Va. Governor Executive Directive on Reducing Carbon Emissions from Power Plants; Issued May 16, 2017; Regulatory Process Started in June 2017

On May 16, 2017, Va. Gov. Terry McAuliffe signed and announced Executive Directive 11, which instructs the Department of Environmental Quality (DEQ) to begin a process of developing regulations to reduce carbon emissions from electric power plants.  The directive is available online (as a PDF) at http://governor.virginia.gov/media/9155/ed-11-reducing-carbon-dioxide-emissions-from-electric-power-facilities-and-growing-virginias-clean-energy-economy.pdf.

Following is an excerpt from the directive: “I hereby direct the Director of the Department of Environmental Quality, in coordination with the Secretary of Natural Resources, to take the following actions…
1. Develop a proposed regulation for the State Air Pollution Control Board’s consideration to abate, control, or limit carbon dioxide emissions from electric power facilities that: a. Includes provisions to ensure that Virginia’s regulation is “trading-ready” to allow for the use of market-based mechanisms and the trading of carbon dioxide allowances through a multi-state trading program; and b. Establishes abatement mechanisms providing for a corresponding level of stringency to limits on carbon dioxide emissions imposed in other states with such limits.
2. By no later than December 31, 2017, present the proposed regulation to the State Air Pollution Control Board for consideration for approval for public comment….”

A Notice of Intended Regulatory Action was published in the Virginia Register of Regulations on June 26, 2017.  The pertinent section of the Virginia Administrative Code is 9 VAC 5-140.   More information on this regulatory action is available online at http://townhall.virginia.gov/L/viewaction.cfm?actionid=4818.  According to the “Action Summary” at that Web site, “[t]he purpose of the proposed action is to develop a regulation, in accordance with Executive Directive 11 (2017), ‘Reducing Carbon Dioxide Emissions from Electric Power Facilities and Growing Virginia’s Clean Energy Economy,’ that (i) ensures that Virginia is trading-ready to allow for the use of market-based mechanisms and the trading of carbon dioxide (CO2) allowances through a multi-state trading program, and (ii) establishes abatement mechanisms that provide for a corresponding level of stringency to CO2 limits imposed in other states with such limits.”

A Regulatory Advisory Committee was formed to provide advice to the DEQ on development of the CO2 regulations.  The committee was scheduled to hold its first meeting on August 3, 2017; information on that meeting is available online at http://townhall.virginia.gov/L/ViewMeeting.cfm?MeetingID=26367.

The new directive follows the report on May 12 of the Executive Order 57 Work Group, which the governor established in June 2016 to study and make recommendations about reducing carbon emissions from the Commonwealth’s power plants.  The group’s final report, along with more information about Executive Order 57, is available online at https://naturalresources.virginia.gov/initiatives/eo-57/.

Source: Governor McAuliffe Takes Executive Action to Reduce Carbon Emissions Across Virginia; “Clean Energy Virginia” initiative will cap greenhouse gases and grow Virginia’s clean energy economy, Virginia Governor’s Office News Release, 5/16/17.

Following are some news media accounts on Executive Directive 11, listed from newest to oldest.
Virginia Begins Development of Cap-and-Trade Program for Electric Power Sector, National Law Review, 5/19/17.
Wagner takes aim at McAuliffe carbon order; critics say he’s seeking attention, Daily Press, 5/19/17.
Amid longshot run for governor, Wagner says he’ll call emergency hearing to fight McAuliffe’s climate change plan, Richmond Times-Dispatch, 5/19/17.
Virginia Governor Orders Power Plant Carbon Regulations, POWER Magazine, 5/18/17.
Bucking D.C. and Republican legislature, Virginia governor moves to limit carbon emissions, ThinkProgress (Center for American Progress Action Fund), 5/17/17.
McAuliffe Moves to Cap Utility Carbon Emissions, Bacon’s Rebellion, 5/17/17.
McAuliffe moves to curb carbon emissions blamed for sea level rise, [Newport News] Daily Press, 5/16/17.
McAuliffe: Virginia will regulate carbon emissions; ‘the threat of climate change is real’, Richmond Times-Dispatch, 5/16/17.
McAuliffe proposes statewide carbon cap, Washington Post, 5/16/17.
Virginia AG: State board can regulate carbon pollution, Richmond Times-Dispatch, 5/12/17.
Will Virginia forge its own path on carbon regulation?, Richmond Times-Dispatch, 5/3/17.

