needs of the PJM power market and its utility members,” said Chris Shelton, President of AES Energy Storage. “The Laurel Mountain storage facility is more than double the size of our previous projects, demonstrating our ability to scale up this advanced power resource. We look forward to serving PJM and to bringing similar emissions free capacity services directly to utility companies seeking clean capacity resources – with no direct emissions and no water usage requirements.” 

AES Wind Generation is a wholly owned subsidiary of the AES Corporation. Formed in 2005, AES Wind Generation has 1,900 MW in operation globally, of which nearly 1,400 MW are located throughout the U.S. The Laurel Mountain project is AES Wind Generation’s second wind facility serving the PJM market, following the successful completion of AES Armenia Mountain located in Pennsylvania. 

AES Energy Storage, a subsidiary of the AES Corporation, is the owner-operator of advanced storage projects that provide emissions-free capacity to improve the performance and reliability of today’s power grid. Emissions-free capacity is a fast and flexible power system resource, combining patented software, dynamic power control and storage technology. 

The AES Corporation is a Fortune 200 global power company, providing energy to 28 countries through a diverse portfolio of distribution businesses as well as thermal and renewable generation facilities. 

For further details onAES and its Laurel Mountain wind power generation and storage facility, see the following: 

http://www.businesswire.com/news/home/20111027006259/en/AES-Wind-Generation-AES-Energy-Storage-Announce 

http://www.scientificamerican.com/article.cfm?id=worlds-largest-wind-power-storage-system-charges-ahead 

http://www.forbes.com/sites/uciliawang/2011/10/27/worlds-largest-lithium-ion-battery-farm/ 

http://www.aes.com/ 

http://www.aesenergystorage.com/ 

This article was partially excerpted from publically available information, and was authored by Rick Wilson, Acacia Environmental Group LLC.  Any opinions expressed in this article are those solely of the author, and are not intended as legal or professional guidance to any specific readers.  For more information on the author see here.

Judge Allows Citizen Suits to Proceed in Federal Court Despite Parallel Enforcement Actions in State Court

On December 7, 2011, Judge Robert Chambers denied Defendants’ Motion to Dismiss and ruled that Clean Water Act (“CWA”) citizen suits against three subsidiaries of Patriot Coal Corporation (Apogee Coal Company, LLC, Catenary Coal Company, LLC, and Hobet Mining, LLC) could proceed in spite of ongoing enforcement actions by the West Virginia Department of Environmental Protection (“DEP”).  See OVEC v. Patriot Coal, Case 3:11-cv-00115.   Pursuant to the CWA, a citizen suit is precluded where the “State has commenced and is diligently prosecuting a civil or criminal action in a court of the United States, or a State to require compliance with the standard, limitation, or order [that the citizen alleges to have been violated].” 33 U.S.C. § 1365(b)(1)(B).  Although Judge Chambers found that DEP had commenced an action in West Virginia state court at the time the citizen suits were filed, he found that they lacked diligence. 

In addressing the actions against Catenary and Apogee, the Court referenced its decision from September of this year in Ohio Valley Envtl. Coal., Inc. v. Maple Coal Co., 2011 WL 3874576 (S.D.W. Va. 2011).  In Maple, the Court examined enforcement actions DEP brought against Maple Coal in Fayette County Circuit Court.  There, the Court noted that DEP would have granted Maple’s request to extend its selenium compliance deadline had EPA not objected to the modification.  Id. at 23.  According to the Court, DEP’s options to diligently prosecute an enforcement action against Maple consisted of either, (1) agreeing with EPA, acting as though the EQB stays had never been granted, and seeking to enforce the selenium limits from April 5, 2010 when they were scheduled to go into effect; or (2) disagreeing with EPA and requesting relief from the Fayette County court akin to that which DEP had initially planned to grant.  The Court characterized DEP’s enforcement action as failing to pursue either of these avenues.  Rather, according to the Court, DEP filed a vague complaint that sought neither to enforce the permit as is, inclusive of the selenium limits, nor to enforce the draft permit modification, with a compliance deadline of July 2012.  

