RMMLF Mineral Law Newsletter
(By Joseph K. Reinhart, Sean M. McGovern, Daniel P. Hido and Gina N. Falaschi)
As previously reported, the Pennsylvania Department of Environmental Protection (PADEP) continues its rulemaking to limit carbon dioxide (CO2) emissions from fossil fuel-fired electric power generators consistent with the Regional Greenhouse Gas Initiative (RGGI) Model Rule and Governor Tom Wolf’s October 3, 2019, Executive Order No. 2019-07, 49 Pa. Bull. 6376 (Oct. 26, 2019). See Vol. XXXVII, No. 2 (2020); Vol. XXXVII, No. 1 (2020); Vol. XXXVI, No. 4 (2019) of this Newsletter. PADEP’s efforts, however, have met significant resistance in recent months.
On June 22, 2020, Governor Wolf amended his original executive order to extend PADEP’s deadline to present the rulemaking to the Environmental Quality Board (EQB), the independent body responsible for adopting proposed PADEP regulations, from July 31, 2020, until September 15, 2020. See Exec. Order No. 2019-07, as amended, 50 Pa. Bull. 3406 (July 11, 2020). This extension provides PADEP with additional time to conduct further outreach needed due to disruption caused by the COVID-19 global pandemic and to respond to advisory committee and community feedback.
Advisory Committee Activities
Several advisory committees have recently voted against presenting PADEP’s draft rulemaking to the EQB. First, PADEP presented its preliminary draft proposed rulemaking to establish a CO2 budget trading program to the Air Quality Technical Advisory Committee (AQTAC) on February 13, 2020, and held a virtual special joint informational meeting with AQTAC and the Citizens Advisory Council (CAC) on April 23, 2020, to present further information on the program.
Further information regarding the CO2 budget trading program was presented at the May 7, 2020, AQTAC meeting. See Presentation by PADEP to the AQTAC, “Draft Proposed Rulemaking: Chapter 145. Interstate Pollution Transport Reduction—Subchapter E. CO2 Budget Trading Program” (May 7, 2020). PADEP reviewed the proposed program and presented changes made to the proposal since the preliminary draft. These changes include (1) amending the definition of legacy emissions, which amends calculation and value of the waste coal set-aside;(2) establishing the allowance base budget at 78 million tons of CO2, which will decline annually; (3) adding two additional allowance allocations, the strategic use set-aside account and cogeneration set-aside account; and (4) removing abandoned well plugging as an offset project option. Id. AQTAC members asked questions and also heard public comment on the proposed program before voting on whether to concur with PADEP’s recommendation to move the proposed rulemaking forward to the EQB for consideration. The AQTAC vote was tied with one abstention, so under the rules, the motion did not carry.
PADEP also presented the draft proposed CO2 budget trading program regulation to the CAC on May 19, 2020. See Minutes of Webex Meeting of Citizens Advisory Council (May 19, 2020). Public comment was heard on the proposal and the CAC voted 9 to 4 (with one abstention) against a motion to recommend that PADEP present the proposed rulemaking to the EQB.
On July 22, 2020, the Pennsylvania Small Business Compliance Advisory Committee also heard a presentation from PADEP on the proposed draft regulation. This committee also voted against a motion to move PADEP’s proposed draft regulation forward.
Legislative Activities
In addition to meeting resistance from advisory committees, Governor Wolf’s executive order is also meeting resistance from the Pennsylvania General Assembly. In response to the Governor’s executive order, in November 2019 members of the Pennsylvania House and Senate referred bipartisan companion bills, House Bill 2025 (HB 2025) and Senate Bill 950 (SB 950), both known as the Pennsylvania Carbon Dioxide Cap and Trade Authorization Act, to their respective Environmental Resources and Energy committees for consideration. See HB 2025, 203d Leg., Reg. Sess. (Pa. 2019); SB 950, 203d Leg., Reg. Sess. (Pa. 2019). The legislation prohibits PADEP from adopting any measure to establish a greenhouse gas cap-and-trade program unless the general assembly specifically authorizes it by statute.
While the legislation was pending, members of the Pennsylvania Senate Republican Caucus wrote a letter to Governor Wolf asking him to rescind his executive order, arguing that the COVID-19 pandemic has significantly reshaped the policymaking process in Pennsylvania and that the constraints caused by the pandemic have limited meaningful participation in the rulemaking process. See Letter to Governor Wolf (Apr. 21, 2020), https://environmental.pasenategop.com/wp – c o n t e n t / u p l oa d s/ si t es/ 34 / 2 0 2 0 / 0 4 / 4 . 2 1 . 2 0 2 0 -PASenateRGGI.pdf. The letter suggests that the current rulemaking activity is premature given recent events, and if continued will likely cause commonwealth power plants and the businesses that supply them to shut down.
The House committee voted on June 9, 2020, to move HB 2025 to the full House for consideration, and the House passed the bill with a vote of 130-71 on July 8, 2020. The bill will now be considered by the Senate and was referred to the Committee on Environmental Resources and Energy on July 13, 2020. Governor Wolf has vowed to veto the bill.
