Emergency Application — West Virginia, et al., Applicants v. Environmental Protection Agency, et al.

Supreme Court briefJul 23, 2024

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IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

STATE OF WEST VIRGINIA, et al.

Petitioners,

No. 24-1120

UNITED STATES

ENVIRONMENTAL

PROTECTION AGENCY, et al.,

Respondents.

DECLARATION OF LAURA M. CROWDER IN SUPPORT OF

PETITIONERS’ MOTION FOR STAY PENDING REVIEW

AND FOR AN ADMINISTRATIVE STAY

I, Laura M. Crowder, hereby declare and state under penalty of perjury that

the following is true and correct to the best of my knowledge, based on my personal

knowledge and information provided by West Virginia Department of

Environmental Protection (WVDEP) personnel:

My name is Laura M. Crowder, and my business address is 601 57th

Street SE, Charleston, WV 25304. I am over the age of eighteen, I have personal

knowledge of the subject matter, and I am competent to testify concerning the

matters in this declaration.

I have served as the Director of the West Virginia Division of Air

Quality (WVDAQ) since May 11, 2019. I have an electrical engineering degree from

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the West Virginia Institute of Technology. My job responsibilities include

overseeing the West Virginia air quality program, the purpose of which is to protect

human health and the environment by maintaining air quality standards, limiting

harmful emissions, and providing transparent information to the public about air

quality conditions.

My opinions in this declaration have been informed by briefings from

the WVDAQ professional engineering, legal, and technical staff, meetings with

other stakeholders concerning the proposed and Final Rule, and discussions with

other West Virginia officials and employees.

Purpose of Declaration

I am submitting this declaration in support of West Virginia’s motion

to stay the final rule, published by the Environmental Protection Agency (EPA) on

May 8, 2024, titled “New Source Performance Standards for GHG Emissions from

New and Reconstructed EGUs; Emission Guidelines for GHG Emissions from

Existing EGUs; and Repeal of the Affordable Clean Energy Rule,” 89 Fed. Reg.

39,798 (May 8, 2024) (Final Rule). The Final Rule is EPA’s final action after it had

published the May 2023 carbon dioxide (CO2) emissions standards for fossil fuelfired EGUs under §111 of the Clean Air Act and reviewed comments from the

WVDAQ and other stakeholders.

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State Regulation

The mission and vision of the WVDAQ is to achieve and maintain such

levels of air quality as will protect human health and safety, and to the greatest

degree practicable, prevent injury to plant and animal life and property, foster the

comfort and convenience of the people, promote the economic and social

development of this state, and facilitate the enjoyment of the natural attractions of

this state.

It is the WVDAQ’s responsibility to ensure that the air in West Virginia

meets public health and welfare standards established under the federal Clean Air

Act (CAA), including the relevant standards of performance for greenhouse gas

(GHG) emissions for electric generating units promulgated by the EPA.

The GHG standards are promulgated by the EPA in 40 CFR Part 60

Subparts TTTT and UUUUa for new and existing affected sources, respectively,

under the CAA.

The WVDAQ promulgates legislative rules pertaining to air quality

standards, develops state implementation plans to meet the federal standards, works

to obtain EPA approval of state plan elements, issues pre-construction and operating

permits to stationary sources, and ensures compliance with state and federal air

quality rules.

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To date, the WVDAQ has begun evaluating the Final Rule, including

estimating the number of electric-generating units affected by the Final Rule and has

begun considering how to incorporate the Final Rule into legislative rules and a state

plan.

10.

The WVDAQ estimates that the Final Rule will affect 19 EGUs in West

Virginia. Importantly, the WVDAQ doesn’t know if any West Virginia coal EGUs

have set retirement dates. Such plans are normally confidential business information

and the WVDAQ only knows such plans once a public retirement announcement or

a PJM request to deactivate are made. No deactivations of West Virginia generation

assets are currently on file with PJM.

a. In regulatory filings with the Securities and Exchange Commission

(SEC) in February 2024, however, FirstEnergy forecasted the Fort

Martin facility to retire in 2035 and the Harrison facility to retire in

2040.

b. Grant Town’s power purchase agreement with FirstEnergy expires by

2036. Grant Town management has stated FirstEnergy currently has no

interest in renewing or extending the agreement. Without the

agreement, Grant Town has no transmission path to the electrical grid.

c. American Electric Power has not publicly stated any intention to retire

its John Amos, Mountaineer, and Mitchell facilities.

