Law and the Environment : Environmental Lawyer & Attorney : Foley Hoag Law Firm : Boston, Washington D.C.

Market-watchers thinking that having friends in Congress means that coal can flourish despite EPA regulation on many fronts may have a different view to ponder. Goldman Sachs predicted last week that generators will continue to switch from coal to natural gas and downgraded the prospects of the coal industry from “attractive” to “neutral.” Specifically, Goldman predicted that 51 GW of coal electric generating capacity are on their way out and that EPA Cross State Air Pollution Rule, or CSAPR, and utility MACT rule would together eliminate 160 million tons of coal production through 2018. Political winds may shift direction periodically, but cold-blooded economic analysis says that the outlook for coal is not great in the long run.

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Two seemingly unrelated stories from last week suggest that EPA may have its limits in how far it is going to go to make nice with those who are opposing its regulatory agenda. The first story, reported by Greenwire, is pretty much all in the headline: “EPA official accuses Kan. department of lying over proposed plant.” The second story, also from GreenWire, reported that EPA Administrator Lisa Jackson referred to opponents of EPA’s greenhouse gas tailoring rule as “jack-booted thugs.”  She has also described Republican efforts to limit EPA regulatory authority as a “too dirty to fail” policy.

It’s difficult to interpret at least Administrator Jackson’s remarks as anything other than part of the 2012 Presidential campaign. I realize that I may be hopelessly optimistic in asking that even campaign rhetoric make sense, but these comments don’t make sense. How is it that opponents of the tailoring rule – and I actually support the rule, though I’m not sure about EPA’s authority to promulgate it – are “jack-booted thugs”? They may have misrepresented the scope of the rule, but that hardly makes them thugs, let alone jack-booted ones.

And too dirty to fail? I don’t even know where to begin. Let’s start and end with the simple point that it is not precisely because these plants are dirty that we refuse to regulate them – which is the only way the analogy to “too big to fail” could possibly make sense. This is nothing more than trying to make polluters look bad by comparing them to banks. I do feel compelled to observe that we are in a funny place when banks have a worse reputation than polluters and we have to stir up populist anger at the polluters by comparing them to the big, bad, banks.

In any case, calling your opponents liars and thugs, and describing their political strategy as supporting polluters because they are "too dirty to fail” is not going to engender a spirit of compromise. I understand EPA’s frustration with its congressional opponents. Again, I must emphasize that I support not just the tailoring rule, but may of EPA’s regulatory initiatives. I also note that EPA has taken steps – rarely noted or appreciated – to respond to the concerns of opponents. Nonetheless, aside from providing red meat to the base, this is hardly constructive. After all, it’s not as though anyone expects the Democrats to win such overwhelming majorities in the House and Senate that Lisa Jackson won’t have to deal with congressional Republicans after January 2013. Good luck with those jack-booted thugs.

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While EPA remains under attack by the GOP-majority House, that doesn’t mean that coal is off the hook. To the contrary, coal remains under attack itself. A number of recent stories demonstrate the multi-pronged effort by those who want to reduce or eliminate use of coal. For example, the Environmental Integrity Project and two Texas-based NGOs just filed suit against the Lower Colorado River Authority's Fayette Power Project, alleging violations of NSR/PSD requirements and exceedances of particulate limits in the plant’s permit. There is no doubt that there is a concerted effort by NGOs to make life difficult for coal. Thus, even if Congress succeeds in muzzling EPA to some extent, citizen suits will only proliferate, unless Congress also amends the CAA and other environmental statutes to eliminate citizen suit provisions.

Next up? A report that TransAlta Corp. has reached an agreement with the State of Washington to shut down Washington’s last coal-fired power plant. The agreement gives TransAlta until 2020 and 2025, respectively, to shut the two boilers at the plant. The story serves as a reminder that, even aside from NGOs, some states are looking to phase out coal-fired generation.

Let’s not forget that coal mining is under attack as well. Here too, notwithstanding Congressional efforts to protect coal mining, NGOs remain active. Daily Environment just reported that a federal judge issued a temporary restraining order against Highland Mining Co., ordering it to stop work on its 635-acre Reylas Surface Mine in Logan County, West Virginia. The suit alleges violations of NEPA and § 404 of the CWA.