Mining Reclamation Conference Held April 9-13, 2017, in Morgantown, W. Va.

On April 9-13, 2017, in Morgantown, W. Va., “What’s Next for Reclamation?” was presented by  the West Virginia Mine Drainage Task Force, the American Society of Mining and Reclamation, and the Appalachian Regional Reforestation Initiative.  More information about the meeting is available online at https://wvmdtaskforce.com/2017-joint-conference/.

The meeting included two presentations by scientists connected with the Virginia Water Resources Research Center (which produces this Water Central News Grouper blog).  Center Director Stephen Schoenholtz presented “Water Quality and Biotic Condition in Mining-influenced Appalachian Headwater Streams: An Overview of a Long-term Study.”  Kriddie Whitmore, a graduating master’s student under Dr. Schoenholtz, presented “Selenium Dynamics in Mining-Influenced Headwater Streams of Central Appalachia.”

Clean Water Act Issues of Chesapeake Energy Center Coal Ash Ruling in March 2017 Discussed in 3/30/17 National Law Review Article

Virginia Ash Pond Seeps Violate CWA, But Do Not Warrant Civil Penalty, by Amy Antoniolli, Daniel Deeb, and Joshua Moore, in National Law Review, 3/30/17, reviews the legal issues related to the federal Clean Water Act (CWA) in a federal lawsuit over coal-ash storage ponds at Dominion Virginia Power’s Chesapeake Energy Center on the Southern Branch Elizabeth River in the city of Chesapeake, Virginia.

On March 23, 2017, U.S. District Court Judge John Gibney, Jr., issued a 21-page opinion, ruling that the plaintiff, the Sierra Club, had proved that arsenic from four impoundments at the Chesapeake Center had contaminated groundwater and reached the Elizabeth River.  Gibney’s ruling stated that that pollution violates the federal Clean Water Act, because Dominion did not have a Virginia Pollutant Elimination Discharge Systems permit for such discharges.  Key parts of the ruling are that the judge considered the ash-storage area to be point source of pollution under the CWA, and that groundwater contamination from the storage area was a violation of CWA because the groundwater was connected to surface waters covered by the law.  The National Law Review article discusses those findings.

For more detail on the lawsuit, please see this Water Central News Grouper post: Lawsuit Filed by Sierra Club in March 2015.

For more detail on coal-ash storage issues in Virginia, please see this Water Central News Grouper post: Closure of Coal Ash Ponds at Dominion and APCO Power Stations in Virginia, 2015-2017.

Water in the 2017 Virginia General Assembly: Coal Ash Management Bills – Updated 4/27/17

This is one of a series of posts on particular water-related bills in the 2017 Virginia General Assembly.  For an inventory of about 160 water-related bills in the 2017 General Assembly, please visit the Virginia Water Resources Research Center’s “Virginia Water Legislation” page, online at http://www.vwrrc.vt.edu/virginia-water-legislation/.  Each post includes a summary of the bill(s), their legislative status (in committee, passed, failed, etc.), and a list of hyperlinked headlines for news media items on the bill(s).  Information on the bills’ provisions and status is taken from the Virginia Legislative Information System (LIS), online at http://leg1.state.va.us/lis.htm.  Each bill number is hyperlinked to the LIS entry for that bill.

