EPA Cannot Sweep Toxic Coal Ash Under the Rug

When coal is burned, roughly ten percent remains behind in mineral form that is contaminated with toxic heavy metals.  In coming years, as more coal-fired plants install scrubbers, this proportion will rise.  The already large stream of toxic coal combustion residues (CCRs) will grow significantly.

At present, we have only a patchwork of state regulations.  Maryland recently (2008) implemented CCR regulations for the first time.

Under pressure from a White House responsive to utilities, EPA has offered a weaker option that would treat toxic coal combustion waste like household garbage under state regulation.  The more protective alternative would designate the stuff as a “special waste” and put it under federal regulation.

Economist John Howley, editor of MarylandEnergyReport.org, presented oral and written comments to the USEPA at an Arlington public hearing.   The comments examined Maryland’s recent experience with regulation toxic coal combustion waste.

Under the Healthy Air Act, scrubbers have been installed on all of Maryland’s coal-fired power plants and production of coal combustion waste has been predicted by the Maryland Department of the Environment to more than double.  At present, most of Maryland’s CCRs are shipped out of state.  Absent strong federal regulation, we could witness an explosive growth in unregulated inter-state shipments of CCRs in coming years.

For an update on the kind of damage toxic coal waste can leave in its wake, see this recent report from the Environmental Integrity Project, Earthjustice and Sierra Club: IN HARM’S WAY: Lack Of Federal Coal Ash Regulations Endangers Americans And Their Environment – Thirty-nine New Damage Cases of Contamination from Improperly Disposed Coal Combustion Waste.


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PATH Contractor Investigated for Defrauding Taxpayers

A New Jersey construction firm that exploited its close ties to the Cheney-Bush Administration to win massive war contracts is under investigation by the Justice Department for over-billing taxpayers for work in Afghanistan and Iraq.  The company, the Louis Berger Group, is also a major contractor on the controversial, coal-by-wire Potomac-Appalachian Transmission Highline (PATH).  AP reports:

Louis Berger has been a major player in U.S.-funded reconstruction projects in Iraq and Afghanistan, now leading a $1.4 billion USAID infrastructure project to build roads and power plants in Afghanistan.

This has come to light because of a suit filed by the nephew of the company’s founder who claims he is being forced out by the federal prosecutors:

Prosecutors acknowledged their ongoing criminal and civil investigations in response to a federal lawsuit filed last week by Derish Wolff, chairman of Louis Berger’s parent company Berger Group Holdings. Wolff is attempting to block efforts to have his nearly one-third ownership stake in the company held in escrow following his resignation, which he argues was forced as part of the company’s negotiations to end the federal investigations.

AP notes that Louis Berger’s government service included “a $305 million diesel plant outside Kabul that tripled in cost and was delivered more than a year behind schedule…”

Louis Berger’s problems are not new:

Louis Berger’s performance on a 2002 USAID contract to build dozens of schools and health clinics in Afghanistan came under fire after some work had to be redone and the company was accused of submitting fraudulent work claims, according to an investigation conducted by Republican Sen. Tom Coburn’s staff.

The small difficulty is that if the Louis Berger Group were to be convicted of criminal wrongdoing, then they would be ineligible for federal contracts (“debarment”).  As a result, the company would probably go out of business because it has become so dependent on government handouts.  In turn, the U.S. government would lose its biggest “civilian” contractor in Afghanistan.  New York Construction reports:

“The mere allegation of wrongdoing could result in debarment,” which could force the company “to shut its doors,” Wolff claims.

Wolff wants to cash out his stockholdings which would drain the company of cash that federal prosecutors would like to recoup for taxpayers (remember the budget deficit?)

Meanwhile, back home, Louis Berger Group has its fingers in the three major parts of the coal industry’s much beloved Project Mountaineer: Susquehanna-Roseland, TrAIL, and PATH.  This is how the company describes its role in the PATH project:

The Berger Team is currently conducting route selection efforts, supporting the public involvement process, and coordinating local, state, and federal agency consultations for this project in West Virginia and Virginia. We are presently conducting permitting for this project.

In light of the Justice Department investigation, public officials might want to reconsider their ties to the Louis Berger Group.

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Economist Howley Challenges National Security Agency’s Environmental Impact Statement

AKA “No Such Agency,” the super-secret NSA cultivates carefully its image as the “smartest guys in the room” — code-breakers, linguists, computer programmers, Internet snoopers and so on.  But the Draft Environmental Impact Statement (DEIS) for the NSA expansion at its campus in Fort Meade, Maryland, contradicts this image.

