West Virginia Chamber Comments on the Standards of Performance for Greenhouse Gas Emissions from New Stationary Sources – Electric Utility Generating Units

The West Virginia Chamber of Commerce (the Chamber) provided comments on March 20, 2014, objecting to U.S. Environmental Protection Agency’s proposed new source performance standards relating to emissions of greenhouse gases from coal and natural gas electric generating units (EGU). See proposal, 79 Fed. Reg. 1430 (January 8, 2014).  The Chamber comments focus upon the concern that carbon capture and sequestration (CCS) does not qualify under the statutory test of a “best system of emission reduction” (BSER) that is both “achievable” and “adequately demonstrated” and that CCS cannot be implemented until critical state-level issues are resolved.

The Chamber conducted a survey of the law, rules, and policies of all 50 states to assess the status of State-level efforts to facilitate implementation of CCS.  The Chamber’s survey is available http://www.steptoe-johnson.com/news/wv-chamber-commerce-comments-standards-performance-greenhouse-gas-emissions-new-stationary.  The Chamber’s CCS Survey of the 50 states specifically addresses the following questions:

1.         Does the state have primacy to implement the Class VI UIC program related to the underground injection of CO2?

2.         Does the state specify what property rights must be secured for the geologic storage of CO2?

3.         Does the state have any streamlined procedures for the taking, unitization or use of property rights related to the geologic storage of CO2?

4.         Does the state provide for the mitigation of the long term post closure liabilities that are associated with facilities that store CO2 in geologic formations?

5.         Does the state have any streamlined procedures for the siting or construction of pipelines used to transport CO2?

The survey revealed that of the 50 states, no state has yet received delegation of the Class VI UIC program.   Only 12 states have addressed any of the remaining questions in a manner that would have applicability to a new coal burning EGU.

1.         Only 5 states have addressed what property rights must be secured for the taking of pore space.

2.         Only 7 states have developed any streamlined procedures for acquiring pore space.

3.         Only 4 states have developed any additional programs to address long term care.

4.         Only 12 states have provided any streamlined process for acquiring rights-of-way for CO2 pipelines.

The Chamber suggests that the absence of consistent state programs addressing property ownership and long term liability is significant. Additional state leadership is necessary before the commercial implementation of CCS is “achievable” or “adequately demonstrated” as those terms are applied consistent with Clean Air Act §111(a)(1).  There is still time to submit comments on the proposed rule, as the comment period remains open until May 9, 2014.

Laura Goldfarb helps clients resolve their environmental policy, regulation, and enforcement problems. Prior to joining Steptoe & Johnson, Ms. Goldfarb was Assistant Counsel at the West Virginia Department of Environmental Protection, where she represented the agency in a variety of matters relating to the state's environmental programs, and drafted regulatory and statutory environmental provisions for the State of West Virginia.
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