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d. Dominion Energy has not publicly stated any intention to retire its

Mount Storm power station.

e. Omnis Fuel Technologies recently acquired the Pleasants Power

Station and plans to convert the facility boilers to burn hydrogen

produced from a pyrolysis-based graphite production facility to be built

on-site using a blend of coal and natural gas. This process would emit

significantly less CO2 than the existing coal combustion configuration.

If successfully constructed, such a facility would pose many questions

concerning CO2 emission regulations in light of the Final Rule.

f. Longview Power has not publicly stated any intention to retire its

EGUs.

11.

All coal-fired EGUs are major sources with Title V Permits. WVDAQ

has a commitment to EPA to inspect all major sources a minimum of every two

years.

CCS systems and their appurtenances will add to the permitting and

inspection burdens.

12.

In West Virginia, a state plan receives binding legal authority only once

the West Virginia Legislature develops and passes a special kind of regulation called

a legislative rule that adopts the emission guidelines. The Legislature meets for only

sixty consecutive days of the year beginning in January (on gubernatorial years like

2025 it begins in February). The Legislature’s legislative rulemaking process can

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take up to 18 to 24 months. For the 2025 legislative session, draft DEP legislative

rules are due to DEP General Counsel by May 10, 2024. The Final Rule was signed

April 24, 2024, and did not include a federal model rule for states to adopt. It is not

feasible to propose a legislative state rule for the 2025 legislative session. WVDAQ

cannot propose a new legislative rule until the 2026 legislative session at the earliest

with an effective date of June 2026 if passed by the legislature and signed by the

Governor. Considering performance standards required by the Final Rule will likely

require multiple enforceable retirement deadlines, I cannot predict whether the

Legislature will pass a state rule.

13.

West Virginia’s state legislative rule for greenhouse gas emissions,

which adopted EPA’s Affordable Clean Energy (ACE) Rule, took 24 months to

complete. The rule included time for stakeholder engagement during the drafting of

the rule. It was later repealed based on court decisions.

14.

While WVDAQ has the authority to promulgate an emergency rule, it

requires an expiration date which renders it non-approvable for inclusion in a state

plan. Additionally, emergency rules require a duplicative process and must pass

exactly as proposed which would be unlikely because there is not a model rule to

adopt.

15.

West Virginia previously submitted a partial state plan for greenhouse

gas emissions for one coal fired EGU and was the only state in the country to submit

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a state plan. We estimated it took 5 full-time equivalent persons to develop the state

plan over an 18-month period. This state plan relied on standards of performance

developed and required under the DAQ construction permitting program as the legal

authority. The state plan was later withdrawn by West Virginia following vacatur

of the underlying federal ACE rule by the courts.

16.

The resources to develop a comprehensive state plan to include 19

units located at nine sites, will be exponentially higher than the previously submitted

partial state plan for one coal-fired EGU at one site. Each of the 19 units will need

to be identified as either (a) a unit that will commit to cease operation by January 1,

2032 and willing to take a federally enforceable limit to permanently shut down prior

to that date; (b) a “medium-term” unit which will take a federally enforceable limit

to cease operation before January 1, 2039 and convert their operation to co-fire with

natural gas by January 1, 2030; or (c) a “long-term” unit with a rate based on 90%

capture of CO2, an unproven technology for coal-fired EGUs, by January 1, 2032.

Like the ACE partial state plan, a case-by-case analysis of each EGU will be required

to develop the standard of performance. I cannot predict with any certainty whether

the Legislature will have the time or political will to pass a state legislative rule with

forced permanent closure dates for coal-fired plants.

17.

A state plan that receives EPA approval must :

a. Identify all affected EGUs and identify the subcategory for each EGU;

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b. Include inventory data for each affected EGU including the nameplate

capacity, the base load rating, and five years of CO2 emissions data

provided on a quarterly basis;

c. Impose emission standards for each affected unit;

d. Establish enforceable requirements to permanently cease operations for

certain subcategories;

e. Establish increments of progress (IOP), which include deadlines and

reporting requirements corresponding to requirements for each

subcategory. For the long-term subcategory using carbon capture, the

IOP requires dates to submit a control plan by, completion of awarding

contracts, initiation of on-site construction, completion of on-site

construction, commencement of permitting actions, CO2 injection

location, and compliance with the emission standard;

f. Establish reporting obligations and milestones for affected EGUs that

will demonstrate compliance by permanently ceasing operations;

g. Identify all applicable test methods, monitoring, recordkeeping, and

reporting requirements for each affected unit;

h. Describe the process, contents, and schedule for a state reporting to

EPA;

