GAO Reports on What Happens to All the Coal We Burn

And its not a pretty picture

In the flurry of Senate news, I overlooked the fact that the Government Accountability Office (GAO) issued a report last Friday on coal ash storage and disposal in the U.S. as requested by the Senate Environment and Public Works Committee and Committee on Oversight and Government Reform in the wake of last Christmas's devastating spill at a TVA facility in Kingston, Tennessee.

This earlier post on some testing EPA has ordered at an AEP coal ash storage facility on the West Virginia-Ohio border lays out part of the story. But the GAO's own summary does an admirable job of succinctly stating the bare facts:

(1) The exact number of surface impoundments at utility coal fired power plants is not known. However, the Environmental Protection Agency (EPA) is currently undertaking an effort to identify the number and location of all surface impoundments in the United States and, as of September 14, 2009, had identified over 580 surface impoundments nationwide.

(2) Problems that have been identified with the storage of coal ash include potential structural defects and other risks of collapse of the surface impoundment, such as at TVA Kingston Facility; health and environmental risks from [coal combustion residue] CCR storage due to potential leaching of contaminants into surface or groundwater from unlined or failed liners at surface impoundments, landfills, or sand and gravel pits; and potential risks from the discharge of wastewater containing CCR into surface waters from surface impoundments. EPA is currently analyzing the structural hazards and environmental risks associated with surface impoundments.

(3) EPA does not directly regulate CCR disposal in surface impoundments or landfills to prevent releases or a catastrophic spill, and states have a variety of regulatory controls on surface impoundments. EPA is developing proposed regulations but, as part of this effort, needs to address issues of federal and state roles for control and enforcement.

The full report, issued last Friday October 30th, can be read here. And an excellent overview of the findings from Facing South, here.

Now a Kerry-Lieberman-Graham Climate Bill is in the Works

And it won't have much to offer if you don't support offshore drilling or believe in "clean coal".

Tossing another layer on top of the anarchy that has erupted in the Senate Environment and Public Works Committee over the proposed Kerry-Boxer climate bill, Senator Kerry himself announced today that he would also be pushing a second climate bill on a "dual track" outside of the committee process, even as his first bill struggles forward. He will be working on this bill behind closed doors with Senators Graham (R, SC), and Lieberman (I, CT).

As this Washington Post article notes, other Senate committees have been working on their own climate bills as well, and all will have to be reconciled in the end. This just adds another to the heap. But the action by Kerry, who made his announcement alongside Senators Lieberman (I, CT) and Graham (R, SC) today, shows that Senate leaders don't have much faith that the Kerry-Boxer bill will win the necessary 60 votes in the end. (Or, you could look at all this with rose-colored glasses, like the Boston Globe, which is reporting that "Sens Kerry, Graham, Lieberman join forces to rescue climate bill.")

This country has a lot to do to curb GHG emissions, and strong federal mandates for renewable generation and energy efficiency should form the core of any good bill. Waxman-Markey emerged from the committee process in the House so badly weakened that environmentalists were privately dismayed, and publicly almost ready to withdraw support. So its a major (major) disappointment that the Senate may end up pitching more of the Waxman-Markey framework overboard. (Kerry-Boxer was 90% based on Waxman-Markey.) Even more worrisome, according to the Post "Graham said that the bill should protect the climate, but also allow for more offshore drilling, an expansion of nuclear energy and an emphasis on 'clean coal' technology." And Lieberman confirmed that the three were committed to a "cap and trade" scheme, "but noted that the scheme had 'a lot of moving parts you could negotiate on.'"

The Huffington Post does not mince words, reporting the story as "Kerry, Graham, Lieberman Working on Weaker Climate Compromise," here.

No New Environmental Appellate Decisions Today

USFW Proposes Listing Red-Crested Cockatoo

Yesterday, according to this press release, the US Fish and Wildlife Service issued a proposed rule listing the Indonesian Red-Crested Cockatoo as threatened under the Endangered Species Act after protracted foot dragging.

Another One Bites the Dust!

Environmentalists chalked up another victory on Monday when investors scrapped plans for the Big Stone II coal plant in South Dakota. MDU Resources group announced that they were not going ahead with their plan for a 500-600 MW coal-fired power plant because they were unable to find an investor to replace the lead developer, which pulled out in September, citing the economy and uncertainty about the cost of climate legislation.

Still Trying to Work

Senator Boxer and the Dems showed up again this morning, but the Republicans played hooky.