Finally, we have the economic side of the issue. One factor coal has always had on its side – until recently – was its cost advantage over natural gas. With that cost difference eroded, simple economics may do what years of environmental enforcement couldn’t. Thus we have John Rowe of Excelon, which, of course, has almost no coal assets, asserting that EPA regulation will not kill coal, but only drive out old, inefficient plants. Heck, we even have the Wall Street Journal asking whether coal is “The Energy of the Past.”

Time will tell, but it is at least plain that the current GOP ascendancy has not solved all of coal’s problems.

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Last month, I noted that, in the absence of comprehensive climate legislation, U.S. carbon policy would be a mish-mash of several elements – including more NSR enforcement. In fact, Phillip Brooks, director of EPA’s Air Enforcement Division, had just told an ALI/ABA forum that EPA’s NSR enforcement initiative is alive and well and he predicted more closures of old coal plants as a result of EPA’s NSR enforcement. Earlier this month, proving that Brooks meant what he said, the United States sued Ameren Corporation, alleging NSR violations at Ameren’s Rush Island facility in Festus, Missouri. 

Apparently, I am not the only person who has noticed the connection between NSR enforcement and efforts to make life generally more difficult for coal plants. (Perhaps Mr. Brooks should not have been so explicit in his ALI/ABA remarks.) This week, Missouri Republican Senator Roy Blunt wrote to Lisa Jackson, criticizing the Ameren enforcement action and describing it as “another backdoor method used by the EPA to broadly penalize the use of coal in the United States.”

Blunt also criticized the “tsunami” of regulations by EPA that will increase the cost of coal-fired electricity generation. We had previously noted the Credit Suisse report which predicted the closure of more than 50 gigawatts of coal-fired capacity. Blunt referred to a study by the North Electric Reliability Corporation which made a similar prediction.

As my readers know, I dislike the NSR program and the enforcement initiative. I do think that many of these projects, often 15, 20, or 25  or more years ago, truly were thought routine, even if EPA may be able to persuade a court that they were not “Routine Maintenance” within the meaning of the regulations. The NSR program is certainly not a cost-effective way to regulate. However, NSR is part of the statute, EPA believes in it, and the case law is, from EPA’s perspective, at worst ambiguous and at best favorable. I expect that EPA would be pursuing many of these cases, even if climate change were not an issue and CO₂ not considered a problem. 

Is EPA sad that its NSR enforcement has the collateral impact of making coal less economic so that small coal-fired plants retire early, thus reducing GHG emissions? I doubt it. Does the climate change issue increase EPA’s enthusiasm? Perhaps so. The question is whether this added motivation is relevant. EPA’s intent may not be relevant to the courts, but it certainly looks as though it is relevant to Congress.

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Bill Hogan at the Kennedy School (shameless plug for alma mater) kindly asked me to speak at a meeting this week of the Harvard Electricity Policy Group. I’ve titled my talk “Carbon Policy When There Is No Carbon Policy.” Several items that came across the wires in the past few days buttress the theory behind my presentation, which is that our current carbon policy really is “A little bit of this, a little bit of that.” 

First, Phillip Brooks, director of EPA’s Air Enforcement Division, told an ALI/ABA forum that EPA’s NSR enforcement initiative is alive and well and that it expects to continue to send out information requests to potential enforcement targets concerning those targets operation and maintenance activities. Brooks predicted more closures of old coal plants as a result of EPA’s NSR enforcement.

Second, a report just released on the economic impact of air emissions supports EPA’s Transport Rule, asserting that each dollar spent on upwind emissions reductions results in $50 to $100 dollars in avoided environmental costs in downwind states. Greenwire subtly noted that the research was funded by Excelon, which owns the largest fleet of nuclear power plants in the nation.

Third, the Ninth Circuit Court of Appeals just affirmed a decision by the San Joaquin Valley Air Pollution Control District to require construction companies to assess the indirect air emissions resulting from construction projects and potentially to reduce such such emissions or pay a mitigation fee. The decision in National Association Of Home Builders v. The San Joaquin Valley Unified Air Pollution Control District is likely to provide additional momentum to state and local efforts to regulate land use decisions as a way to reduce sprawl and, as a result, GHG emissions.

So, what’s our carbon policy today? A little bit of enforcement of existing regulations, a little bit of new federal regulations of traditional pollutants, and a potentially increasing dose of state and local land use regulation.