In Patriot, the Court viewed DEP’s enforcement actions in Boone and Logan County against Catenary and Apogee in the same way: 

As in Maple, neither enforcement action appears to seek any enforcement whatsoever with regard selenium. Instead, as in Maple, both actions seek vague relief from the Logan and Boone County Circuit Courts that specifically excludes selenium from the request for immediate relief on the grounds that the selenium limitations are subject to the stay orders of the EQB and the Kanawha County Circuit Court. By acquiescing in the Stay Orders, excluding selenium from their claims for civil penalties on the basis of those Orders, and seeking in State Courts the delays already rejected by the Environmental Protection Agency, the WVDEP is not diligently prosecuting Defendants’ selenium violations. Based on their context, timing, and the relief sought, Court FINDS that these actions, like the one at issue in Maple, are not diligent prosecutions. 

OVEC v. Patriot, p. 12. 

Next, the Court addressed DEP’s Boone County enforcement action against Hobet for four NPDES permits at its mine in Boone County.  The Court had previously addressed the diligent prosecution issue as to the same four Hobet permits in  OVEC v. Hobet Mining, LLC, 3:08-cv-0088, 2008 WL 5377799 (“Hobet I”).  In Hobet I, although the Court found that the DEP’s prosecution was not diligent at the time the citizen suit was filed, it found that the September 5, 2008 consent decree entered by the Boone County Circuit Court mooted the citizen suit in federal court.  Id., at 4-5.  That consent decree, however, was modified by the parties in December 2009.  The Court addressed the impact of the modified consent decree on a separate NPDES permit in Ohio Valley Envtl Coalition v. Hobet Mining, LLC, 723 F. Supp. 2d 886 (S.D. W.Va. 2010) (“Hobet II”).  In Hobet II, the Court found that the amended consent decree was more lenient than the original and was, therefore, not a diligent prosecution.  Id., at 906-913.  In re-examining the modified consent decree in light of the four permits originally at issue in Hobet I and currently at issue in Patriot, the Court again found that the “regulatory climate for violations of selenium limitations is defined by continued extensions and enforcement actions that, rather than enforcing selenium limits, seek to accomplish in state courts the delays already rejected by the Environmental Protection Agency.”  Consequently, the Court ruled that DEP’s ongoing enforcement action against Hobet was not diligent. 

The decision in Patriot is yet another in a line of recent opinions demonstrating a willingness of West Virginia’s federal district courts to ignore DEP State Court enforcement actions in favor of allowing environmental groups to bring CWA citizen suits in federal court.  Any company entering into a consent decree with the State, who also has potential exposure to a citizen suit in federal court, should be aware of this trend. 

This article was authored by Chris M. Hunter, Jackson Kelly PLLC. For more information on the author see here.

Climate Change Headlines:

12/07/2011: Rise of the climate change sceptics: More than a third of people now think …

Daily Mail

http://www.dailymail.co.uk/news/article-2071053/Growth-climate-change-sceptics-37-think-claims-exaggerated.html

 

12/07/2011: How IPCC Reports Mislead the Public, Exaggerate the Negative Impacts of Climate Change and Ignore the Benefits of Economic Growth

PR Newswire (press release)

http://www.prnewswire.com/news-releases/how-ipcc-reports-mislead-the-public-exaggerate-the-negative-impacts-of-climate-change-and-ignore-the-benefits-of-economic-growth-135189913.html

 

12/07/2011: Climate change: A reasoned skeptic’s response

The Jewish Journal of Greater L.A.

http://www.jewishjournal.com/dennis_prager/article/a_reasoned_skeptics_response_20111207/

 

12/08/2011: Why are climate change sceptics rising in number?

