Becker's Iowa Environmental Law Update : Iowa Environmental Lawyer & Attorney : Charles Becker : Belin McCormick P.C. Law Firm : IA Regulatory Compliance, Site Cleanups

Question: “Where is the logical place to install solar panels?”
Answer by most: “The desert.”
Answer by Dianne Feinstein: “Uhh . . . not so fast.”

Between 1999 and 2004, 600,000 acres of land in the Mojave Desert were acquired by an environmental group and donated to the Federal Bureau of Land Management. There are now 14 solar energy and five wind energy projects that are seeking to construct renewable energy projects on the land.

California Senator Feinstein, a supporter of climate change legislation, is introducing legislation to prohibit the use of the land for solar or wind projects. In her words:

The Catellus lands were purchased with nearly $45 million in private funds and $18 million in federal funds and donated to the federal government for the purpose of conservation, and that commitment must be upheld. Period.

It seems to me that someone might argue that Ms. Feinstein’s definition of “conservation” is pretty narrow. Isn’t the opportunity to create renewable energy a conservation purpose? Won’t wind and solar energy help to conserve other resources, like coal and clean air? If less oil is used, aren't we conserving natural resources? 

Comments made by the Senator indicate that her objection may be to the aesthetics of the proposals. Solar panel facilities and wind farms are big and visable. For some they are beautiful, for others they are ugly. According to a group that discussed the matter with Ms. Feinstein, she seemed concerned about the visual effect of huge solar farms on Route 66, the highway that runs through the Mojave.

If aesthetics begin to control the debate on locating renewable energy facilities, the winners will be the climate change objectors. They’ll sit back and watch the environmental advocates shoot at each other. For example, Ms. Feinstein’s position, which has already resulted in two major solar projects being canceled, has prompted Robert F. Kennedy, Jr. to say: “This is arguably the best solar land in the world, and Senator Feinstein shouldn’t be allowed to take this land off the table without a proper and scientific environmental review.” Governor Schwarzenegger, trying to increase the use of renewable energy in California to 33% by 2020, said: “If we cannot put solar power plants in the Mojave desert, I don’t know where the hell we can put it.” Bear in mind, these voices are supposedly on the same side. 

This is one of those climate change issues that the environmental activists and climate change proponents need to get resolved quickly. Those promoting renewable energy need to understand that allowing aesthetic considerations is a sure fire way to severely limit solar and wind from the renewable energy mix because there will always be those (frequently powerful individuals) who will say that big and shiny is ugly. Without those options, what is left is primarily coal and nuclear. While that certainly is an approach that will be supported by Lamar Alexander and John McCain, I’m fairly certain it’s not what climate change advocates are contemplating.
 

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Recently, EPA promulgated new regulations for stormwater discharges from construction sites which, for the first time, will place a numeric limit of 280 NTU on discharges from those sites during construction. The regulations have drawn criticism but, since they will be phased in over four years, it is unlikely that any change will be made in the near future. Apparently not satisfied with addressing the runoff from construction sites, EPA has indicated that it will consider limitations for runoff which occurs at construction sites after completion of the development (otherwise known as post-construction runoff discharge). That is, EPA is considering requiring significant limits and the maintenance of controls on stormwater coming off of newly developed and redeveloped sites which will be regulated forever, not just during the period of construction.

To have a sound basis for these limits, EPA needs to collect information. It is proposing to do this by distributing a questionnaire to about 1000 developers. EPA plans to mail the 61-page questionnaire around April 2010 for response within 60 days. A response will be mandatory and failure to respond could result in civil or criminal enforcement.

The questionnaire is designed to collect financial, environmental and technical data about projects covering the period of 2005 to 2009. Some of the information to be collected includes:

1. The company’s balance sheet and income statements for 2005-2009;

2. For 10 completed projects, the Notice Of Intent permit number, number of acres, start and end dates of the projects, types of soils and capital costs for each project;

3. Land acquisition, development, financing and sales costs for each project.

A signed certification stating that the responder is aware that there are “significant penalties for submitting false information, including the possibility of fines and imprisonment” is found at the end of the form. EPA’s own estimate is that the information collection will cost just over $4,000,000 and will take the typical company 53 hours to complete the questionnaire.