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Is mercury a local problem or not? For years, power plant operators have claimed that mercury deposition is really a global problem. Environmentalists have pointed to studies arguing that hot spots affected by local emissions do exist. This week, according to the Cape Cod Times, John Colman, a USGS researcher – hardly likely to be a shill for the power industry – is going to report results of a study showing that mercury accumulation in both soil samples and fish tissue are comparable in Cape Cod and the Olympic Peninsula in Washington. Given prevailing wind directions, it’s hard to find a local source for mercury on the Olympic Peninsula.

According to the Cape Cod Times, Mr. Colman said that "the idea that burning coal is screwing up fish all over the Northern Hemisphere is kind of terrifying.” And I’ll bet that the United States power generation industry finds it terrifying that it may have to make very substantial – and costly – reductions in mercury emissions even though US emissions are about 5% of the world total and may not have a significant impact on the US environment.

I’m not discounting the need for regulation in the United States. Mercury is a real toxin. However, it would also be wrong to ignore the global aspect. To regulate the US power generation industry because doing so will solve a significant public health and environmental problem is one matter. To regulate the US power generation industry because we have to send a signal to the world that we are willing to regulate ourselves in order to persuade China to control mercury from its own coal-fired power plants is another. When the state of our nation is such that businesses are looking to put “China-Free” labels on their products, it will not be easy to persuade a significant segment of the population to support costly mercury controls when there is evidence that a substantial part of the problem stems from cheap coal-fired energy in China that delivers a twofer – allowing China to make goods more cheaply, while exporting its mercury pollution downwind to the United States.

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Last March, I noted that Gina McCarthy’s belief that, in the near term, the biggest impact on GHG emissions would come from EPA’s traditional regulatory programs, rather than through GHG regulation. A report recently released by Credit Suisse indicates that she might be right. Looking at EPA’s upcoming promulgation of the Clean Air Transport Rule and the mercury MACT rule, Credit Suisse predicts that between 50 and 69 gigawatts of old coal plants will be retired between 2013 and 2017 as a result of implementation of the two rules. Credit Suisse also predicts that approximately 100 gigawatts of capacity will require significant additional investment to comply with the rules.

For those with money to invest, Credit Suisse recommends clean plants in dirty markets – a not surprising conclusion. 

For those more interested in the regulatory side of things, it is worth noting that the Credit Suisse analysis is admittedly fairly simplistic. They pretty much just looked at small plants lacking scrubbers as candidates for closure. As the report puts it:

environmental control costs are non-linear (they’re more expensive on a unit of capacity basis at a small coal plant) and because these plants are generally older and less efficient in energy conversion.

Without details about individual plants, the Credit Suisse approach is certainly reasonable. I note only that, where plants are not closed, installation of scrubbers for SO₂ or SCRs for NO_x actually increases GHG emissions, because scrubbers and SCR require additional station service, making the plants less efficient to operate than previously. Overall, I don’t doubt that the closure of coal plants will outweigh the decrease in efficiency in the coal plants that remain operational, but both effects should be included in any analysis of the impact of the Transport Rule and the MACT rule on GHG emissions.

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It’s been obvious for some time that Republican victories in next month’s elections will only make it more difficult to pass climate legislation. However, perhaps the most telling reminder of the difficulty in passing climate legislation came last week from the Democrats, not the GOP. Governor Joe Manchin, running for Senator Byrd’s seat, was endorsed by the West Virginia Coal Association. Among the bullets noted in the press release, the WVCA noted that:

Governor Manchin opposes any form of Cap & Trade legislation that threatens the jobs that our coal mining families depend on for their livelihoods. 

The press release also notes that Manchin would work to pass legislation prohibiting EPA from regulating carbon using existing Clean Air Act authority. According to Greenwire, Bill Rainey, the President of the WVCA stated that “we've witnessed this governor put his finger in the chest of EPA officials."

In fact, given that he is from West Virginia, it appears that Manchin has been a good governor and would probably be a good senator – someone who could perhaps work across the aisle with senators like Lindsey Graham. However, while Tea Party types often talk about RINOs – Republicans in Name Only – environmentalists have to look at someone like Governor Manchin and think that, at least on climate change, he’s a DINO.

The environmentalists’ problem, even aside from potential losses in November, is that, on climate change, a newly-elected Senator Manchin would not be the only DINO.