The greatest environmental challenge facing our nation and our global community is human-caused climate change.  This challenge is so profound that it entails significant national security implications as well.  Yet the NSA’s DEIS mostly overlooks it — except for passing references.

The Proposed Action that is the subject of the DEIS is 1.8 million square feet of office space and data center.  As detailed in these comments submitted to the NSA, the DEIS is deficient because it does not (1) consider the Alternative of building the project as Zero-Net-Energy and (2) the DEIS does not estimate either the projected amount of electricity the facilities will purchase from the grid nor the associated greenhouse gas (GHG) emissions.

The DEIS ignores important, government-wide initiatives under way to cut energy use and GHG emissions.  Executive Order 13514 says that, beginning in 2020, all federal buildings should be built as Zero-Net-Energy.  The NSA are the “best and the brightest” — why can’t they do it now?

The DEIS makes no attempt to account for GHG emissions from purchased energy — even though this can be done quite easily — as is illustrated in the comments.

The DEIS ignores the State of Maryland’s statutory energy efficiency goals even though the Draft Guidance prepared by the Council on Environmental Quality on how agencies should deal with GHG emissions in an environmental impact statement says that federal, state and local energy goals should ne included in the analysis.

If the NSA had done a complete analysis of their projected power usage, then it would become obvious that this project will put a significant strain on the local power grid, force up prices for homeowners and businesses and increase pressure to build the “coal-by-wire” PATH transmission project.

Construction of PATH would leave the NSA headquarters more dependent on long-distance transmission of dirty power and vulnerable to natural or man-made disruptions.  There are better ways to do it: IBM has developed a data center that runs “off the grid.”

Building a coal-by-wire transmission line from West Virginia’s John Amos coal plant to a massive new substation in Mt. Airy, Maryland — a short hop from Fort Meade — and connecting it to an energy-inefficient new data center might please a certain powerful member of the Senate Select Committee on Intelligence.  Coal-addicted John D. Rockefeller IV served as chairman of the committee during 2007-09 (and continues as the senior Democrat behind the new chair) and is a strong supporter of PATH.  John D. Rockefeller is leading the attack on the Environmental Protection Agency from within President Obama’s own party.

Here is an opportunity to reassure taxpayers that our national-security policies cannot be held hostage to parochial, pork-barrel interests.  By constructing “Site M” as a Zero-Net-Energy facility, the NSA can show the world that it understands the strategic ramifications of climate change and is committing to do something about it.

If you would like a copy of the DEIS, then you must request one by email.  (Why can’t they PDF it and put it on the Internet like all the other agencies do?)

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More Question Marks Over Calvert Cliffs III

Constellation Energy has entered into a partnership with state-owned EDF to construct a third reactor at Calvert Cliffs based on Areva’s EPR design.

Current Areva projects are slipping behind schedule and EDF has raised the projected cost of Flamanville by 25 percent.

EDF is building a 1,650-megawatt, Areva SA-designed EPR at Flamanville in Normandy and plans similar models in the U.K, the U.S. and China. Areva is developing an EPR in Finland, which is over budget and behind schedule.

Areva is having money problems.

State-owned Areva was given the go-ahead for a 15 per cent capital increase to finance investments, in which EDF could raise its 2.4 per cent stake to 7 per cent, according to officials.

Part of the problem seems to be that the officials running these two entities can’t get along.

Christine Lagarde, finance minister, said on Wednesday that Areva and EDF “must imperatively get along” following months of rancour between Henri Proglio, chairman of EDF, and Anne Lauvergeon, Areva’s chief executive.

The French government recently released a report on Areva and EDF that was ordered in the wake of their failure to win a major reactor contract in Abu Dubai (it went to a South Korean firm).

Shortly after the report’s publication, President Nicolas Sarkozy’s office released a statement that Paris would look into the possibility of EDF buying a stake in Areva, a move long-resisted by Areva Chief Executive Officer Anne Lauvergeon.

This is high-stakes politics in France which gets 80 percent of its electricity from EDF’s 58 nuclear plants.

Paris’ influence in EDF has been growing over the past months. The utility’s Chief Executive Officer Henri Proglio, in place since last year, was heaved into his chair by Sarkozy. Proglio is to restore France’s position as a world-leading reactor exporter.

A major political scandal is engulfing President Sarkozy; French police have questioned a member of his cabinet.

