Ohio Environmental Law Blog : Ohio Environmental Lawyer & Attorney : Joseph Koncelik : Frantz Ward Law Firm : Environmental Regulation, Land Use, Compliance : Cleveland, Ohio

Ohio's best hope for reducing its overwhelming dependence on coal for electricity generation is  biomass.  While wind and solar have significant benefits, it is unquestioned that current technology does not allow these renewable sources to be forms of base-load power generation. 

Biomass does have that potential in Ohio, as is evidenced by the recent announcements of the conversion of 312-megawatt First Energy's Burger coal-fired power plant to biomass generation.  Now that proposal is meeting opposition by environmental groups. As reported in Biomass Magazine:

The Ohio Environmental Council and Consumers’ Counsel have asked the Public Utilities Commission of Ohio to reject FirstEnergy’s request for classification of its project as a renewable energy facility on the grounds that it has not provided enough information to warrant the qualification...The two agencies are now requesting dismissal of the application altogether.  “The whole state could be deforested to produce energy for this one project.” (attorney OEC)

Opposition to the First Energy proposal will undoubtedly make movement toward biomass as a replacement for Ohio's coal dependence much more difficult. 

Studies have confirmed that biomass presents the best hope for Ohio re-aligning its generation portfolio. A 2004 study by The Ohio State University analyzed the potential of biomass as an source of electricity generation in Ohio:

Recent studies illustrate that Ohio as a relatively large biomass resource potential.  Among the 50 states, Ohio ranks 11th in terms of herbaceous and wood biomass and 4th in terms of food waste biomass.  As a result, using renewable biomass fuels in Ohio could lead to an estimated 27.6 billion in kWh of electricity, which is enough to fully support the annual needs of 2,758,000 average homes, or 64% of the residential electricity use in Ohio.

Now a new study calls into question a long held belief regarding the benefits of biomass power. It has always been assumed that biomass is better than fossil fuels in reducing greenhouse gas emissions. The assumption is based upon the "carbon cycle:"

Through photosynthesis, biomass removes carbon from the atmosphere, thus reducing the amount of atmospheric carbon dioxide, a major contributors to global warming.  When biomass is burned to produce energy, the stored carbon is released, but the next grown cycle absorbs carbon from the atmosphere once again.  (Public Utilities Commission of Ohio Webpage on Biomass Energy)

A new study now questions the "carbon cycle" benefits of biomass power.  It comes from a State that has historically been a very strong supporter of biomass energy- Massachusetts.   The Biomass Sustainability and Carbon Policy Study, released in June 2010, addresses the following issues:

• Sustainable forest management and ecological implications of biomass harvesting
• Carbon sequestration of forests with and without forest management
• Net effect of biomass energy on atmospheric carbon balance
• U.S. and international policies in regard to biomass and carbon neutrality

The study concludes that use of forest biomass actually has greater emissions of CO2 (a greenhouse gas) than commonly utilized fossil fuels.  The chart below from the study shows forest biomass (wood) generates 31% more CO2 than coal.

Does the conclusions of this study mean Ohio should no longer consider biomass as having the best renewable energy potential?

I don't think that is the case.  As discussed numerous times on this blog, the cost of coal is going to increase as a result of ever tightening environmental requirements (ozone & fine particle standards, MACT (mercury), revamped CAIR).  This doesn't even include eventual climate change regulations that target reductions from existing sources. Therefore, there is a very strong incentive for Ohio to continue to quickly re-balance its power generation portfolio. 

 Certainly the other benefits of biomass remain unquestioned.  These include:

• Renewable resource- sustainability of the resource
• Non-CO2 pollutant reductions
• Only alternative energy source with immediate base-load power potential

While development of biomass continues to make sense, it is important to continue to question assumptions regarding any alternative resource.  The recent Massachusetts study is worthy of consideration when making strategic decisions regarding re-balancing Ohio's generation portfolio.

