RMMLF Energy Law Newsletter

(By Joseph K. Reinhart, Sean M. McGovern, Gina N. Falaschi and Christina Puhnaty)

On August 21, 2021, the Pennsylvania Department of Environmental Protection (PADEP) issued a draft revision of its technical guidance that explains PADEP’s considerations when evaluating liners and cap systems installed at coal refuse disposal areas pursuant to 25 Pa. Code chs. 86, 88, and 90. See PADEP, Draft TGD No. 563-2112-656, “Liners and Caps for Coal Refuse Disposal Areas” (Aug. 21, 2021) (Draft TGD). These systems of liners and protective caps, called “barrier layers,” are intended to prevent adverse impacts to groundwater and surface water and to prevent precipitation from coming into contact with coal refuse by preventing or reducing water migration through the refuse material. See 25 Pa. Code §§ 90.50(a)–(b), .101–.102, .122. As noted in the preamble for the rulemaking that established section 90.50(b), “[t]his statutory requirement was intended to ensure that precipitation contacting the coal refuse is kept to a minimum, thereby reducing the volume of water needing treatment after the site is closed.” 31 Pa. Bull. 3735, 3736 (July 14, 2001). PADEP noted that this draft technical guidance document, when finalized, would not mandate that existing structures be replaced or retrofitted.

PADEP’s current guidance serves as a guide for the use of liners for impoundments, stockpiles, and coal refuse disposal areas. See PADEP, TGD No. 563-2112-656, “Liners and Caps for Coal Refuse Disposal Areas” (July 17, 2021). PADEP’s draft revision of this technical guidance is significantly different from the current guidance in that the revised draft guidance incorporates protective caps and emphasizes PADEP’s preference for barrier layers constructed using synthetic material rather than clay. The draft guidance explains PADEP’s characterization of the differences between these two types of low permeability/impermeable barrier layers: “low hydraulic conductivity” soils (i.e., clay) and synthetics. Synthetics include flexible polymeric sheets or flexible membrane liners. PADEP considered the appropriateness of these materials for both liners and caps at coal refuse disposal areas. According to PADEP, clay may be used if the material is of a specific quality and consistency, and PADEP considers the use of clay liners appropriate where the liner system will not be subject to continual hydraulic head conditions. The agency listed coarse refuse facilities, temporary storage areas, and outslopes of refuse facilities as such locations. Draft TGD at 1–2.

Similarly, PADEP concluded that “clay caps are generally unsuitable for circumstances with high hydraulic head conditions, for slurry impoundments, or as a permanent cap for any coal refuse,” and encourages synthetic liners in these situations. Id. at 2. PADEP lists “erosion prevention, cracking and deterioration from exposure, anticipated activity or construction on the final capped area, settlement, and shifting” as considerations when choosing caps, and notes that “clay soils are susceptible to drying out over time,” which can result in vegetation root systems penetrating the caps. Id. at 7.

The draft guidance further explains that PADEP considers synthetics to be “the best and most practical choice to prevent precipitation from coming into contact with the coal refuse to the maximum extent practicable” due to synthetic material’s durability and longevity. Id. at 3. As noted above, the relevant regulatory provisions were “intended to ensure that precipitation contacting the coal refuse is kept to a minimum.” Id. at 6. The draft guidance recommends synthetic barrier layers under high head slurry impoundment coal refuse disposal areas where water has the potential to be held against the liner system for an extended duration (high head conditions). Id. at 3. PADEP notes in the draft guidance that it will consider other technologies that meet or exceed the requirements of the guidance. Id.

The draft guidance then sets forth standards for both liners and caps that can further aid facilities in determining the type of barrier layer appropriate for a coal refuse disposal area. Id. At 4–9. The draft guidance also explains what information applicants should submit to PADEP when proposing to install barrier layers at their facility. Id. at 9–10. Finally, the draft guidance explains what information regarding its barrier layers applicants should submit to PADEP during PADEP-approved periods of temporary cessation exceeding 90 days. Id. at 11. Several statutory provisions require site operators to seek PADEP approval when temporarily halting operation of a coal refuse disposal area for a period longer than 90 days. See 25 Pa. Code § 88.310(k)(1), 90.122, .167. The draft guidance provides that, during these periods, operators must demonstrate to PADEP that the site has the appropriate controls in place to minimize the extent of precipitation reaching the coal refuse disposal area. Draft TGD at 11.