On July 8, 2020, the same day that HB 2025 passed the House, PADEP issued a press release asserting that, according to its analysis, the reduced CO2 pollution from power plants through the commonwealth’s participation in RGGI would save hundreds of lives and billions of dollars in Pennsylvania. See Press Release, PADEP, “Capping Carbon Pollution Would Save Hundreds of Lives and Billions of Dollars” (July 8, 2020). PADEP estimates that participation in RGGI would lead to a net increase of more than 27,000 jobs, add $1.9 billion to the gross state production, and save more than $6 billion in health benefits through 2030 from reduced sulfur dioxide and nitrogen oxide pollution. Id.
Debate on this proposal is likely to continue over the next few months. We continue to follow this issue closely and will provide further information in the next issue.
JOINT LEGISLATIVE CONSERVATION COMMITTEE ISSUES REPORT ON SUPPORTING COAL REFUSE-FIRED POWER PLANTS
In June 2020, the Pennsylvania Joint Legislative Air and Water Pollution Control and Conservation Committee (JLCC) released a report on the benefits of utilizing coal refuse-fired power plants. See JLCC, “The Coal Refuse Reclamation to Energy Industry and Carbon Trading Markets” (June 2020). The JLCC, which is a bipartisan group of 18 members of the Pennsylvania House and Senate, conducts continuing studies of air and water pollution laws and their enforcement and recommends needed changes to the general assembly.
In 2020, the JLCC held hearings and information sessions to explore how the commonwealth balances the services that the coal refuse reclamation to energy industry provides with current initiatives to reduce pollutants, including greenhouse gas emissions. The committee heard from stakeholders and experts to better understand the workings of the industry and the impact of state and federal regulations on it.
The resulting report addresses the environmental and economic benefits of the coal refuse reclamation to energy industry, highlighting that coal refuse-fired power plants generate power using hundreds of legacy waste coal piles across the commonwealth, which contribute to particulate pollution, acid mine drainage, and other environmental and health hazards. The report acknowledges that the plants emit pollutants and carbon dioxide associated with fossil fuels. The alternative, however, would be for commonwealth agencies to use federal and state funds to reclaim these sites directly, which would come at a higher cost to taxpayers. As a result, the JLCC offered five recommendations to support the industry:
- Increase the Coal Refuse to Energy and Remediation annual cap to $40 million from the current $20 million, while also removing caps to allow the full amount to be accessed by the industry.
- Advocate for a long-term, industry-sustaining federal credit of at least $12 per ton of refuse burned to eventually replace Pennsylvania’s current credit.
- Create a Power Purchase Agreement with local utilities or state and federal agencies to ensure the plants continue to operate regardless of fluctuations in the energy market.
- . . . [C]onsider increasing the [coal refuse to energy industry] set-aside amount [in the Pennsylvania Department of Environmental Protection’s draft Regional Greenhouse Gas Initiative rulemaking] to 12.5 million tons of coal equivalent [from the current 9.3 million tons] to account for decreased production in recent years.
- Limit participation in Tier II of the Alternative Energy Portfolio Standards program to in-state resources to increase credit value.
Id. at 5.
EQB PROPOSES REVISED WATER QUALITY CRITERIA FOR MANGANESE
On July 25, 2020, the Pennsylvania Department of Environmental Protection’s (PADEP) Environmental Quality Board (EQB) published proposed revisions to the water quality standard for manganese. See Water Quality Standard for Manganese and Implementation, 50 Pa. Bull. 3724 (proposed July 25, 2020).
As previously reported, revisions to the water quality standard for manganese have been in progress for several years, pursuant to the October 30, 2017, amendment to section 1920-A of the Administrative Code of 1929, 71 Pa. Stat. § 510-20, known as Act 40, which directed the EQB to promulgate revised water quality criteria for manganese within 90 days. See Vol. XXXVII, No. 1 (2020); Vol. XXXVI, No. 3 (2019) of this Newsletter. In response to Act 40, PADEP published an advance notice of proposed rulemaking on January 27, 2018, soliciting technical information for the development of the revised water quality standards. See Water Quality Standard for Manganese, 48 Pa. Bull. 605 (Jan. 27, 2018) (advance notice of proposed rulemaking).
There are two major aspects of the July 25, 2020, proposed rule: (1) revised numeric water quality criterion for manganese, and (2) two proposed alternative points of compliance.
Revised Numeric Water Quality Criterion
The current water quality criterion for manganese of 1.0 mg/L is contained in 25 Pa. Code § 93.7, Table 3. The proposed rule would delete the 1.0 mg/L criterion for manganese from Table 3 and add manganese to the list of toxic substances under 25 Pa. Code § 93.8c, Table 5, with a new criterion of 0.3 mg/L. Table 3 generally identifies the “critical use” of waters to be protected by the criteria set forth in the table. In contrast, Table 5 water quality criteria are set at a level to protect human health and aquatic life and apply to all surface waters in the commonwealth.