SB 1398, sponsored by Sen. Scott Surovell (D-36^th District) of Mt. Vernon, passed the Senate on Feb. 7.  As passed by the Senate, the bill would prohibit the DEQ director from issuing a draft permit for the closure of a coal combustion residuals unit (CCR unit) located in the Chesapeake Bay watershed (that is, at facilities of Dominion Virginia Power) until the director has reviewed an assessment of closure options prepared by the owner or operator of the CCR unit.  Prior to receiving a permit, the permit-seeker would have to identify water pollution and address corrective measures to resolve it, evaluate the clean closure of the CCR unit by recycling the ash for use in cement or moving it to a landfill, and demonstrate the long-term safety of the CCR unit and its ability to keep ash out of wetlands and other sensitive areas.  A substitute version passed by the House on Feb. 17 removed the requirement that the information be provided and reviewed by the director before the director may issue a draft permit for closure of a CCR unit.  The Senate agreed to the House version on Feb. 21.  On March 22, Gov. Terry McAuliffe proposed an amendment that would place a moratorium on any Dominion coal-ash closures until 2018, when the information required by SB 1398 will have been provided.  In early April, Dominion announced that it would not oppose the delay in closure permitting called for in the governor’s amendment.  The amendment was approved by the General Assembly in its April 5 reconvened session.

SB 1399, also sponsored by Sen. Surovell, was stricken from the docket of the Senate  Agriculture, Conservation and Natural Resources (ACNR) Committee at the request of Sen. Surovell.  The bill would have directed the DEQ to require the closure of surface impoundments of coal combustion by-products, commonly called coal ash ponds, by July 1, 2021.  The bill would have applied to impoundments that managed such by-products from the generation of electricity by an electric utility or independent power producer prior to December 22, 2016, including those impoundments that, prior to December 22, 2016, have been closed by capping in place or have received DEQ approval for closure by capping in place.  The bill would also have required that the coal combustion by-products be removed for disposal in a permitted landfill meeting federal criteria and that the impoundment site be reclaimed in a manner consistent with federal mine reclamation standards for the closure to be deemed complete.  The bill would have allowed the electric utility to recover the costs of closure from customers.

SB1383, also sponsored by Sen. Surovell, was stricken from the docket of the Senate ACNR Committee at the request of Sen. Surovell.  The bill would have required electric utilities to recycle as much of their stored coal ash as is imported into the Commonwealth each year, on a pro rata basis.

Related News Media Items on this Legislation

GOP ushers through coal ash legislation, Chesterfield Observer, 4/12/17.

Delaying closure: Virginia’s controversial coal ash ponds, WTOP Radio-Washington, 4/15/17.

New review of coal ash at Dominion Power’s Chesapeake site may leave out most of the ash, Virginian-Pilot, 4/6/17.

Coal Ash Ponds: Power companies to face new barrier in closing Virginia sites, Inside Nova, 4/6/17.

In special session, Virginia lawmakers put the brakes on Dominion’s coal-ash plans, Prince William Times, 4/6/17.

Dominion to assess coal ash sites regardless of bill’s fate, Associated Press, as published by WJLA TV-Washington, 4/5/17.

Dominion won’t oppose pause in coal-ash permitting, Richmond Times-Dispatch, 4/4/17.

If amended bill passes, coal ash closure process at Possum Point could slow, Potomac Local, 3/27/17.

Virginia governor proposes moratorium on coal ash permits, Bay Journal, 3/22/17.

McAuliffe seeks coal ash pond alternatives with permit moratorium, Inside NOVA, 3/22/17.

McAuliffe moves to place yearlong moratorium on coal-ash pond closure permits, Prince William Times, 3/22/17.

Governor requests pause in coal-ash permitting, Richmond Times-Dispatch, 3/22/17.

Sen. Chase asks governor for help with coal ash, Chesterfield Observer, 3/1/17.

Coal ash bill goes to governor without important moratorium provision, Virginian-Pilot, 2/21/17.

Coal Ash Bill Results In General Assembly Compromise: Bill Requires More Information Before Slurry Disposal, The Flat Hat (College of William and Mary), 2/21/17.

Virginia environmentalists disappointed by “watered down” coal ash bill, WTKR TV-Norfolk, 2/22/17.

Environmentalists disappointed by House’s coal ash bill, WTVR TV-Richmond, 2/17/17.

Virginia House of Delegates committee defangs coal ash bill, Richmond Times-Dispatch, 2/15/17.

Coal ash bill clears House subcommittee, though not unscathed, Richmond Times-Dispatch, as published by Roanoke Times, 2/14/17.

Coal ash bill clears Senate, but faces challenges in the state House, Fauquier Times, 2/13/17.

Surovell bill to delay Dominion’s coal-ash plans moves to the state Senate, Prince William Times, 2/3/17.