Mr Sarkozy has also denied any wrongdoing.

Does Constellation CEO Mayo A. Shattuck mention any of this Parisian turmoil?  No.  Instead, he says the plant is endangered by the U.S. Department of Energy’s delay in granting a massive, taxpayer-backed loan guarantee for the project.  He seems to be bothered by the fact that the DOE is actually bothering to read Constellation’s application before approving it.

Ebony Meeks, a spokeswoman for the Department of Energy, said the agency understands Constellation’s frustration, but “our main priority is to be a steward of taxpayer dollars.”

Taxpayers should be grateful to the DOE.  EDF-Areva shenanigans aside, Calvert Cliffs III is a financially risky proposition.  No one has ever built a nuclear reactor in a “deregulated” wholesale market like PJM which Maryland is now part of.  All other nuclear plant have the backing of fully regulated utilities or publicly-owned utilities.  A nuclear plant represents a large “lump” of new power that will be dumped onto the PJM market in ten years’ time when the plant is finished.  What will happen to electricity prices?  Calvert Cliffs III will be burdened with debt and cost over-runs at that point.  Will it be viable without financial backing from U.S. and French taxpayers?  Shattuck knows it won’t be that’s why he’s complaining.

Meanwhile, on a serious note, French first lady Carla Bruni-Sarkozy is “struggling” with her cameo role in a new Woody Allen film, “with one scene requiring 35 takes” even though she has no lines.

Owen Wilson, who stars in the romantic comedy, reportedly offered support to the glamorous mother of one, who was watched from the sidelines by her husband, President Nicolas Sarkozy.

EDF has also been under attack for sloppy handling of nuclear waste.

Maryland Governor O’Malley has announced a new Long Term Electricity Plan for our state.  As the planning horizon extends to 2030 so it could be assumed that Calvert Cliffs III might be in operation, a careful assessment should be made of the political risks surrounding the French government’s investment in the plant.

Can we count on Calvert Cliffs III?

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Federal Law Requires a Full EIS for PATH

The Potomac-Appalachian Transmission Highline (PATH) will run for over 270 miles from the John E. Amos coal-fired power plant in West Virginia to a massive new transformer substation in Mt. Airy, Maryland.  The path of PATH cuts across National Forest and National Park property.  The National Park Service (NPS) is the lead federal agency charged with conducting an Environmental Impact Statement (EIS) under the National Environmental Policy Act (NEPA).

NPS is currently considering the “scope” of the EIS.  The  coal and power corporations pushing the transmission line would prefer a very narrow scope addressing only the impact of constructing the line within the federal property boundaries (a few miles at most.)

Opponents of PATH have pointed out that the transmission line will have extensive environmental impacts the largest of which are caused by the increased burning of toxic coal that will result if the line is put into operation.  We arrive at the question: Does NEPA permit an agency to define EIS scope narrowly or must it consider all of the environmental impacts of the proposed project?

This is not the first time this question has been raised.  Ever since its passage in 1970 (in the wake of the Santa Barbara oil spill), both agency bureaucrats and corporate developers have sought to grease the wheels of their pet projects by narrowing the scope of the EIS.  Time and again, the federal courts have corrected them.

A recent example is the judge’s decision filed March 15, 2010, in Manitoba v. Salazar challenging the NEPA process for a major water project in North Dakota.  The following are quotes directly from the judge’s order which cite the long string of federal court cases on this topic.

On the question whether the lead agency can pick and choose which envirnmental consequences it wants to consider and which it can exclude:

“NEPA has twin aims.” Balt. Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 97 (1983). “First, ‘it places upon an agency the obligation to consider every significant aspect of the environmental impact of a proposed action.’” Id. (quoting Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519, 553 (1978)). “Second, it ensures that the agency will inform the public that it has indeed considered environmental concerns in its decisionmaking process.” Id. These goals are “realized through a set of ‘action-forcing’ procedures that require that agencies ‘take a ‘hard look’ at environmental consequences,’ and that provide for broad dissemination of relevant environmental information.’” Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989) (quoting Kleppe v. Sierra Club, 427 U.S. 390, 410 n.21 (1976)). “Other statutes may impose substantive environmental obligations on federal agencies, but NEPA merely prohibits uninformed — rather than unwise — agency action.” Id. at 351.  [See page 10-11.]

Can the lead agency simply go through the motions of conducting an EIS or do they have to do a serious job?