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The latest developments in the saga involving current hearing process in the Ohio Environmental Review Appeals Commission (ERAC) shows chaos rains for the hundreds of appeals pending before the Commission.  As previously covered on this blog (see, A Dozen Companies File Constitutional Challenges to 1-hour Hearings), in response to legislative deadlines imposed on the Commission, ERAC has scheduled or has proposed to schedule 1-hour hearings with no discovery on ALL pending appeals.

Businesses as well as environmental groups were very concerned with ERAC's approach.  The first legal challenge to be filed sought a writ of mandamus from the 10th Appellate Court to compel ERAC to provide for full blown hearings (de novo hearings).  The State, attorneys for ERAC and the attorneys for the 13 companies negotiated an uncontested motion for the writ.  Despite the uncontested nature of the motion, the Court issued a ruling declining to issue the writ.  However, the ruling contained some non-binding language (dicta) regarding due process rights:

Indeed, the clear legal right and clear legal duty identified are uncontroversial-relators have a right to de novo hearings that comply with due process, and the Commission has the duty to provide for such.

Despite the language in the order, ERAC continued to proceed with holding 1-hour hearings.  I even heard a story of one attorney who tried to put a witness on to introduce evidence only to be cut-off after thirty minutes by the Commission telling them "your time is up." 

The attorneys representing the original 13 companies followed the Appeals Court advice and filed a declaratory judgment action in common pleas court.  Shortly after the suit was filed, the Court issued a temporary restraining order (TRO) against ERAC preventing the Commission from holding any of the 1-hour hearings in the 40 upcoming hearings involving the 13 companies.

Even after the TRO was obtained, ERAC continued to proceed with 1-hour hearings in cases that were not covered by the Order.  Chairwoman of the three-member commission, Lisa Eschleman, was quoted in the Columbus Dispatch as saying:  "ERAC is going to proceed as scheduled so that we can comply with the mandate of the General Assembly," 

Because ERAC is continuing to proceed with 1-hour hearings on appeals not involving the 40 subject to the TRO, each Appellant is being forced to go to the Court and request their own TRO. Others have elected just to proceed with 1-hour hearings probably betting that the decision will be overturned on appeal because due process was not provided.

If companies and environmental groups are both upset with the current process, why hasn't the State which represents Ohio EPA and the Ohio Department of Agriculture (among others) been vocal?  I have been told that one reason the State is not objecting to ERAC's process is that the whole mess has forced settlement of a lot of pending appeals.  Another reason for the lack of concern maybe that 1-hour hearings make it much more likely that the decision of the State Agency will be upheld due to the limitations on presenting evidence.

Hopefully, the Court will issue a decision in the declaratory judgment action that results in a permanent fix- restoring full hearings on appeals.  Until such a decision is issued, the situation involving the hundreds of appeals before the Commission remains in a state of flux. 

Meanwhile, the outcry has grown (including me) that the real solution to this problem is to fund ERAC who has a tiny budget. Only problem- where do you get the money in a State which is facing a $1 billion dollar hole in their current budget.  On Tuesday, the Columbus Dispatch issued a editorial against legislative deadlines and supporting more funding:

"Such a delay demands further explanation, but arbitrarily rationing time before the commission is unreasonable. Lawmakers should consider whether the three-person commission, which has only two additional employees, needs more help. Unlike other such boards, ERAC members conduct all their own hearings, do their own legal research and write their decisions."

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This fall Ohio EPA Division of Surface Water (DSW) has been releasing a series of intertwined rule packages that govern streams and discharges to waterways.  Some business groups have said that the packages represent the most significant overhaul of water regulations in thirty years.

  To date, 3 out of 4 packages have been released:

1. Antidegredation Rule
2. Water Quality Standards
3. Section 401 Water Quality Certification Rule
4. Stream Mitigation Rule (to be released in early 2009)

No doubt the packages are highly technical and cover a myriad of issues.  But what are the implications for businesses in Ohio?

