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December, 2008 Ninth Circuit (California) Romoland School Dist. v. Inland Empire Energy Center, LLC, __ F3d __ (9th Cir. 2008), 2008 WL 4911830 The Romoland School District in Riverside County, California brought suit against Inland Empire Energy Center, LLC (IEEC) under the citizen suit provision of the Clean Air Act (CAA) in an attempt to halt construction of an 810-megawatt power plant approximately 1,100 feet from Romoland Elementary School. IEEC, a wholly-owned subsidiary of General Electric Company, moved to dismiss the suit under Federal Rule of Civil Procedure 12(b)(6) based on lack of district court jurisdiction over the suit because IEEC maintained a permit under Title V of the Clean Air Act. According to IEEC’s motion, such permits may not be challenged in civil or criminal enforcement proceedings in federal or district court under 42 U.S.C. § 7604. IEEC’s motion to dismiss was granted by the district court and the school district appealed to the Ninth Circuit. In an opinion published on November 18, 2008, the Ninth Circuit affirmed the dismissal and held that the permit’s validity could be challenged only pursuant to provisions of Title V of the CAA, and not by the CAA’s citizen suit provision. Eastern District of Tennessee (Knoxville) Sierra Club, et al. v. National Coal Corporation, 3:2008cv00410 (E.D.Tn.)On October 6, the Sierra Club, Save Our Cumberland Mountains, and the Tennessee Clean Water Network filed a lawsuit against National Coal Corporation (NCC) based on allegations that NCC has and continues to dump large amounts of selenium into Eastern Tennessee waterways from its Zeb Mountain Mine. Water quality tests conducted in early 2008 by the groups bringing the lawsuit have allegedly shown amounts of selenium above legal limits flowing away from the mine. According to the plaintiffs, selenium can cause “hair and fingernail loss, kidney and liver damage, and damage to the nervous and circulatory systems.” Axel Ringe, Water Quality Chair for the Tennessee Chapter of the Sierra Club, noted that “the recent discovery of selenium discharges just makes it even more urgent that this largest coal mine in Tennessee gets cleaned up.” Southern District of West Virginia (Huntington) Ohio Valley Environmental Coalition, et al. v. United States Army Corps of Engineers, et al., Slip Copy, 2008 WL 4810800 (S.D.W.Va. 2008) (Civil Action No. 3:08-0979) On October 31, a federal district judge in West Virginia blocked a U.S. Army Corps of Engineers permit for a mountaintop removal mine along the Clay-Nicholas County line in West Virginia. U.S. District Judge Robert C. Chambers granted a preliminary injunction requested by an environmental group, but suspended parts of it to allow the coal producer, Fola Coal Company, to mine coal until a trial on the merits can be held. Judge Chambers recognized the delicate balance in West Virginia between the necessity of the coal industry to the state’s economy and the potential for environmental damage if left unchecked. “I am certain that most citizens in West Virginia recognize both the contribution of coal to our economy and the value of this state’s tremendous natural resources,” Chambers wrote. “These interests are not mutually exclusive, and achieving a balance which advances both is the goal of the statutes implicated in this action.” Federal Environmental Appeals Board In re Deseret Power Electric Cooperative, PSD Appeal No. 07-03 (Nov. 13, 2008) A three-judge Environmental Appeals Board (EAB) panel rejected an EPA permit request for a new coal-fired power plant in Utah. Deseret Power’s 110-megawatt Bonanza Plant is planned to be built along the Utah-Colorado border, but the EPA permit contained no proposed carbon dioxide controls. In its November 13, 2008 ruling, the EAB stated that the EPA had no valid reason to not limit greenhouse gas emissions from the plant using the “best available control technology.” According to Bruce Niles, director of the Sierra Club’s National Coal Campaign, which challenged the permit, “building new coal plants without controlling their carbon emissions could wipe out all of the other efforts being taken by cities, states, and communities across the country.” An attorney who represents power plant developers and utilities stated that the ruling was “a common act by the EAB” and that “the remand is really a procedural outcome that is silent as to any particular regulatory outcome.” California Public Utilities CommissionSan Diego Gas and Electric’s (SDG&E) request for approval to construct the 150-mile Sunrise Powerlink Transmission Project (Sunrise) through Anzo-Borrego Desert State Park hit a snag when an Administrative Law Judge (ALJ) tentatively rejected the plan on October 31. Supporters of the utility’s proposal to build a new transmission line about one-hundred and fifty (150) miles from Imperial County argue that it would bring electricity from renewable energy sources, such as solar and geothermal while opponents claim the real reason is to transmit power from a Mexican plant owned by the utility’s parent company, Sempra Energy. The proposed decision sponsored by the assigned ALJ denies SDG&E’s application for a number of reasons.