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i. Develop additional specific requirements for existing coal-fired steam

generating EGUs;

j. Establish requirements for owners to establish a publicly accessible

“Carbon Pollution Standards for EGUs Website” and post relevant

documents;

k. Develop optional requirements which may include provisions for

compliance date extensions, short-term reliability mechanisms, and

reliability assurance mechanisms.

l. Conduct one or more public hearing(s);

m. Establish compliance schedules;

n. Conduct remaining useful life demonstrations for any affected unit with

a less stringent standard and developing corresponding operating

condition requirements;

o. Demonstrate legal authority for the State to implement the state plan

p. Correlate emission rates with the applicable performance standard;

q. Meaningfully engage with stakeholders. Stakeholder engagement is, of

course, important. But it takes significant agency time and resources—

especially because, here, the Final Rule is vague about exactly what

constitutes meaningful stakeholder engagement;

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r. Demonstrate the state plan is projected to achieve required emissions

performance;

s. Show that each affected unit’s emission standard is quantifiable, nonduplicative, permanent, verifiable and enforceable; and

t. Identify other specific requirements for the state plan.

18.

To comply with the Final Rule’s state-plan timeline, the WVDAQ will

have to begin working—i.e., expending resources—immediately.

19.

The WVDAQ works with complicated environmental laws and

regulations every day. But this is one of the most complex, byzantine regulations

the WVDAQ has been subjected to. Because of the breadth and complexity of the

Final Rule, West Virginia’s state plan will require unprecedented coordination

between the WVDAQ, the West Virginia Governor, the West Virginia Public

Service Commission, West Virginia’s public utilities, and PJM, the regional

transmission organization that coordinates electricity in all or parts of 13 states

(including West Virginia) and the District of Columbia.

20.

Storing CO2 in geological reservoirs requires Class VI injection wells,

which are currently permitted only by the EPA (except in three states). EPA still

has primacy over Class VI wells and regulated sources in West Virginia would

therefore be required to obtain these permits from EPA.

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21.

To comply with the CCS mandate, it’s almost certain that coal-fired

EGU owners will have to secure state permits—for example, construction or

environmental permits. The owners would be required to modify their existing air

quality permit to add a new technology which could take 6 months. Updating these

WVDAQ permits will consume WVDAQ resources. In addition to the WVDAQ

permit, a pipeline permit for the CO2 line and a carbon injection permit would likely

be required.

22.

The WVDAQ does not have the resources to devote to drafting a state

plan and corresponding legislative rule to comply with the Final Rule and its related

regulations in the timeframe allotted. Currently, the WVDAQ has 75 employees.

Based on its experience developing a GHG legislative rule and partial state plan for

EGUs, the WVDAQ estimates that implementing the Final Rule within the proposed

24-month compliance period would take up to 95 full-time-equivalent persons,

assuming all units are long-term. That’s over double our current staffing levels and

would cost approximately $9.67 million dollars—assuming we could fill the

openings. West Virginia simply does not have the resources, money or prospective

personnel.

23.

Several questions need to be answered immediately.

Initial

involvement would include developing a survey to engage with the utilities to

identify known retirement plans, capabilities for converting to natural gas co-firing,

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and capabilities to meet the 90% carbon capture emissions rate to understand which

subcategories of sources are needed to develop a state plan. Data will need to be

reviewed to calculate base-line emission rates for affected EGUs to make decisions

regarding developing emission standards, including whether to establish per EGU or

on an aggregate basis. Drafting a state rule to implement the Final Rule will also be

an early step; however, the rule may depend on decisions from utilities that may not

yet be available.

24.

Compounding these challenges, WVDAQ is going to be facing

mounting costs from several other EPA regulations released in the past year or two.

The WVDAQ is also required to implement a state plan to implement the GHG

emission guidelines for the oil and gas industry (Methane Rule) which became final

May 7, 2024, and implement the 2024 PM2.5 NAAQS during the same timeframe.

We expect that total costs for implementing all of these EPA policies and the Final

Rule in the timeframes allotted could total hundreds of millions of dollars and

require hiring hundreds of new staff members.

25.

These costs are higher than they should be because EPA promulgated

this Final Rule before developing a model rule, which would normally allow States

to implement the Final Rule more quickly, easily, and consistently.

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26.

The Final Rule was made public and signed after the end of the West

Virginia 2024 legislative session. The Legislature was not aware of these expenses

and did not budget for them with respect to the WVDAQ.

27.