The preamble to the proposed rule notes that while the U.S. Environmental Protection Agency (EPA) has not developed a human health criterion for manganese, toxicological data relating to human health effects from manganese is available. PADEP therefore developed a new human health criterion for manganese of 0.3 mg/L pursuant to 25 Pa. Code § 16.32(c)(2), following the EPA’s “Methodology for Deriving Ambient Water Quality Criteria for the Protection of Human Health” (2000), and the “2015 EPA Updated Ambient Water Quality Criteria for the Protection of Human Health.”
Point of Compliance Alternatives
The chapter 93 water quality criteria set “instream” water quality criteria that PADEP implements through treatment technologies and effluent limitations requirements in individual National Pollutant Discharge Elimination System (NPDES) permits. Thus, the “point of compliance”—i.e., where in the stream compliance with applicable water quality standards is measured—is an important point.
25 Pa. Code § 96.3(c) requires chapter 93 water quality criteria to be achieved 99% of the time in all surface waters (i.e., compliance is measured at the point of discharge). However, under section 96.3(d), water quality criteria for certain constituents must instead be met 99% of the time at the point of all existing or planned surface potable water supply withdrawals. Act 40 directed PADEP to propose regulations that move the point of compliance for manganese from the point of discharge to the point of all existing or planned surface potable water supply withdrawals under section 96.3(d).
The July 2020 proposed rule proposes setting the point of compliance for the revised manganese water quality criterion at either the point of discharge or the point of all existing or planned surface potable water supply withdrawals and solicits comments on the two proposed alternatives. However, the preamble discussion clearly indicates PADEP’s preference to establish the point of compliance at the point of discharge.
Next Steps
The proposed revision to the water quality standard for manganese would likely have a significant impact on the mining industry in Pennsylvania, as well as many other industries, particularly if the final rule sets the point of compliance at the point of discharge. As stated in the preamble:
Adoption of a new human health toxics criterion for manganese may require new and existing NPDES discharges to be evaluated when permit applications undergo [PADEP] review. This evaluation could potentially result in increased treatment and operational costs for permitted dischargers with manganese effluent limits, depending on the point of compliance for the criterion.
50 Pa. Bull. at 3728. Comments on the proposed rule may be submitted until September 25, 2020.
PADEP POSTS REVISED DRAFT ENGINEERING MANUAL FOR SURFACE MINING OPERATIONS
The Pennsylvania Department of Environmental Protection (PADEP) recently presented a revised draft of the “Engineering Manual for Surface Mining Operations” (Engineering Manual) at the July 16, 2020, meeting of the PADEP Mining and Reclamation Advisory Board (MRAB). The current version of the Engineering Manual was issued in 1999.
The 147-page draft Engineering Manual would apply to all surface coal and non-coal operators in Pennsylvania and contains technical guidance and standards in the areas of erosion and sedimentation control, impoundments, haul roads, water discharges, active and passive mine drainage treatment, streams and wetlands encroachment, mining near public roads, slope stability, and air pollution control. The Engineering Manual is intended to assist operators in preparing permit application materials that require engineering information in these areas, as well as PADEP staff in reviewing permit applications. The Engineering Manual states that it explains acceptable designs and where variations are possible for information required as part of permit applications.
The initial draft of the Engineering Manual was presented to MRAB for discussion as the first step toward finalizing the revised manual. The manual may be further revised in response to feedback from MRAB. Prior to finalization the revised manual will be published in the Pennsylvania Bulletin for public comment. According to PADEP’s non-regulatory agenda, an updated copy of which was also issued in July 2020, PADEP anticipates publishing the proposed revised manual in the third quarter of 2020.
PADEP RELEASES DRAFT 2020 INTERACTIVE STATE WATER QUALITY REPORT
On June 27, 2020, the Pennsylvania Department of Environmental Protection (PADEP) released the “Draft 2020 Pennsylvania Integrated Water Quality Monitoring and Assessment Report.” See Press Release, PADEP, “DEP Releases Draft Report on Statewide Water Quality” (July 2, 2020). PADEP is required to submit the report to the U.S. Environmental Protection Agency every two years under sections 303(d) and 305(b) of the Clean Water Act, 33 U.S.C. §§ 1313(d), 1315(b). In particular, section 303(d) requires states to identify impaired waters that require the development of total maximum daily loads (TMDLs).
The report classifies nearly all of the state’s streams and lakes into eight categories based on the status of attainment with protected uses and implementation of TMDLs. Agriculture, abandoned mine drainage, and stormwater runoff are identified as the most common causes of water impairment. All of the information on impairment listings is downloadable in Excel spreadsheet format. The report also identifies waters that have been restored since the last biannual report, and highlights PADEP’s success in treating abandoned mine drainage, which the report states constitutes the majority of restored waters.
The report also identifies 27 restoration priority watersheds, almost all of which are identified as impaired due to agriculture. The Casselman River watershed in Somerset County, which is identified as impaired due to metals and pH levels caused by abandoned mine drainage, is the only mining-related restoration priority watershed in the report.
The interactive online report includes maps with zoom functions that allow users to identify the status of and obtain information on specific streams of interest. The comment period on the draft report closed on August 11, 2020.
Copyright © 2020, The Foundation for Natural Resources and Energy Law, Westminster, Colorado