Pursuant to the Coal Refuse Disposal Action Plan approved by the U.S. Office of Surface Mining Reclamation and Enforcement (OSMRE) on August 19, 2019, PADEP was projected to complete its revision of this guidance document by December 31, 2020. See Coal Refuse Disposal Action Plan, Action Plan ID: PA-EY2020-002 (Aug. 19, 2019) (on file with author). This deadline has since been extended by OSMRE to June 30, 2022. See Letter from Ben Owens, OSMRE, to William S. Allen, Jr., PADEP Bureau of Mining Programs (Dec. 14, 2020) (on file with author). These documents are also available at https://www.odocs. osmre.gov/.

EQB Publishes Proposed Changes to RACT Requirements for Major Sources of NOx and VOCs

On August 7, 2021, the Environmental Quality Board (EQB) published a proposed rule to amend 25 Pa. Code chs. 121 and 129 to address 2015 8-hour National Ambient Air Quality Standards (NAAQS), which is commonly known as the RACT III rule. See Additional RACT Requirements for Major Sources of NOx and VOCs for the 2015 Ozone NAAQS, 51 Pa. Bull. 4333 (proposed Aug. 7, 2021). The Pennsylvania Department of Environmental Protection (PADEP) developed the rule in response to the U.S. Environmental Protection Agency’s (EPA) October 26, 2015, revision to the primary and secondary NAAQS for ozone. See NAAQS for Ozone, 80 Fed. Reg. 65,292 (Oct. 26, 2015) (to be codified at 40 C.F.R. pts. 50–58). Under section 110 of the Clean Air Act, 42 U.S.C. § 7410, states are required to reevaluate reasonably available control technology (RACT) requirements each time the ozone NAAQS are promulgated for nonattainment areas. Because Pennsylvania is in the Ozone Transport Region, RACT is applicable to nitrogen oxides (NOx) or volatile organic compounds (VOCs) across the commonwealth.

The proposed rulemaking would add the terms “combustion source” and “natural gas compression and transmission facility fugitive VOC air contamination source” to the definitions in 25 Pa. Code § 121.1. The addition of these terms supports proposed chapter 129 amendments adopting presumptive RACT requirements and emission limitations for certain major stationary sources of NOx and VOCs in existence on or before August 3, 2018.

Comments on the proposed rule were due on October 12, 2021, and the Pennsylvania Independent Regulatory Review Commission was required to provide comments by November 12, 2021. PADEP intends to finalize the rule in the first quarter of 2022 with compliance anticipated to begin on January 1, 2023. EPA will review the proposed rulemaking for approval as a revision to Pennsylvania’s state implementation plan following promulgation of final-form rulemaking.

PADEP’s RGGI Rule Nears the End of the Rulemaking Process

As reported in previous editions of this Newsletter, the CO2 Budget Trading Program rulemaking is a proposal by the Pennsylvania Department of Environmental Protection (PADEP), pursuant to Governor Tom Wolf’s 2019 executive order, to join the Regional Greenhouse Gas Initiative (RGGI). RGGI is a regional cap-and-trade program for carbon dioxide (CO2) emissions from fossil fuel-fired electric generating units with a nameplate capacity of 25 megawatts or greater. See Vol. XXXVIII, No. 3 (2021), Vol. XXXVIII, No. 2 (2021), Vol. XXXVIII, No. 1 (2021), Vol. XXXVII, No. 4 (2020), Vol. XXXVII, No. 3 (2020), Vol. XXXVII, No. 2 (2020), Vol. XXXVII, No. 1 (2020), Vol. XXXVI, No. 4 (2019) of this Newsletter. At its July 13, 2021, meeting, the Environmental Quality Board debated and voted 15-4 to adopt the final CO2 Budget Trading Program regulation. On September 1, 2021, the Independent Regulatory Review Commission (IRRC) approved the regulation by a vote of 3 to 2.