Daily Mail

http://www.dailymail.co.uk/debate/newsdebate/r/t-10240139/index.html

 

12/08/2011: Klaus pens foreword to Australian climate change denier’s book for highschoolers

Czech Position

http://www.ceskapozice.cz/en/news/politics-policy/klaus-pens-foreword-australian-climate-change-denier%E2%80%99s-book-highschoolers

 

12/09/2011: Climategate 2.0: time to audit Big Global Warming

Merritt News

http://www.merrittnews.net/article/20111208/MERRITT0302/111209811/-1/MERRITT/climategate-20-time-to-audit-big-global-warming

 

12/10/2011: Don't pretend we know what causes climate change

London Free Press

http://www.lfpress.com/news/world/2011/12/09/19102236.html

 

12/12/2011: Climate change gravy train rolls on

Herald Sun

http://www.heraldsun.com.au/business/terry-mccranns-column/the-great-climate-change-gravy-train-rolls-on/story-e6frfig6-1226220297162

 

12/12/2011: Howard lends support to anti-climate change book

ABC Online

http://www.abc.net.au/news/2011-12-13/howard-lends-support-to-anti-climate-change-book/3727650/?site=sydney

 

12/13/2011: Study history of Earth's climate beyond 19th century

Plain Dealer (blog)

http://blog.cleveland.com/letters/2011/12/study_history_of_earths_climat.html

OSM Sued Over Ten Day Notice Policy

Farrell-Cooper Mining Company, a small mining company in Oklahoma, has sued the U.S. Office of Surface Mining (“OSM”) challenging the issuance of two 10-day notices (“TDN”) to the state involving two of Farrell-Cooper’s state-issued coal mining permits.  TDNs are the mechanism by which OSM can initiate oversight over conditions existing on sites permitted by states with OSM-approved programs under the Surface Mining Control and Reclamation Act (“SMCRA”).  

SMCRA allows OSM to take direct enforcement action against mine operators in primacy states for violations of performance standards or permit conditions, but only after a state fails to respond “appropriately” to a TDN advising it that OSM believes a violation exists.  See 30 U.S.C. §1271(c).  In the event a state does not respond appropriately (by taking enforcement action or explaining why no violation exists), the OSM “shall” inspect “the . . . mining operation at which the alleged violation is occurring. . . .”  30 U.S.C. §1271(a)(1).  If, as a result of the inspection, OSM finds a violation, it shall issue either a cessation order (if there is imminent harm) or a notice of violation (“NOV”) “to the permittee” fixing a time for abatement of the violation.  30 U.S.C. §1271(a)(2) & (3).  Historically, because the statute speaks to “inspections” of “mining operations” and issuance of NOVs “to the permittees,” OSM has generally limited the application of this section of the statute to “on the ground” violations of performance standards.  It generally has not used this authority to oversee individual state permit decisions.  In fact, when an OSM field office attempted to use its TDN authority to review a state permit decision in West Virginia, former Assistant Interior Secretary Rebecca Watson intervened and informed complaining citizens that OSM did not possess the authority to veto state permit decisions. 

In June 2009, however, the Interior Department signed a memorandum of understanding with USEPA and the Corps of Engineers which committed OSM to determine how it could “more effectively conduct oversight of state permitting . . . activities” under SMCRA—polite language for requiring OSM to rescind the Watson letter.  By memo of November 15, 2010, OSM Director Pizarchik rejected the rationale of the Watson letter and advised his staff that OSM would henceforth use its TDN oversight authority with respect to “alleged violations of permitting requirements” in addition to violations of performance standards.  That memo was subsequently embodied in a draft policy document. 

The Farrell-Cooper situation involves a dispute over approximate original contour (“AOC”), where the state-issued permits allowed the company to create last cut lakes at two of its mines.  According to the complaint, OSM and the state of Oklahoma formed a team to investigate the legislative history of AOC, and the team issued a report in 1997 approving such techniques.  However, in 2010, OSM issued a draft oversight report on AOC and found that the state had not properly implemented its approved program by failing to require mines to be reclaimed to AOC.  

In January 2011, OSM issued two TDNs to Oklahoma attacking the Farrell-Cooper permits and reclamation plans for its mines.  Farrell-Cooper has since received a notice of violation (“NOV”) from OSM.  The complaint will almost certainly be met with the standard governmental defenses that : 1) a TDN is not a final agency action; 2) the operator must exhaust its administrative remedies in appealing the NOVs; and 3) that this is not an attack on the permit, but rather of a failure to meet on-the-ground performance standards. 

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