This morning, Senator Boxer reconvened a full business meeting of the Senate Environment and Public Works Committee, so that the Republicans who boycotted yesterday's meeting would have an opportunity to participate in the committee mark up. But the Republicans still didn't show.

No New Environmental Appellate Decisions Today

Senate Climate Bill Now at Least Seven Weeks Away

Harry Reid committed to five-week analysis period after bill gets through all committees to mollify Republicans

According to this Houston Chronicle article, Harry Reid (D, NV), told Barbara Boxer (D, CA), head of the Senate Environment and Public Works Committee that he will hold any climate bill to emerge out of her and other Senate committees for a five-week period so its economic costs can be fully analyzed. This should help Boxer possibly get the bill through committee today. (Though there was a near-total Republican boycott this morning, with only Senator Voinovich (R, OH) attending from the GOP to deliver this message, yesterday she promised that there would be opportunity to work on the bill through COB today.) It also answers the letter written by ranking Senate Republicans yesterday demanding further cost analysis. And it should temper concerns that Boxer's partisanism might sink the climate bill, as some say it did last year. (Politico ran a piece early this morning, warning what might happen if she rammed it through committee without GOP support, and minority members of EPW pointed that and six other pieces of analysis to that effect out here.)

Letters Flying at Senate EPW over Kerry-Boxer

Tomorrow, Dirksen 406, Squirt Guns

Ranking Republican Senators "of the committees with jurisdiction over portions of the [Kerry-Boxer climate change] bill" issued a letter today to Chairman Boxer (D, CA), urging further analysis of the economic impact of the proposed Kerry-Boxer climate change bill. These include Senator Inhofe (R, OK) of EPW, Lisa Murkowski (R, AK), from Senate Environment and Natural Resources, Saxby Chambliss (R, GA) (agriculture), Chuck Grassley (R, IA) (finance), and Kay Bailey Hutchison (R, TX) (commerce and transportation).

The full letter can be read here, and the press release here. An AP analysis of the letter can be read here.

Meanwhile, Chairman Boxer has responded to Senator Inhofe's threatened Republican boycott of the EPW committee meeting (mentioned in earlier posts here and here), with a letter of her own, on behalf of majority members of the committee, which says: "We urge Ranking Member Inhofe, with the utmost respect, to bring the Committee Republicans back to work on this issue. . . . We look forward to working with them if they decide to participate, but if they do not, we will move forward in accordance with the rules of the Senate and of this Committee."

According to Talking Points Memo, Senator Boxer "Boxer will begin the markup as planned Tuesday, but will extend the deadline for amendments until [COB], allowing Republicans who have boycotted the process to participate past the original deadline." TPM and Politico are also reporting that Boxer has offered to pause the markup process tomorrow afternoon so that another EPA official can answer any additional questions from the Republicans.

Senator Lautenberg (D, NJ), who made a lot of statements at last week's hearings on the Kerry-Boxer bill to the effect of "Come on, people, wake up!", told reporters that "[i]t's almost like school children over there" among EPW Republicans.

We should all look forward to what happens tomorrow. The committee meeting is scheduled for 9am in Dirksen 406.

No New Environmental Appellate Decisions Today

No new opinions issued from the U.S. Courts of Appeals in environmental law today.

Interior Continues Slow Process of Revoking Midnight Regulation on MTR

Advanced notice of proposed rulemaking won't result in rule until early 2011

In more regulatory activity, the Department of Interior, Office of Surface Mining Reclamation and Enforcement (OSM) announced its intention to issue an advanced notice of proposed rulemaking by the middle of this month for the rule meant to overturn the Bush Administration's December 2008 change in the Stream Buffer Zone Rule under the Surface Mine Reclamation and Enforcement Act (SMREA), 30 U.S.C. § 1292. That rule, they promise, will be out as soon as early 2011.

EPA Pushes Carbofuran off the Market

Pesticide that kills wild song birds one step closer to ban in U.S.

EPA announced Friday that it will not be granting an administrative hearing to FMC Corporation, the manufacturer of the pesticide carbofuran, over EPA's May 2009 final rule revoking food "tolerances" for carbofuran. See 74 FR 23046 (May 15, 2009). In an order signed on Friday, the Agency concluded that the regulatory standard for holding an evidentiary hearing was not met, and denied all objections to the revocation. (Objections had been submitted last June by the National Corn Growers Association, National Sunflower Association, National Potato Council, and FMC Corporation.) The decision means a ban on carbofuran on food crops will go into effect on December 31, 2009.