Bill that would require more information on coal-ash closure plans clears Va. Senate committee, Richmond Times-Dispatch, 2/2/17.

Is Recycling a Practical Solution for Coal Ash?, Bacon’s Rebellion, 2/2/17.

Coal ash revaluation, recycling bill that could affect Chesapeake energy site passes Senate panel, Virginian-Pilot, 2/3/17.

Water in the 2017 Virginia General Assembly: Coal Employment and Production Tax Credit

This is one of a series of posts on particular water-related bills in the 2017 Virginia General Assembly.  For an inventory of about 165 water-related bills in the 2017 General Assembly, please visit the Virginia Water Resources Research Center’s “Virginia Water Legislation” page, online at http://www.vwrrc.vt.edu/virginia-water-legislation/.  Each post includes a summary of the bill(s), their legislative status (in committee, passed, failed, etc.), and a list of hyperlinked headlines for news media items on the bill(s).  Information on the bills’ provisions and status is taken from the Virginia Legislative Information System (LIS), online at http://leg1.state.va.us/lis.htm.  Each bill number is hyperlinked to the LIS entry for that bill.

HB 2198, Coal tax; extends coal employment and production incentive tax credit and limits aggregate amount of credits that may be allocated or claimed.  This bill, sponsored by Del. Terry Kilgore (R-1^st District), of Gate City, passed the House on February 2 and passed the Senate on February 10, but it was vetoed by the governor on February 21.  The veto will be taken up in the reconvened session on April 5, 2017.  According to the Virginia Legislative Information System summary, the bill as it passed the House would “reinstate the Virginia coal employment and production incentive tax credit.  The credit, which expired on July 1, 2016, could be earned on and after January 1, 2017, but before January 1, 2022. The bill limits the aggregate amount of credits that may be allocated or claimed for the coal employment and production incentive tax credit in each fiscal year to $7.3 million.  An electricity generator must file an application with the Department of Taxation each year to determine the amount of credits that it may claim or allocate, including credits earned in prior taxable years.  If the total amount of credits earned in a taxable year exceeds $7.3 million, the Department of Taxation shall apportion the credits on a pro rata basis.  The bill also extends the sunset date of the coalfield employment enhancement tax credit through taxable years beginning before January 1, 2022.”   SB 1470, sponsored by Sen. A. Benton Chafin (R-38^th District), of Lebanon, is identical to HB 2198.  That bill passed the Senate on February 3 and the House on February 15, but was vetoed by the governor on March 13.  The veto will be taken up in the reconvened session on April 5, 2017.

Related News Media Item
Governor vetoes coal tax credit bill for third year in row, Roanoke Times, 2/22/17.

Stream Protection Rule Regarding Coal Mining Impacts on Waterways Rescinded in February 2017 After Finalization in December 2016

In early February 2017, Congress used the Congressional Review Act to rescind the U.S. Office of Surface Mining Reclamation and Enforcement’s (OSMRE) “Stream Protection Rule,” on impacts of coal mining on waterways.  The rule had been finalized with Federal Register publication on December 20, 2016.  OSMRE’s Web site on the proposed rule is at http://www.osmre.gov/programs/rcm/streamprotectionrule.shtm; a link to the text of the proposed rule is available there.  OSMRE first proposed the rule on July 16, 2015 (the draft rule was published in the Federal Register on July 27, 2015).

According to the OSMRE Web site on 2/14/17, the rule was intended to have done the following:

“…[Define] ‘material damage to the hydrologic balance outside the permit area’ for the first time…clarifying that the statutory prohibition on the approval of proposed operations that would result in material damage to the hydrologic balance outside the permit area applies to both surface and underground mining operations.  Under SMCRA [the Surface Mining Control and Reclamation Act, passed in 1977], the regulatory authority may not approve a permit application unless the application demonstrates, and the regulatory authority finds, that the proposed operation would not result in material damage to the hydrologic balance outside the permit area.

“…[Require] that the regulatory authority specify the point at which adverse mining-related impacts on groundwater and surface water would constitute material damage to the hydrologic balance outside the permit area reach that level of damage.  It further provides that the regulatory authority must specify threshold values for surface water and groundwater parameters that will trigger an evaluation of whether the permit must be revised to prevent the occurrence of material damage to the hydrologic balance outside the permit area.