The WVDAQ submitted comments during the comment period,

including the following critiques.

a. The Final Rule would weaken grid reliability and resiliency—

especially in those generation markets with a high concentration of

intermittent renewables. This is doubly concerning given EPA’s push

to electrify the national fleet and the looming retirement of existing

fossil-fuel baseload units.

b. This appears to be the same sort of generation shifting—albeit, by

another name—that the Supreme Court rebuffed in West Virginia v.

EPA.

Because WVDAQ is not aware of any proven, existing

technology that will permit existing or new EGUs to meet the emission

limits, it’s my understanding that the ways electricity is generated,

transmitted, and consumed in West Virginia will need to change. For

existing units, presumptively approvable emission standards are

calculated on a case-by-case basis in accordance with 40 CFR

§60.5775b based on the EGU’s subcategory, which is itself determined

by the EGU’s permanent retirement date. Emission rates for medium-

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term coal-fired EGUs are based on 40% co-firing with natural gas, on

a heat input basis. Emission rates for long-term coal-fired EGUs are

based on 90% capture of CO2.

Basing emission standards on

permanent retirement dates requires generation shifting of the national

electrical grid, as does the natural gas co-firing rate for medium-term

coal-fired EGUs.

c. The chief proposed best system of emission reduction—carbon capture

and sequestration—is beset with difficulties.

It has never been

successfully used at a commercial scale without enhanced oil recovery

to help offset cost, and only when market oil prices are high enough to

justify operation. The handful of successful demonstration projects are

decades old, very small, rely on unique economic and geologic

circumstances, and consume a significant percentage of the EGU’s

output. There is little to no evidence showing that the EPA’s proposed

storage or sale of CO2 is feasible.

d. The Final Rule fails to properly understand or take account of

remaining useful life and other factors.

e. The Final Rule does not allow adequate time to develop and submit a

state plan. Twenty-four months is grossly inadequate to establish a

legally enforceable complex state plan.

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f. Monitoring developed for trading programs under 40 CFR Part 75 are

punitive and biased high by design and should not be required for

monitoring performance standards under the emission guidelines.

28.

The Federal Power Act and the Federal Energy Policy Act of 2005

govern the generation, transmission, and reliability of electric power. In West

Virginia, the Public Service Commission is the state agency responsible for ensuring

that consumers have reliable, low-cost electricity.

29.

In conclusion, it is my opinion that implementing the Final Rule will

require WVDAQ and other state agencies to immediately invest time, effort and

resources to develop a state plan. In my experience, the Final Rule is unlike other

CAA rules promulgated by the EPA that States must implement. It is remarkable for

its scope and complexity and will require West Virginia to change the way it

regulates emissions and the generation of electricity. To submit a state plan or seek

a timely extension, and because there is no federal model rule, the WVDAQ and

other West Virginia agencies must begin work immediately. Developing that state

plan will require significant time, effort and resources and will require amending and

modifying West Virginia’s laws and regulations. West Virginia will not be able to

recover these costs.

30.

Unless a stay is immediately granted, the Final Rule will impose

significant and irreparable harm on the State of West Virginia and its citizens

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through direct and immediate financial means and a loss of sovereign authority—

including that held by WVDAQ pursuant to the West Virginia and federal law.

Lack of Harms by Entry of Stay

31.

status quo.

Issuing a stay will cause no real harms—it would merely maintain the

Emissions from coal-fired EGUs have been steadily declining

nationwide since 2000. The emissions from West Virginia’s EGUs has followed the

same consistent downward trajectory. Based on current market and regulatory

conditions, there is widespread consensus that that trend will likely continue. In

short, I expect West Virginia’s coal-based CO2 emissions to continue meaningfully

declining even without the Final Rule.

32.

Further, West Virginia’s measures already control GHG emissions.

New sources are subject to existing emissions limitations in 40 CFR 60, Subpart

TTTT. The risk of state enforcement actions and national trend towards more

responsible corporate citizenship provide strong incentives to source-owners to

comply with existing regulations.

33.

As always, technological improvements and advances in research and

development produce modern equipment that is better at limiting GHG emissions.

34.

I declare under penalty of perjury under the laws of the United States

of America that the foregoing is true and correct.

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_____________________________

Laura M. Crowder

Director, Division of Air Quality

West Virginia Department of

Environmental Protection

Date: May 13, 2024

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EXHIBIT 29

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EXHIBIT 30

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No. 24-1120

IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

State of West Virginia, et al.,

Petitioners,

Environmental Protection Agency and Michael S. Regan, Administrator,

Environmental Protection Agency

Respondents.