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When we blogged about the Mandatory Greenhouse Gas Reporting Program regulations last fall, we noted that the EPA had excluded from the final regulations emission source categories such as wastewater treatment plants and underground coal mines that were initially included in the draft rules.  No longer. Yesterday, EPA finalized regulations requiring an estimated 680 facilities in the four sectors of underground coal mines, industrial wastewater treatment systems, industrial waste landfills and magnesium production facilities to begin collecting emissions data on January 1, 2011, and submit their first annual report in March 2012. Despite being few in number, these facilities, which primarily emit methane, are responsible for about 1% of national greenhouse gas emissions.  As in the existing reporting rules, 40 CFR Part 98, these businesses are required to report their emissions to EPA if they emit 25,000 metric tons CO₂ equivalents or more per year.  

The final rule also clarifies EPA’s decisions on the remaining categories: EPA will exclude ethanol production and food processing from distinct subparts requiring reporting, as well as suppliers of coal (at least for now).  However, these types of facilities are still required to report emissions under other subparts of the rule, if they meet the reporting threshold of 25,000 metric tons CO_2e per year. In addition, now that EPA has made final decisions on "all outstanding source categories and subparts" from last year's draft rule, additional sectors can only be added through new rulemaking.

EPA also released proposed rules reflecting what data submitted by facilities under the greenhouse gas reporting program will be released to the public and what will be withheld as confidential business information. EPA hopes to have these rules in place before the 10,000 facilities that produce about 85% of the nation’s emissions submit their first reports in March 2011. 

As you may recall, the greenhouse gas reporting rules require both direct emitters and suppliers of fuels and industrial gases to report.   For the “direct emitters,” EPA proposes to release information such as the facility name and physical address, emissions, methodology and data used to calculate the emissions, and test and calibration methods, but withhold as confidential business information data on production, throughput, or raw materials that are not inputs to the emissions equations. As the emissions reported by the suppliers of fuels and industrial gases are not emissions from their own facilities, but potential emissions from the eventual use of their products, the individual companies' reports are less important than the overall figures.  As such, EPA proposes a balancing approach – making sector-by-sector determinations and releasing data about emissions only when it would not cause substantial harm to the businesses’ competitive position. (Specifics on how data will be treated are available here.)   Comments are due 60 days after the proposed rules are published in the federal register.

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Two seemingly unrelated reports last week serve as a reminder that coal remains very much under siege. First, Earthjustice, on behalf of a number of environmental organizations, filed a petition with EPA under § 111 of the Clean Air Act requesting that EPA identify coal mines as an emissions source and, consequently, establish new source performance standards for coal mine emissions of methane and several other categories of pollutants. 

Second, as Daily Environment reported, the Army Corps of Engineers suspended use of Nationwide Permit 21 for the six states in the Appalachian region, covering Kentucky, Ohio, Pennsylvania, Tennessee, Virginia, and West Virginia. The decision means that, at least for now, mountaintop removal mining operations in these states will have to apply for and obtain individual Clean Water Act permits, rather than relying on the Nationwide permit.

Other significant regulatory actions affecting the long-term economics of coal include EPA’s decision to tighten regulation of coal combustion residuals, whether through identification of CCR as a hazardous waste or through regulation under RCRA subtitle D – with the current betting being on listing of CCR as a hazardous waste, and EPA’s Tailoring Rule, which will focus initial regulation of GHG emissions on large stationary sources, the most obvious of which are large coal-fired power plants.

All of these actions are nominally independent, but if anyone thinks that at least the NGOs such as the Center for Biological Diversity and Earthjustice don’t see these as related actions the cumulative goal of which is to end use of coal, they’re just not paying attention. Does Lisa Jackson feel the same way? I doubt she’ll ever tell us, but I think I know the answer.

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Last week, EPA proposed to veto a permit for the No. 1 Spruce Mine in West Virginia. Yesterday, EPA went much farther, announcing new guidance – effective immediately – which will impose numeric water quality based effluent limits, or WQBELs, on effluent from surface mining projects. EPA has at least tentatively concluded that high conductivity resulting from discharges of mountaintop fill has adversely affected streams downstream of surface mining operations.

The guidance is fairly straightforward – and for those to whom is it not sufficiently simple, EPA has provided a six-page summary version. Basically, EPA has concluded that permits for mountaintop mining must contain WQBELs that will ensure that in-stream conductivity levels do not exceed 500 microsiemens per centimeter (500 uS/cm). If modeling suggests that mining activities will result in any level above 300 uS/cm, “EPA should work with the permitting authority to ensure that the permit includes conditions that protect against conductivity levels exceeding 500 uS/cm.”

