PCA, UMWA Misleading Courts, Public; Federal Court Filings Contradict State Lobbying

28 April 2006

The Pennsylvania Coal Association and United Mine Workers of America are saying different things simultaneously in two different forums in deciding now to oppose the commonwealth's state-specific mercury reduction proposal in favor of the U.S. Environmental Protection Agency's Clean Air Mercury Rule.

It recently, and disturbingly, has come to light that PCA and UMWA are pursuing legal challenges to EPA's final rule and submitting documents in a federal court of law that are completely at odds with statements both groups are making to the public and the Pennsylvania Legislature in recent days supporting state legislation that would impose that same federal rule on Pennsylvanians.

Indeed, the court filings, completely contradicting the groups' lobbying position in the state legislature, are signed by the very same attorney who testified on behalf of PCA and UMWA before the House Environmental Resources and Energy Committee in February. Rule 11 of the Federal Rules of Civil Procedure prohibits the filing of untruthful, unfounded or frivolous claims in U.S. courts.

"This is cause for grave concern," Environmental Protection Secretary Kathleen A. McGinty said today during testimony before the Senate Environmental Resources and Energy Committee. "Either untruths have been represented by PCA and UMWA in a federal court of law, or the two groups are now misrepresenting the facts before the public and legislature.

"There is no way to reconcile the trade associations' vehement opposition to EPA's rule in federal court filings with their equally vehement and contradictory statements in the councils of state government," McGinty said. "PCA and UMWA should be called to account for their statements before the federal court and this General Assembly."

In filings in ongoing legal proceedings before the U.S. Court of Appeals for the District of Columbia Circuit, PCA and UMWA are claiming that EPA's rule will "result in a vast wealth transfer from bituminous coal users to subbituminous and lignite users," and further will have "adverse and irreversible impacts on the Bituminous Coal Coalition member operations, mine production, mine workers and local economies dependent upon coal mining operations."

Characterizing EPA's rule as illegal, arbitrary and capricious, wholly unwarranted and flawed, PCA and UMWA are advising the court that it will harm "producers of bituminous coal, workers in bituminous coal mines and local economies supported by bituminous coal mining."

To bolster their argument, PCA and UMWA point to the implementation of the federal acid rain program and underscore the economic devastation that unfolded because of provisions that encouraged fuel switching. The fuel switching cost "tens of thousands of eastern mining jobs in the 1990s, and a shift of more than 100 million tons of annual coal production from eastern to western states."

PCA and UMWA also joined DEP in June 2004 to ask EPA to drop plans that would put Pennsylvania coal at a disadvantage. Although DEP, PCA and UMWA disagreed on key aspects of EPA's rule, the groups were in total agreement on the overriding fact that the federal agency's prejudicial treatment of Pennsylvania coal was harmful to the state's economy.

"EPA's proposed rule would put Pennsylvania at a competitive disadvantage and harm the state's economy by requiring more stringent emissions standards for cleaner-burning bituminous coal mined in Pennsylvania than for coal mined in the West," the joint letter said. "While the commonwealth, PCA and UMWA disagree on some key aspects of EPA's proposed rule, we agree on one overriding fact: the prejudicial treatment of Pennsylvania coal as represented in this proposed rule is seriously injurious to our state's environment and economy."

Despite these strong statements against the fuel-switching provisions included in EPA's final rule, both PCA and UMWA now are taking positions in support of legislation that would impose the federal plan in Pennsylvania.

"One is left sadly to conclude that there is a lack of candor and truthfulness in the positions and representation of PCA and UMWA," McGinty said. "PCA and UMWA need to decide whether they stand behind the comments they made and continued to defend in a federal court of law, or if they stand behind the testimony they presented and continue to promote to the Pennsylvania General Assembly."