“An agency’s primary duty under the NEPA is to ‘take a ‘hard look’ at environmental consequences.’” Pub. Utils. Comm’n v. FERC, 900 F.2d 269, 282 (D.C. Cir. 1990) (quoting Kleppe, 427 U.S. at 410 n.21). “Since NEPA requires the agency to ‘take a ‘hard look’ at environmental consequences before taking a major action,’ the judiciary must see that this legal duty is fulfilled.”6 Found. on Econ. Trends v. Heckler, 756 F.2d 143, 151 (D.C. Cir. 1985) (quoting Balt. Gas & Elec., 462 U.S. at 97-98); see also Sierra Club v. Peterson, 717 F.2d 1409, 1413 (D.C. Cir. 1983) (“the court must insure that the agency took a ‘hard look’ at the environmental consequences of its decision”). “Although the contours of the ‘hard look’ doctrine may be imprecise,” a court must at a minimum “‘ensure that the agency has adequately considered and disclosed the environmental impact of its actions and that its decision is not arbitrary and capricious.’” Nevada v. Dep’t of Energy, 457 F.3d 78, 93 (D.C. Cir. 2006) (quoting Balt. Gas & Elec., 462 U.S. at 97-98).  [See page 11.]

What about the problem of cumulative impacts?  Judge Collyer quotes from the federal regulations:

“Cumulative impact is the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions.” 40 C.F.R. § 1508.7. “Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time.” Id.  [See page 15.]

This certainly does not amount to an exhaustive analysis of the legal issues confronting the NPS as it considers the scope of the EIS.  However, those who argue that NPS must take a “hard look” at all of the environmental impacts of the project and their cumulative effect would seem to be standing on solid legal ground.

Judge Collyer’s decision was cited by Congressman Henry Waxman in his recent letter to Secretary of State Hillary Clinton regarding her agency’s draft EIS in the case of the Keystone XL pipeline project that will bring heavy crude oil from the tar sands of Alberta to Texas refineries.  (EPA has also weighed in.)  Clinton’s draft EIS excluded consideration of greenhouse gas emissions from the production of oil from tar sands.  Waxman opined:

As a matter of good government, it makes little sense to prepare an EIS, which has the sole purpose of ensuring that the government understands the environmental impacts of a proposed action, that excludes consideration of the primary environmental impact.

This same could be said of the NPS EIS for the PATH project.

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O’Malley and Markell Ask Obama to Help Spark Offshore Wind

Maryland Governor Martin O’Malley has teamed up with Delaware Governor Jack Markell in a letter to President Obama asking him to join their states in signing up for power from offshore wind.

The proximity of Washington, D.C., to the mid-Atlantic’s offshore wind resources, coupled with the number of federal agencies and military installations in and around the DC metropolitan region, creates an exceptional opportunity to forge a federal-state partnership for the development of a power-purchase agreement for offshore-wind generated energy.  Development of one gigawatt (GW) of wind energy in the mid-Atlantic region could lead to the creation of 15,000 to 20,000 clean energy jobs.

Recall just what is at stake here.  Earlier this year, a report from the Abell Foundation found that:

… Maryland’s feasible wind resource off of its Atlantic coast (including both state and federal waters) is large enough to significantly contribute to the electric demand in the state.  Using existing, proven technology (monopile; 5 MW turbines) and accounting for various social, environmental, and nautical exclusion zones and conflict areas, Maryland’s available offshore wind resource could provide 67% of the state’s electric load.

That’s just Maryland — the potential resource extends along the entire eastern seaboard and out to the edge of the Outer Continental Shelf.  In total, it is a truly massive “deposit” of energy that is clean and located close to our country’s major load centers.  It means many, well-paying local jobs into the bargain.

Unfortunately, this opportunity faces determined opposition from the fossil-fuel-burning power companies who prefer the existing arrangement.  They have stymied the Cape Wind project for nearly a decade and probably hope to do the same to offshore wind development elsewhere on the East Coast.

The fossil-fuel industry would much prefer to build new transmission lines westward from Maryland to the Ohio valley in order to ramp up production at toxic-coal-burning power plants.  “Coal-by-wire” projects with names like Path, TrAIL and MAPP are all part of “Project Mountaineer.”

O’Malley and Markell want federal agencies to sign long-term power purchase agreements to buy power from offshore wind and take other steps to clear the way.

We can debate climate policy forever — which is exactly what the toxic-coal industry would like us to do.  What really matters are the decisions that get made about the energy infrastructure we start building today.  So, which will it be, President Obama?

Coal-by-wire or offshore wind?

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