This decision has been years in the making. Under the Federal Insecticide, Fungicide and Rodenticide Act ("FIFRA" to close friends), folks in the Office of Pesticide Programs of the EPA cyclically review pesticides that are already "registered," or on the market for certain approved uses. It is almost impossible, given the political realities in the Pesticide Division and the elasticity of standards, to de-register a pesticide. But it is easier for to revoke a pesticide's food tolerance, i.e. an accepted residue level in which that pesticide may linger on our food, set under the Federal Food Drug & Cosmetic Act ("FDCA"). According to Friday's order, EPA--which administers the part of the FDCA relevant to pesticides--reached the conclusion that "[e]xposure to the pesticide carbofuran resulting from existing legal uses is unsafe . . . in 2006 after an exhaustive multi-year review of the data on carbofuran as part of [the FIFRA re-registration process.]"

I'm not that up-to-date on the science surrounding how much carbofuran remains on food. But what is clear is that carbofuran is super dangerous for wild birds in agricultural regions. Because its a neurotoxin, and would therefore attack farmworkers' nervous systems if administered in liquid form (i.e. sprayed on), carbofuran is made into little pellets that are planted alongside corn and other seeds. When birds come along to scratch around for the tasty corn seeds, they often eat the carbofuran pellets, too, resulting in major die offs. (This is why Defenders of Wildlife is applauding the decision in its press release, "EPA Sticks to its Guns on Plan to Bar Use of Deadly Pesticide.")

After its 2006 decision, EPA allowed FMC to submit more data. But it finally issued a proposal to revoke the carbofuran tolerances in July 2008. See 73 FR 44864 (July 31, 2008). Seeing the writing on the wall, FMC then said, well what if we agree to let our registration of carbofuran be partially cancelled, so that there won't be that much of it in the average American's diet anymore? (Or, technically, according to Friday's order, FMC "requested the cancellation of the registration of carbofuran on several crops and the restriction of where, and the manner in which, carbofuran could be used in the United States on its remaining registered crop sites."). EPA was unswayed by this last-minute generosity, calling the new parameters "irrelevant," and finalized its rule on May 15, 2009.

Friday's decision takes us one step further to getting carbofuran off the market. FMC immediately announced its intention to appeal the decision in federal court, complaining that "EPA's unprecedented attempt to deny any review of its science deprives the registrant and the growers who use carbofuran the right to prove that the product is safe, and represents a bold abuse of power in contradiction of the agency's earlier commitments to transparency and good science."

Update: The National Corn Grower's Association has opposed the move, as detailed in an article that can be read here.

Another Federalism Battle Brewing

On Friday, Delaware filed suit in the U.S. District Court for the District of Delaware to stop Army Corps (re)dredging the Delaware River for a shipping channel, as the Philadelphia Inquirer reports here, and the Delaware News Journal, here. The Army Corps says this is routine maintenance of an interstate shipping channel over which it has jurisdiction under the Commerce Clause, whereas Delaware is seeking to to protect its environment--including listed species under the federal ESA.

Delaware rejected the Army Corps' application under the state Subaqueous Lands and Wetlands Acts for the project in July, but the Army Corps decided to go ahead anyway on October 25, finding that the federal government's right to maintain navigability on interstate waterways trumps Delaware's rights in this case. Delaware is seeking an injunction to stop the Corps, saying that the "decision by the Army Corps of Engineers to begin deepening Delaware waters is a direct challenge to the territorial authority of the State of Delaware and violates federal and state law.”

The Delaware Attorney General's press release--in which he notes that New Jersey is also on board in the fight--can be read here.

[Update: New Jersey, at the behest of Governor Corzine, has joined Delaware in its actions, filing a suit in U.S. District Court in New Jersey. The Philadelphia Inquirer reports on this development, here.]

Predictions on Boxer and the Kerry-Boxer Bill

The Washington Post is reporting this morning that, to hedge her bets against Blue Dog Democrats who might sink the climate bill when it emerges from committee, Boxer made concessions on nuclear power in the Kerry-Boxer bill, here. The move, the article says, is meant to attract possible votes from moderate Republicans. Meanwhile, the Wall Street Journal confirms, here, that indeed, the Republicans are planning on boycotting tomorrow's Senate Environment and Public Works Committee Meeting, to try and keep Kerry-Boxer from emerging from committee at all. And, as Politico reports here, Boxer has a plan up her sleeve to push the bill out of committee, anyway.

No New Environmental Cases Today

The U.S. federal courts of appeal did not issue any opinions today in the environmental area.