If you’re wondering what those levels mean and how big an impact the requirement to impose WQBELs will have, E&E Daily reported that EPA Administrator Jackson stated last evening that there are "no or very few valley fills that are going to meet this standard."

Though the guidance is effective immediately, EPA is characterizing it as a proposal and will take comment until December 1, 2010.

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Last week, I noted that Gina McCarthy, EPA’s Assistant Administrator for Air and Radiation, suggested that, in the short run, the most significant pressure on inefficient energy sources would come, not from climate change legislation or from EPA GHG regulations, but instead from all of the conventional pollutant regulations that EPA expects to promulgate that will make use of coal much more expensive. While Gina was referring to a variety of air regulations, such as CAIR, MACT rules, and SIP revisions following a more stringent PM standard, even Gina may have been too narrowly focused. Today, EPA announced that it was proposing to veto a mountaintop mining permit issued to the Spruce No. 1 Surface Mine, in West Virginia.

The proposed veto was based on a number of interrelated concerns, including impacts on water quality and fish and wildlife, an inadequate mitigation plan, and the cumulative impacts of Spruce No. 1 and other mining operations in the aptly named Coal River basin. The cumulative impact issue must, by itself, terrify mine owners.

I’m sure that EPA made this decision (rightly or wrongly) on the merits under the Clean Water Act. Nonetheless, does anyone think that Gina McCarthy - and Administrator Jackson - are not aware of the broader picture? Even if they were not, the environmental organizations that are looking to end use of coal certainly are. When one piles CAIR and mercury and increasingly stringent particular standards on top of limitations on mountaintop mining, the phrase that occurs to me is indeed “cumulative impact.” However, it’s the cumulative impact of all of these regulations and regulatory decisions on those using – or financing – coal plants that set me thinking. Perhaps that’s why a separate story in today’s GreenWire was headlined “Coal: Outlook grim for new power plants”

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Shortly before the holidays, EPA Administrator Jackson issued an Order in response to a challenge to a combined Title V / PSD permit issued by the Kentucky Division for Air Quality to an Integrated Gasification Combined Cycle, or IGCC, plant. The Order upheld the challenge, in part, on the ground that neither the permittee nor KDAQ had adequately justified why the BACT analysis for the facility did not include consideration of full-time use of natural gas notwithstanding that the plant is an IGCC facility. 

The Order may not be shocking in today’s environment – all meanings of that word intended – but the lengths to which the Order goes to avoid its own logical consequences shows just what a departure this decision is from established practice concerning BACT. BACT analyses have traditionally involved the proverbial “top-down” look at technologies that can be used to control emissions from a proposed facility. In other words, EPA takes the proposal as a given, and then asks what the best available control technology is for that facility. 

In EPA’s own words – from its New Source Review Workshop Manual (long the Bible for BACT analysis):

Historically, EPA has not considered the BACT requirement as a means to redefine the design of the source when considering available control alternatives. For example, applicants proposing to construct a coal-fired electric generator, have not been required by EPA as part of a BACT analysis to consider building a natural gas-fired electric turbine although the turbine may be inherently less polluting per unit product (in this case electricity).

Apt example, don’t you think? (In case you are wondering, EPA’s decision does not discuss or refer to this text from the NSR Manual.)

What was the basis for EPA’s decision here? Largely, it is that the IGCC facility will be designed to burn natural gas as well as syngas and the permittee specifically stated that it planned to combust natural gas during a 6-12 month startup period. On these facts, EPA concluded that the permittee and KDAQ had to do a better job explaining why full-time use of natural gas should be considered “to redefine the design of the source.”

As noted above, EPA went to great lengths to minimize the scope of the decision. It states that the Order:

should in no way be interpreted as EPA expressing a policy preference for construction of natural-gas fired facilities over IGCC facilities.

should not be interpreted to establish or imply an EPA position that PSD permitting authorities should conclude … that BACT for a proposed electricity generating unit is … natural gas.

does not conclude that it is not possible or permissible for the permit applicant … to develop a rationale which shows that firing exclusively with natural gas would “redefine the source.”

EPA does not intend to discourage applicants that propose to construct an IGCC facility from seeking to hedge the risk of investing in … IGCC technology by proposing … utilizing natural gas for some period….

Methinks EPA doth protest too much. If I may say so, this is a freakin’ IGCC facility. Isn’t it obvious that one doesn’t plan or build an IGCC facility if one plans to burn natural gas? Don’t you think that EPA could have taken administrative notice of what IGCC technology is?