Governor Edward G. Rendell's state-specific plan is designed specifically to overcome the provision in EPA's final mercury rule that disadvantages electric generating units that use bituminous coal. The federal rule requires little or no reductions from units using subbituminous coal mined in the West and places the most stringent requirements on coal mined here in Pennsylvania.

Because of the disparities in the final federal emission standards, owners of coal-fired units that generally burn bituminous coal could comply with the final mercury emissions standards simply by switching fuels or burning subbituminous coal. The federal rule encourages fuel switching and establishes western subbituminous coal as a compliant coal. The result is a very real and significant economic dislocation for the Pennsylvania coal industry.

EPA's plan also threatens the viability of Pennsylvania's new waste coal power plants. Waste coal boilers, using advanced combustion technology, are among the lowest emitters of mercury on a pounds-per-megawatt scale for coal-fired electric generation. The federal rule imposes tougher standards on new waste coal facilities than any other type of coal-fired power plant in the nation.

Pennsylvania's proposed state-specific rule preserves the market share for bituminous coal by presuming compliance for electric generating units that burn 100 percent bituminous coal with advanced air control technologies. Governor Rendell's proposed rule will make it tougher to switch fuels, protecting and growing the market for Pennsylvania coal.

"No doubt PCA and UMWA will say in their defense that they have substantive concerns with the rule Governor Rendell has proposed," McGinty said. "But, if true, that means they should engage in the public process provided to shape that rule. It in no way excuses a strategy that would saddle Pennsylvania with a federal rule that they so intensely decry."

The following are excerpts from various filings that PCA and UMWA have before the U.S. Court of Appeals for District of Columbia Circuit:

-- "Once utilities choose compliance options adverse to bituminous coal,

impacts on mine production, mine workers and local economies can be

permanent --- mines may be abandoned and jobs lost."

-- "Portions of the Clean Air Mercury Rule (CAMR) are wholly

unwarranted, unsubstantiated and favor subbituminous and lignite coal

interests to the great detriment of bituminous coal interests."

-- A central concern with CAMR lies in "EPA's arbitrary and irrational

use of 'allowance allocation adjustment factors' to establish

individual unit allocations and state emission budgets." This

provision encourages fuel switching by rating coal types differently.

"Quite simply, EPA's use of these adjustment factors is entirely

misplaced in CAMR's cap and trade system and lacks any viable support

in the record."

-- "This arbitrary allocation of budgets will result in a vast wealth

transfer from bituminous coal users to subbituminous and lignite

users."

-- "However, these estimates are only a small part of the adverse

impacts the flawed rule will have on producers of bituminous coal,

workers in bituminous coal mines and local economies supported by

bituminous coal mining."

-- "Fuel switching due to the Acid Rain program had serious adverse

consequences for bituminous coal producers and their workers, costing

'tens of thousands of eastern mining jobs in the 1990s, and a shift

of more than 100 million tons of annual coal production from eastern

to western states.'"

-- EPA's rule contains provisions under which "subbituminous and lignite

coal users are substantially favored over bituminous coal users."

-- "UMWA submits that EPA acted arbitrarily and capriciously, or

otherwise unlawfully and inconsistently with the Clean Air Act in

promulgating these allowance allocation adjustment factors in several

respects."

-- "These decisions will likely have adverse and irreversible impacts on

the Bituminous Coal Coalition member operations, mine production,

mine workers and local economies dependent upon coal mining

operations."

Details about Pennsylvania's state-specific mercury reduction plan are available on DEP's Web site at http://www.depweb.state.pa.us, Keywords: "Mercury Rule." For a transcript of the Secretary's testimony, use Keyword: "Testimony."

EDITOR'S NOTE: This release is the fifth in a series to address key issues regarding Pennsylvania's state-specific mercury reduction proposal. Visit the department's Web site at http://www.depweb.state.pa.us for all the releases and related articles.

CONTACT: Kurt M. Knaus of the Pennsylvania Department of Environmental Protection, +1-717-787-1323.

Source: prnewswire

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