An alternate proposed decision was tentatively approved by Utility Commissioner for the California Public Utilities Commission (CPUC). The Commissioner would approve, with conditions, an alternative route for the power line which avoids the State Park and to all tribal lands. The full commission is anticipated to vote on whether to approve the project early this month. MSHA Holds E-Hearing on Proposed Rule to Require Comprehensive Drug and Alcohol Testing for MinersE-Hearing: On October 14, MSHA held a public hearing by video webcast in three cities and by telephone in four others on its proposed rule to require alcohol and drug testing programs at all mining operations. This initial e-hearing was described as a logistical nightmare. In Alabama, of the 300 miners who arrived for the hearing at MSHA’s district office, only approximately 50 were permitted into the office at a time. Participants in West Virginia, Washington D.C., and Pennsylvania also experienced problems relating to the lack of accommodations. Many interested persons had to wait in overflow rooms because capacity for the video e-conference rooms was too small. To accommodate miners who were not allowed to participate or hear the initial proceeding, MSHA conducted a second hearing on the proposed rule on October 28. The agency used telephone links to three remote locations. Many speakers criticized the e-hearings departure from a traditional face-to-face hearing format. MSHA extended the comment on the rule until November 10. Proposed Rule: MSHA’s proposed rule would require all U.S. mine operators to adopt the Department of Transportation’s one-hundred (100) page regulation on drug-and alcohol-testing. The National Mining Association and other industry representatives generally found the proposal to be intrusive and prescriptive. At the hearing, a number of speakers testified that the proposed rule would likely weaken their companies’ own existing anti-drug and alcohol programs. Mine operators also objected that the proposed rule would 1) conflict with state laws; and 2) would contradict the doctrine of at will employment because the proposal would prohibit firing a miner the first time he or she tests positive. Among other criticisms with the proposed rule, speakers raised issues related to the potential for abuses of privacy, retaliation, and concerns that company-appointed physicians would have access to miners’ medical files. The period for public comment on the proposed rule ended on November 10. MSHA Issues First-Ever “Pattern of Violations” Notice to Virginia Mine OperatorThe U.S. Department of Labor’s Mine Safety and Health Administration (MSHA) issued its first-ever “pattern of violations” notice to a mine operator, the agency announced on November 13. Patriot Mining, LLC, of Wise County, Virginia received the notice after failing to significantly reduce its violation frequency rate during an evaluation period. Although the pattern of violations enforcement sanction procedure has been available since 1978, it was not systematically used until June 2007 when the agency began to notify operators that they were potential targets of such notices. During the next inspection of Patriot’s mine, MSHA will have to issue an Order withdrawing miners from the affected area for each significant and substantial (S&S) violation discovered. The withdrawal order can only be lifted after the condition has been corrected. Patriot will be removed from a pattern of violations when an inspection of the entire mine is completed and no such violations are found or no withdrawal order is issued by MSHA within ninety (90) days of the issuance of the pattern notice. Forty-three (43) mine operators have been notified thus far of their potential pattern of violations. According to MSHA, all of the operators, except Patriot, have made “significant” improvements. Federal Energy and Regulatory Commission (FERC) Issues Policy Statement on ComplianceFERC recently issued a supplemental Policy Statement on Compliance with its rules and regulations. The statement allows for the reduction, or even elimination, of civil penalties based on violations of FERC rules if the violator has made a diligent attempt at compliance. Specifically, the statement says that the reduction in penalties for a violation is available if a company acts “aggressively to adopt, foster, and maintain” a culture of compliance and it relies upon “rigorous procedures and processes that provide effective accountability for compliance.” In determining whether to impose a penalty or not, FERC will look to “four hallmarks of effective compliance practices:”
Last month, the Minerals Management Service (“MMS”) initiated the first step for a potential lease sale (Lease Sale 220) off the coast of Virginia for oil and natural gas drilling. MMS published a Call for Information and Interest/Nominations and a Notice of Intent to Prepare an EIS (Call/NOI) for Lease Sale 220 in the Federal Register last month. Approximately 2.9 million acres off the shore of Virginia in the Mid-Atlantic Outer-Continental Shelf Planning Area is covered under the Call/NOI. The area contemplated is at least fifty (50) miles offshore. The MMS has estimated that the area may contain 130 million barrels of oil and 1.14 trillion cubic feet of natural gas. The MMS has emphasized that the Call is not an announcement of its commitment to hold the Lease Sale, but rather is the first step in the process of gathering information, evaluation and public participation. The proposed sale is scheduled for 2011. Comments on the Call/NOI will be open until December 29, 2008.
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