Following IRRC approval, the final-form rulemaking was sent to the Pennsylvania House and Senate Environmental Resources and Energy standing committees. On September 2, 2021, the Pennsylvania House Environmental Resources and Energy Committee passed a resolution disapproving the regulation. On September 14, 2021, Pennsylvania’s Senate Environmental Resources and Energy Committee also passed a resolution disapproving the regulation. The full Senate voted in favor of the resolution on October 27, 2021, and, if the resolution also passes in the House, it will be presented to Governor Wolf.

The Governor is expected to veto any disapproval measure, which then would require a veto-proof majority from the legislature to override the veto and block the regulation. If the legislature is unsuccessful in blocking the regulation, it will be submitted to the Office of the Attorney General for review, and if approved, published in the Pennsylvania Bulletin as a final rule.

The Governor intends to finalize the regulation by the end of 2021 and regulated entities could be required to begin compliance on January 1, 2022. Legal challenges to the rule are anticipated. Further information regarding the rule can be found on PADEP’s RGGI webpage at https://www.dep.pa.gov/ Citi zens/ climate/Pages/RGGI.aspx.

Wolf Administration Releases Statewide Climate Change Action Plan

On September 22, 2021, Governor Tom Wolf released the Pennsylvania Climate Action Plan 2021. In accordance with the Pennsylvania Climate Change Act of 2008 (Act 70 of 2008), 71 Pa. Stat. §§ 1361.1–.8, the plan must be updated every three years. The Pennsylvania Department of Environmental Protection (PADEP) and the Climate Change Advisory Committee developed and presented the 2021 plan to the Governor. It outlines a plan to reach the goal that the Governor set in 2019 to reduce greenhouse gas (GHG) by 26% by 2025 and by 80% by 2050 from 2005 levels. It also identifies GHG inventory, forecast, and reduction efforts, GHG emission reduction strategies, GHG reduction modeling results, and adaption opportunities, and recommends legislative changes to achieve identified goals.

PADEP and the Climate Change Advisory Committee also produced an overview of the plan. See Climate Action Plan 2021 Overview (Sept. 2021). This overview compiles the strategies that government, industry, business, and community organizations can immediately implement to reduce GHG emissions suggested in the plan. Some of the proposed strategies, which focus on both existing programs and emerging technologies, include:

  • joining the Regional Greenhouse Gas Initiative and Transportation Climate Initiative Program to cap carbon emissions from the transportation and electric generation sectors;
  • adopting codes for new buildings that go above and beyond standard codes, increasing training for inspectors on existing building codes, and establishing a commercial building energy performance program to accelerate energy efficiency;
  • expanding the provisions of Act 129 of 2008 to increase the annual energy savings targets for electric distribution companies and developing a similar program for gas utilities;
  • increasing the Alternative Energy Portfolio Standards to require electricity generators to get more of their energy from clean renewable sources;
  • amending the Pennsylvania Clean Vehicles Program to increase the availability of light-duty electric vehicles through a rulemaking that would establish a requirement for automakers to include light-duty electric vehicles as a percentage of their model offerings;
  • refunding the Pennsylvania Sunshine Solar Rebate Program for homeowners and small businesses;
  • incentivizing battery storage at the grid level;
  • assessing the potential role of alternatives to natural gas;
  • pursuing carbon capture, use, and storage technologies for emissions from fossil fuel combustion source points;
  • using direct air capture systems to remove existing atmospheric carbon dioxide;
  • implementing strategies to increase peak load management and keep the grid in balance as more renewable electricity comes online; and
  • ensuring that climate action statewide is informed by the work of the PADEP Environmental Justice Office.

A copy of the plan and additional information is available on PADEP’s Pennsylvania Climate Action Plan website at https://www.dep.pa.gov/Citizens/climate/Pages/PA-Climate-Action-Plan.aspx.

Copyright © 2021, The Foundation for Natural Resources and Energy Law, Westminster, Colorado