I understand that EPA has broad power to obtain information.  Usually that power is used when a company is suspected of wrongdoing, but that isn’t what is happening here. EPA is trying to do a study to see if the required placement and maintenance of controls for stormwater being discharged from a development . . . forever . . . can be justified. You’ll need to determine for yourself whether the data being collected will aid in making that determination.

In any event, if you want to be heard on whether this is a good way for EPA to determine whether if, and to what degree, stormwater runoff controls and limits should be imposed after a project is completed, now is your chance. You have until December 29, 2009, to give EPA your 2¢ worth.  It may be the best 2¢ you ever spent.

Related Post: New Stormwater Regulations Rain Down on Developers

                     The Train's A-Comin': More Stormwater Rule Changes

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While the discussions in Copenhagen move forward in fits and starts, it appears that serious progress is being made on the home front.  On December 10th, Senators Kerry, Lieberman and Graham held a press conference to announce that they are going to propose climate change legislation designed to garner the necessary 60 (and perhaps more) votes.  Draft legislation was not produced by the trio, but a written statement setting out the framework of the upcoming legislation was provided.  There were three areas of discussion that I found particularly interesting.

First, nuclear power is a go.  John McCain and Lamar Alexander required this and Graham, while discussing it, said that we will need 117 nuclear plants and that "the nuclear power industry represents the best of American jobs that will never go overseas."  It will be interesting to see how much the industry will need to be subsidized to make it viable.

Second, the Midwestern politicians who want assurances that their constituents will not be penalized for having relied on coal for their energy source in the past, will be satisfied.  During the move to cleaner energy, there will be "transitional assistance to households and businesses to ease the shift to a low-carbon economy." In other words, energy costs in the Midwest are not going to be disproportionate to the rest of the country.   

Finally, and most surprising to me, was the declaration by the Senators that they will be "ensuring a future for coal."  In their words:

Our country has plentiful, accessible coal resources and infrastructure.  It is a key component of our current fuel mix. . . .  Coal's future as part of the energy mix is inseparable from the passage of comprehensive climate change and energy legislation.  We will commit significant resources to the rapid development and deployment of clean coal technology, and dedicated support for early deployment of carbon capture and sequestration. 

In no uncertain terms, the Senators are stating that significant support will be given to ensuring that coal will be part of the mix of energy production going forward. Those that like to argue that "clean coal" is an oxymoron have been heard and their position has been rejected.  From a political point of view, it was a bold, and necessary, declaration.

The statements made by Senators Kerry, Lieberman and Graham offer  renewed hope that something will actually get done in the near term.  Extremists have been angling for an opportunity to say that we should blow everything up and just start over because they didn't get what they wanted.  At least these three Senators recognize that that isn't progress, it's capitulation. Now we'll see if they can find another 57 like-minded votes.

RELATED POSTS:  Fairness In Allocating Greenhouse Gas Allowances

                             Will Nuclear Power Be Part Of The Solution?

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Stormwater runoff from construction sites has been an area of environmental regulation that received only passing attention until sometime around 2004.  In that year, EPA inspected a large retail facility, found multiple violations and imposed heavy fines.  Since then, EPA has expended significant resources to ensure compliance with the regulations. 

In 2008, EPA determined  that the existing regulations were insufficient and proposed additional  regulations.  The proposed rules were put out for public comment and on November 23, 2009,  EPA handed down new, technology-based guidelines. For developers and home builders, it wasn’t good news. The new regulations, found at 40 C.F.R. Part 450, impose two new requirements:

1.    Construction site owners and operators that disturb one or more acres must use best management practices to ensure that soil disturbing during construction activities will not pollute nearby waters;

2.    Construction sites that disturb 20 acres or more at one time (later being reduced to 10 acres) must monitor discharges from the site and prevent discharges that exceed 280 nephelometric turbidity units (NTUs) from leaving the site.

The second requirement sets out, for the first time, a numeric standard on discharge from construction sites. EPA’s original proposal was to have a numeric limit of 13 NTUs, which is a very clean discharge. During the comment period, EPA was informed that a limit of 13 NTUs would increase the cost of construction by $15,000 to $45,000 per acre. The final standard of 280 NTUs, while more lenient, will add some significant costs to new construction.