 Boiling down the packages, here are the major changes:

• Creation of a new State Water Quality Permit for impacts to streams
• Complete overhaul of mitigation requirements for stream impacts
• Comprehensive tightening of standards for discharges to water ways (will result in more stringent discharge permits for businesses)
• Standards for drainage ditch maintenance
• Phase out of open lake disposal for dredged sediment from ship channels by the Army Corps of Engineers
• Introduction of a nutrient standard for newly constructed or modified wastewater treatment plants

STATE WATER QUALITY PERMIT

I already discussed the new State Water Quality Permit in a prior post.  I believe Ohio would be the first state in the Country to create a state permit for impacts to streams that are not covered by the Clean Water Act.  The State is reacting to a series of Supreme Court decisions which have reduced federal jurisdiction over waterways and wetlands.

WASTEWATER DISCHARGE STANDARDS

Ohio EPA is proposing to tighten standards for some 135 chemicals.  They are also proposing to revise the human health criteria applied to NPDES discharge permits.  The more stringent standards will be incorporated into NPDES permits after they are renewed (NPDES permits have a 5 year life cycle).  Depending on the business and the nature of their discharge, the tighter standards could result in significant upgrades to wastewater treatment plants. 

The biggest question from business groups regarding the strengthening of water quality standards is....Why  now?   Many of the revised standards were part of U.S. EPA updates from 2000. 

MITIGATION FOR STREAM IMPACTS

For wetland impacts, Ohio mitigation requirements are very straightforward and are set forth in rules.  The ratios for required mitigation and the quality of wetland mitigation is all tied to the class of wetland impacted (Ohio classifies wetlands as either Class I, II or III).

Stream mitigation requirements are not straightforward.  Ohio EPA's stream mitigation requirements have been described by developers as a "black box."   The fact is mitigation is decided on a case by case basis, and lack of consistency is a legitimate concern.  To address this longstanding issue, Ohio EPA is attempting to clearly defined mitigation requirements for streams. 

Each of the four packages contain some aspect that is relevant to stream mitigation requirements.  However, until Ohio EPA releases the main rule package on stream mitigation requirements it will be difficult to see how the pieces fit together.  However, certain aspects of the rules that have been release foreshadow what is coming:

• Primary Headwater Habitat Designation- Ohio EPA creates this new designation and creates three classes based on the quality of the stream.  For lower classes, the focus of the designation is hydrology and not aquatic life.  This sets up mitigation requirements.  If you impact a Class I stream by moving or filling it, you will have to restore the hydrology lost as part of your mitigation.
• "Upland Drainage" and "Water Conveyance" Designations- applies to drainage ditches (or what Ohio EPA refers to as "historically channelized watercourses").  The purpose of these new designations for ditches is to encourage better management practices, such as natural stream design when performing maintenance on ditches.  
• "No Net Loss" Principle Applied to Streams-  A legal issue surrounds the amount of impacts that are allowed under antidegredation principles to streams versus wetlands.  For wetlands, there has been a "no net loss" that actually allows destroying an entire wetland if its value is replaced through mitigation.  There is an open legal question as to whether the same flexibility exists for streams.  Ohio EPA is proposing to settle that issue by bringing the "no let loss" principle to streams.

DRAINAGE DITCHES

A source of major controversy in Ohio has been poorly maintained drainage ditches (see the Ohio Environmental Council web page).  Through mother nature's influence over time, drainage ditches can become valuable headwater streams. The controversy occurs when a farmer or County engineer wants to dredge a ditch for drainage or flood control that has not been maintained for many years.  Will the rules even allow them to perform that work if the stream has become a valuable resources, such as a warmwater habitat stream?

NUTRIENT STANDARDS

For the first time in Ohio, the Agency is proposing to require treatment standards for nutrients.  Nutrients, such as phosphorus and nitrogen, are one of the most significant causes of water quality impacts in the State (U.S. EPA Nutrient Website for background).  The Agency is proposing to take a step in the direction of regulating this pollutants by requiring treatment for nutrients as part of Best Available Demonstrated Control Technology (BADCT) that will apply to new wastewater treatment plants or modifications to the biological treatment process of an existing plant.

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