All of EPA’s protestations about the Order’s limits may be designed to mollify IGCC supporters, but what does its rationale mean for all of the existing facilities – coal and oil – that are already capable of firing on natural gas? Next time they are subject to NSR/PSD review, must they evaluate the possibility of switching completely to natural gas? As I’ve said here before, yikes!

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EPA announced yesterday that it had reached a settlement with Duke Energy to address allegations of New Source Review violations at Duke’s Gallagher coal-fired generating plant in New Albany, Indiana. A jury had already found Duke liable for certain NSR violations at the plant. The settlement obviates the need for a remedy trial, which had been scheduled for early 2010.

The settlement requires Duke Energy to repower Units 1 and 3 at Gallagher with natural gas or shut them down and to install emission controls at Units 2 and 4. Duke will also pay a $1.75 million penalty and spend $6.25 million on various mitigation projects. 

The settlement is not that surprising, particularly given the prior liability findings. It nonetheless serves as a useful reminder that EPA continues to focus on coal plants and that it is going to use all the tools at its disposal to reduce coal plant emissions. Although the press release does not mention global warming, these settlements are another way for EPA to attack the climate change problem under existing authority, even in advance of rules regulating GHGs under the PSD program.

BTW, if it seems as though I am inundating you with posts today, the blog will be on vacation until January 4, so I wanted to get some last posts done. Happy holidays to all.

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Yesterday, Senators Kerry, Graham, and Lieberman sent to President Obama a “framework” for Senate climate change legislation. The framework is short on details and does not contain many surprises. For example, it proposes “near term” – near team is undefined – reductions of 17% from 2005 levels and “long-term” – also undefined – reductions of 80%. 

The framework is nonetheless noteworthy, particularly for its inclusion of strong support for both the coal and nuclear industries. Senator Kerry was must have loved writing “Additional nuclear power is an essential component of our strategy to reduce greenhouse gas emissions.” And this: “We will commit significant resources to the rapid development and deployment of clean coal technology.”

It is clear from the public statements that the Senators have made what this language really means. The translation is fairly easy, but for those not in the know, here goes:

“Nuclear power is essential” means “We need some Republican votes.”

“We will commit substantial resources to … clean coal” means “We need some coal-state Democratic votes.

If this weren’t so important to the environment and our economy, I might enjoy watching this.

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On Tuesday, EPA announced its intention to issue new effluent guidelines for the Steam Electric Power Generating industry by sometime in 2012. The announcement follows an EPA study in 2008 which indicated that toxic metals, particularly those collected as part of flue gas desulfurization processes, can pose a problem in facility effluent. EPA’s announcement is not particularly surprising, given the ongoing study and given that EPA has not revised the guidelines since 1982. Indeed, notwithstanding EPA’s announcement, Environmental Integrity Project, Defenders of Wildlife and Sierra Club announced that they would still sue EPA over its failure to timely update the guidelines.

There are two reasons why this announcement is significant beyond just its implications for effluent discharges from these facilities. First, it’s hard to see EPA’s announcement – and the threat of NGO litigation – as anything other than another bullet aimed squarely at the coal industry. From climate change, to attacks on mountaintop removal, to the reaction to the TVA spill, to this effort to make the effluent guidelines more stringent, there is no doubt that coal is in the cross-hairs at the moment. If there are any doubters concerning this point, Duke Energy CEO Jim Rogers isn’t among them. He was quoted in this morning’s Energy & Environment Daily as saying that it is at least possible to envision a world in 2050 “where coal is not in the equation.”

The other reason why this announcement is significant is that it raises fairly squarely the question regarding the very structure of our current regulatory system.  It’s not really any more than happenstance and political convenience that we regulate different environmental media differently. In this context, it is noteworthy that EPA’s Science Advisory Board just recommended that EPA consider setting multi-pollutant standards under the Clean Air Act, rather than regulating each pollutant separately. Theoretically, that’s good as far as it goes, but it doesn’t really solve the problem of the balkanization of EPA’s different regulatory programs.  In the long run, EPA’s regulatory efforts would be much more cost-effective – and would probably garner much more public support – if they were rationally based on an overall assessment of risk, across pollutants and across media.

I’m not holding my breath.