A few items of note about the 280 NTU limit:

1.   If the rainfall is in excess of the 2-year, 24-hour storm event, then the limit does not apply.  In effect, such a large rainfall is treated as a bypass event;

2.    If less than 20 acres (or, later, 10 acres) is disturbed at one time, then the limit does not apply.  As soon as a developer goes over 20 acres of open area, the limit kicks in until there is a drop below 20 acres, in which case the limit no longer applies;

3.    In counting the 20 (or 10) acres, the develop must count all of the acres within the same common plan of development or sale even if the open acres are not contiguous;

4.    The developer can test the effluent multiple times over the course of the day, but the average of those test results must be less than 280 NTUs to avoid a violation;

5.   The BMP requirement applies at all times and is not tied to the 280 NTU limit.

Because the new requirements are a significant departure from the existing regulations, they will be phased in:

1.    Construction sites that disturb 20 acres or more at one time will need to monitor beginning 18 months after the effective date of the rule;
 

2.    Construction sites that disturb 10 acres or more at one time will need to monitor beginning four years after the effective date of the rule.

For states that have not been delegated NPDES authority and that use the federal storm water construction permits (Idaho, Massachusetts, New Hampshire, New Mexico and the District of Columbia), this means that the monitoring will begin August 1, 2011, and February 1, 2014. States that have been granted authority and periodically receive approval for the program will have a delay of the effective date. In the past, EPA has allowed the states to phase in new rules in accordance with their permit renewal dates. For example, Iowa’s storm water construction permit will be renewed on or about October 1, 2012. Therefore, Iowa’s compliance dates for the new requirements could be April 1, 2014, and October 1, 2016. We’ll have to wait to see if this interpretation is allowed for these new rules.

The changes imposed by the new rule couldn’t have come at a worse time, but, to some extent, EPA had no choice. The rule changes were in response to a court order that compelled EPA to makes changes by December 1, 2009. The question that remains is whether the new rules are sensible. That question is for another post.

RELATED POSTS: Stormwater Regulation of Developed Sites Coming?

                             The Train's A-Comin': More Stormwater Rule Changes  

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“Fairness” is a relative, not an absolute, concept.  If this was not the case, lawyers would be out of a job.  Apparently, this truism can also apply to senators.

With Copenhagen fast approaching, climate change legislation will again be the topic of the day.  Cap-and-trade language, as currently proposed in both the House and the Senate, allocates free CO2 allowances to electrical distributors based on a 50/50 formula; that is, 50% on total emissions and 50% on total energy sales. Under this formula, utilities that are more coal dependent will need to purchase more allowances than they would if the allowances were allocated based only on emissions, and those higher costs will be passed on to their customers.

Fourteen Democratic senators, from coal-dependent, Midwestern states, have written a letter to Senate Democratic leaders requesting that the 50/50 formula be changed to base the allowances solely on emissions.

The effect of using the 50/50 formula is that those states that have historically relied more heavily on coal-fired electrical generation, such as Iowa, North Dakota, Wisconsin, Minnesota, Illinois and Colorado, will pay significantly more for future power, during the transition period to cleaner energy, than under a 100% emissions formula.  The fourteen senators argue that  legislation must equitably distribute transition assistance across individuals, states and regions.  Put another way, they are saying that in this transition period, we should not penalize one group or geographic area, so the 100% emission formula is the "fair" thing to do.

There are, of course, those who disagree.  They argue that the purpose of the legislation is to create financial incentives to switch to lower-carbon fuel sources, so causing higher costs to higher polluting states, is, in fact, “fair” and appropriate.  It is, in their view, not proper to let one group be bailed out for relying so heavily on coal-fired energy in the past.

So who's right?  Like most arguments that address fairness, it all depends on where you stand.

If you believe that cleaner energy is something that had to happen last week and that we must mandate an immediate change, then it would be “fair” to force the higher expense of cleaner energy on one group. If you believe that it will take some time to wean ourselves away from using coal as the primary form of electrical generation (which we have used for more than 125 years), then it would be “fair” to attempt to make the transition less painful as proposed by the senators.

Which view should prevail?  That's for you to decide, but let me add two pragmatic considerations to the mix.

First, despite the best efforts of all concerned, coal will be with us for a long time. It will likely get cleaner but, due to cost and increases in demand for electricity, it will be a significant part of the mix, along with increasing use of solar, wind, geothermal and hydro. In fact, the U.S. Energy Administration expects coal to account for 47% of U.S. electricity in 2030, which is a 2% decrease from the present.

Second, in this age when a Senate majority requires 60 votes, can 14 votes be ignored?
 

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