“…[Expand] the baseline data requirements for permit applications for proposed coal mining operations to ensure that the permittee and the regulatory authority have a complete picture of pre-mining conditions to which the impacts of mining can be compared.  Monitoring during mining and reclamation will include a comprehensive suite of parameters for both surface water and groundwater to ensure that the impacts of mining are identified in a manner that will enable timely initiation of corrective measures.

“…[Require] the restoration of the physical form, hydrologic function, and ecological function of the segment of a perennial or intermittent stream that a permittee mines through.  Additionally, it requires that the post-mining surface configuration of the reclaimed mine site include a drainage pattern, including ephemeral streams, similar to the pre-mining drainage pattern, with exceptions for stability, topographical changes, fish and wildlife habitat, etc.

“…[Require] the establishment of a 100-foot-wide streamside vegetative corridor of native species (including riparian species, when appropriate) along each bank of any restored or permanently-diverted perennial, intermittent, or ephemeral stream.”

The proposed rule’s announcement in July 2015 raised immediate objections from the National Mining Association, some elected officials from mining states like West Virginia, and others about its potential economic impacts.  On the other hand, some environmental organizations criticized the proposal for allowing some variance, under certain conditions, from the 100-foot buffer requirement established in 1983; those conditions are described in the proposed rule on p.364 (part of the section entitled, “What additional requirements apply to proposed activities in, through, or adjacent to streams?”).

The Stream Protection Rule was the latest in a series of regulatory and litigation developments since the 1977 passage of the federal Surface Mining Control and Reclamation Act.  Some of those developments that led to the Stream Protection Rule were the following:
*1983 OSMRE rule requiring a 100-foot buffer zone along streams;
*2008 OSMRE Stream Buffer Zone Rule allowing deposition of mining materials within the 100-foot zone, with certain requirements for reducing impacts;
*2009 Memorandum of Understanding among the Interior Department, U.S. EPA, and Army Corps of Engineers on reducing stream impacts of coal mining, simultaneously starting OSMRE’s process to develop the current proposed regulation; and
*February 2014 ruling by the U.S. District Court for the District of Columbia vacating OSMRE’s 2008 Stream Buffer Zone Rule and reinstating the 1983 buffer zone.

Sources:

House Republicans Vote to End Rule Stopping Coal Mining Debris From Being Dumped in Streams, Associated Press, as published by Time, 2/1/17.

Republicans Move to Block Rule on Coal Mining Near Streams, New York Times, 2/2/17.

Congress passes first rollback of Obama environmental rule, USA Today, 2/2/17.

Federal Register, “Stream Protection Rule,” 81 FR 93066, 12/20/16, online at https://www.federalregister.gov/documents/2016/12/20/2016-29958/stream-protection-rule.

Interior Department Finalizes Stream Protection Rule to Safeguard Communities from Coal Mining Impacts, U.S. Department of the Interior News Release, 12/19/16.

Interior Department Unveils Proposed Stream Protection Rule to Safeguard Communities from Coal Mining Operations, U.S. Department of Interior News Release, 7/16/15.

National Mining Association Calls on Congress to Block OSM’s Costly, Unnecessary Stream Rule, National Mining Association News Release, 7/16/15.

Interior unveils rule aimed at protecting streams from mining, and Industry vows to fight ‘needless and conflicting’ stream rule, both from Greenwire, E&E Publishing, 7/16/15 (subscription required for access).

Abandoned Coal Mine Clean-up Examined in Nov. 28, 2016, PBS NewsHour Report

On November 28, 2016, the PBS NewsHour aired a 5 min./25 sec. report on coal mine reclamation and particularly on clean-up of abandoned coal-mining sites.  “Why cleaning up abandoned coal mines is so important — and difficult,” available online at http://www.pbs.org/newshour/bb/cleaning-abandoned-coal-mines-important-difficult/, discusses issues of waste left at abandoned mines, reclamation at active mines, potential water-quality impacts of abandoned mine wastes, and funding.  The report includes examples from Pennsylvania and Wyoming.