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This week, the practice of mountaintop removal – chopping the tops off mountains in order extract the coal – received two blows: one from EPA and one from Congress. First, EPA offices Region 3 and Region 4 announced that they plans to assess the Central Appalachia Mining's Big Branch project in Pike County, Ky., and the Highland Mining Company's Reylas mine in Logan County, W.Va., before permits are issued for those projects. 

Although the broad brush is important here, so are some of the details. First, both letters raise concerns about the cumulative impacts of multiple mountaintop removal projects. Second, the Region 3 letter raises the possibility that EPA might use its authority under section 404(c) of the Clean Water Act to prohibit issuance of the required permit, noting that the “extensive cumulative and other impacts give this proposed project high potential” for action under § 404(c).  

The second blow was the introduction in Congress of legislation that would prohibit mountaintop removal. Of course, introduction doesn’t guarantee passage, but it does seem notable that one of the two sponsors is Lamar Alexander, both a Republican and a Senator from a coal mining state. Senator Alexander’s support suggests that a tipping point may have been reached on this issue.

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Although it appeared initially as though Congress might be the first to move towards greater regulation of coal ash following the TVA spill, EPA has seized the initiative. Yesterday, Administrator Jackson announced a two-pronged initiative. First, EPA has issued information requests to facilities maintaining coal ash impoundments in order to gather information necessary to support new regulations. Second, she confirmed that EPA will indeed then promulgate regulations designed to prevent future spills.

In response to the Administrator’s announcement, Nick Rahall, Chairman of the House Natural Resources Committee withdrew his own coal ash regulation bill, H.R. 493, from mark-up.

EPA has not yet tipped its hand regarding the likely nature of such regulations, including whether coal ash would be handled as hazardous waste under RCRA or whether it would instead be handled as a solid waste.  Facilities operating coal-fired power plants have likely resigned themselves to increased regulation of coal ash, but could be expected to fight tooth and nail against efforts to regulate ash as a hazardous waste.  Such regulation would greatly increase management/disposal costs and would preclude many current reuses of coal ash.

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Coal has taken its lumps this week. Today, legislation was introduced in Congress to require EPA to promulgate MACT standards for mercury emissions from coal-fired power plants within one year of enactment of the legislation.

There has been some suggestion that the legislation was filed simply to prod EPA to drop its appeal of the decision by the D.C. Circuit Court of Appeals rejecting EPA’s Clean Air Mercury Rule (CAMR), which would have created a cap and trade program for mercury emissions. If so, it worked, if only by telepathy, because, in a separate announcement today, EPA withdrew that appeal.

One way or another, it is clear that EPA will be promulgating, as soon as it reasonably can manage, MACT standards for mercury emissions. What is also clear is that complying with those standards will be more expensive than compliance with the CAMR would have been. What’s not clear is whether EPA will figure out a way to harmonize the mercury rule with other air rules issued and to be issued, so that, while compliance will have to occur on a facility-specific basis, it can at least be achieved as cost-effectively as possible at each facility.

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In addition to our post yesterday and the items highlighted in the New York Times Green.Inc blog on the difficulties facing new and existing coal-fired power plants this week, the Environmental Protection Agency and the Department of Justice have launched what they call a new national crackdown targeting coal-fired plants that violate the Clean Air Act.

As the first piece of this campaign, the agencies filed suit on Wednesday against a Kansas power plant for PSD violations dating back to 1994, and following a notice of violation issued to the plant owners in January 2004.   

EPA and DOJ  had been criticized for not pursuing new cases against power plants during the Bush administration, but it looks as though efforts to take on the coal industry are ramping up again.

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The magnitude of the recent release of coal ash from the TVA dam is hard to fathom, though the pictures certainly give some sense of its magnitude. Now, as regulators and Congress attempt to get their collective arms around the import of the release, some of the regulatory implications of the release are starting to emerge. According to a report in yesterday’s Greenwire, Congressional hearings this week may include a discussion regarding whether coal ash should continue to be exempt from regulation as a hazardous waste under RCRA

The exemption of coal ash is critical to coal-fired power plants. According to the article, 130 million tons of fly ash were generated last year, 42 percent of which were beneficially reused. Moreover, there are approximately 600 landfills and containment ponds holding fly ash. Having helped a coal-fired power plant defend a law suit involving an on-site ash landfill some years ago, I can tell you from personal experience that placing fly ash within the ambit of RCRA hazardous waste rules would be a major headache for coal-fired power plants – and a major new weapon in the armory of those who want to shut down coal plants any way possible.

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