National Park Service Issues Final Environmental Statement on PP&L Susquehanna-Roseland Transmission Line Through Delaware Water Gap National Recreation Area

The National Park Service has published its Final Environmental Statement (FES) on the Susquehanna-Roseland Transmission Line through the Delaware Water Gap National Recreation Area. The FES effectively approves the utilities' proposed route of a new 500kV line across the Delaware Water Gap National Recreation Area, Middle Delaware National Scenic and Recreational River, and the Appalachian National Scenic Trail in Pennsylvania and New Jersey.

The final environmental statement confirms NPS's previous determination that the "no action" alternative is the environmentally-prefereable alternative, but determined that the utilities' proposed route - among six alternatives evaluated - is its "preferred alternative", assuming the incorporation of "critical mitigation measures."  The "preferred alternative" is the one “which the agency believes would fulfill its statutory mission and responsibilities, giving consideration to economic, environmental, technical and other factors.”

NPS made this determination despite finding that the proposed route "would cause significant adverse impacts to geologic resources; wetlands; vegetation; landscape connectivity, wildlife habitat, and wildlife; special-status species; rare and unique communities; archeological resources; historic structures; cultural landscapes; socioeconomics; infrastructure, access and circulation; visual resources; visitor use and experience; wild and scenic rivers; and park operations."

Specifically, among other impacts, the alternative will cause:

• conversion of 20.28 acres of forested wetlands to scrub shrub and/or emergent wetlands
• adverse impacts to 15.22 acres of Exceptional Value Wetlands and/or rare and unique wetlands
• clearing of 240 acres of vegetation, including 129 acres of mature forest
• adverse impacts to multiple archaeological sites, at least 17 historic structures, 18 cultural landscapes, including the Appalachian National Scenic Trail.

The FES articulates NPS's intention to require mitigation of adverse impacts where possible:

The NPS expects to conclude consultation by including in any ROD a binding commitment to the mitigation measures disclosed in this EIS, as required by 36 CFR § 1508.8. Mitigation measures specific to the impact topics, where applicable, are presented in appendix F. The NPS would also establish mechanisms to ensure that all mitigation obligations are met, mitigation measures are monitored for effectiveness, and unsuccessful mitigation is quickly remedied. In instances where impacts cannot be avoided and mitigation is not feasible, compensation for resources lost or degraded through project construction, operation, and maintenance would be required. Examples of items that cannot be remedied through mitigation include impacts that degrade the scenic and other intrinsic values of the parks or impacts that result in the loss of recreational use and visitor enjoyment.

The Final Environmental Impact Statement is available here.

Note: This is an update to our prior posts on this topic of January 21, 2010 and December 3, 2011.

Pa. Supreme Court Gives Victory to Mercury-Emitting Coal Power Plants; Invalidates State DEP Mercury Emission Limits

The Pennsylvania Supreme Court handed a victory this week to coal-fired electric generating facilities when it invalidated Pennsylvania's regulations limiting their emission of mercury.  In its December 23, 2009 decision, the Court found that the Pa. regulations could not stand after the legal basis for the rule - a federal EPA decision which provided for state regulation of mercury emissions from oil and coal-fired electric generating units - was invalidated by the U.S. Court of Appeals for the D.C. Circuit.Background. In 2005, the U.S. Environmental Protection Agency (“EPA”) issued a final "Delisting Rule" which removed oil- and coal-fired electric generating units (EGUs) from the list of mercury pollution sources regulated under the hazardous air pollutants provisions of section 112 of the Clean Air Act. (70 Fed. Reg. 15994-01 (03/29/2005)). However, the EPA did not abolish regulation of mercury emissions from oil- and coal-fired EGUs. Rather, it shifted the responsibility for the mechanics of the regulation to the states. To accomplish this shifting to the states, the EPA promulgated the Clean Air Mercury Rule (“CAMR”). 70 Fed. Reg. 28606 (5/18/2005). CAMR was predicated on the Delisting Rule and it established a mercury emission budget for each state and required each state to develop a program to regulate the mercury emissions from oil- and coal-fired EGUs.  Pennsylvania opted to develop a mercury regulation program that would keep emissions within the mercury budget set by the EPA and developed the PA Mercury Rule as the Pa. state response to CAMR. The PA Mercury Rule required, among other things, coal fired power plants to reduce their mercury emissions by 80% by January 2010.

EPA's decision to delist coal-fired electric generating stations from section 112's list of mercury sources was challenged in federal court. The D.C. Circuit Court of Appeals ultimately invalidated that delisting decision because EPA failed to follow the required delisting procedures. New Jersey v. Environmental Protection Agency, 517 F.3d 574 (D.C. Cir. 2008). The effect of that D.C. Circuit Court of Appeals decision was that EGUs remained listed as mercury sources under federal law, Section 112. The court also found that once the Delisting Rule was declared invalid, CAMR no longer had a legal basis and it vacated CAMR as well.

Because under the Pa. Air Pollution Control Act, DEP generally cannot regulate hazardous air pollutants which are federally regulated under Section 112 of the Clean Air Act, and the very basis for the Pa. Mercury Rule was EPA's delisting decision, the Pa. Supreme Court held that once the EPA delisting decision was invalidated by the D.C. Circuit Court of Appeals, the Pennsylvania state rule could not stand. 

Case: PPL Generation, LLC, et al., v. Commonwealth of Pennsylvania, No, 7 MAP 2009 (Pa. Supreme Court, December 23, 2009