On Petition for Review of Action by the U.S. Environmental Protection Agency

DECLARATION OF CHARLOTTE R. LANE IN SUPPORT OF

PETITIONERS MOTION FOR STAY PENDING REVIEW

AND FOR AN ADMINISTRATIVE STAY

I, Charlotte R. Lane, make the following declaration pursuant to 28 U.S.C.

§ 1746:

I am the Chairman of the Public Service Commission of West Virginia

(PSCWV). I have held this position from July 1, 2019 to present and from 1997 to

2001. I served as Commissioner from 1985 to 1991. I served on the International

Trade Commission from 2003 to 2011. I have also served for several years in the

West Virginia House of Delegates. I served as President of the Mid-Atlantic

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Conference of Regulated Utility Commissioners as well as a member of the Board

of Directors of the National Association of Utility Regulatory Commissioners. I

practiced law in State and Federal Courts in West Virginia for many years. I was

awarded the Justitia Officium Award from the West Virginia College of Law and

the Distinguished Alumnus Award from Marshall University. I am also a Fellow of

the American Bar Foundation and the West Virginia Bar Foundation. I am over the

age of 18 and am competent to testify concerning the matters in this declaration

based on my personal knowledge, my experience with the PSCWV, and information

provided to me by PSCWV personnel.

The PSCWV is responsible for regulating the service and rates of

utilities, including vertically integrated electric utilities serving retail customers in

West Virginia. As Chairman and a member of the PSCWV, I am charged with the

responsibility for evaluating and balancing the interests of current and future utility

service customers, the general interests of the state s economy, and the interests of

the utilities subject to PSCWV jurisdiction in its deliberations and decisions,

including matters relating to PJM Interconnection, LLC (PJM) and the Federal

Energy Regulatory Commission (FERC).

I am providing this declaration in support of the State of West

Virginia s motion for a stay of the Final Rule published by the U.S. Environmental

Protection Agency (EPA) titled New Source Performance Standards for GHG

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Emissions from New and Reconstructed EGUs; Emission Guidelines for GHG

Emissions from Existing EGUs; and Repeal of the Affordable Clean Energy Rule,

89 Fed. Reg. 39,798 (May 9, 2024), promulgated to regulate West Virginia s coal-,

natural-gas-, and oil-fired power plants. The Final Rule establishes a series of

unrealistic required carbon emission reduction target dates and unrealistic, and

unachievable, technologies that are erroneously (and contrary to law) considered by

the EPA to be the Best System of Emission Reduction (BSER) for coal-fired power

plants. The targets and technologies mandated by the Final Rule are an obvious

pernicious effort to ensure the shutdown of coal-fired power plants in less than six

years when they could otherwise operate for sixteen years or more. The effective

date of the Final Rule is July 8, 2024. Id.

I am aware that EPA published the Final Rule following EPA s

Proposed Rule issued on May 23, 2023.1 On August 8, 2023, the PSCWV submitted

comments on the Proposed Rule.2

See New Source Performance Standards for Greenhouse Gas Emissions From

New, Modified, and Reconstructed Fossil Fuel-Fired Electric Generating Units;

Emission Guidelines for Greenhouse Gas Emissions From Existing Fossil FuelFired Electric Generating Units; and Repeal of the Affordable Clean Energy Rule,

88 Fed. Reg. 33,240 (May 23, 2023).

See EPA Docket EPA-HQ-OAR-2023-0072-0598.

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The Final Rule is expected to reduce coal-fired steam generating unit

capacity from 181 gigawatts (GW) in 20233 to 52 GW in 2035, of which 11 GW

includes retrofit carbon capture and storage (CCS). Generation from coal-fired

steam generating units is projected to also fall from 898 thousand gigawatt-hours

(GWh) in 20214 to 236 thousand GWh by 2035. This change in generation reflects

the anticipated continued decline in projected coal-fired steam generating unit

capacity as well as a steady decline in annual operation of those coal generating

plants that remain online, with capacity factors falling from approximately 48

percent in 2022 to 45 percent in 2035 at facilities that do not install CCS. According

to dramatic, but still overly optimistic EPA estimates of the ability to meet the R

requirements, by 2050, coal-fired steam generating unit capacity is projected to

diminish further, with only 28 GW, or less than 16 percent of 2023 capacity (and

approximately 9 percent of the 2010 capacity), still in operation across the

continental U.S.5 In my position as a utility regulator, I believe that any expectation

of existing coal-fired power plants staying online beyond 2038 is not realistic, and

See U.S. Energy Information Administration (EIA), Preliminary Monthly Electric

Generator Inventory (based on Form EIA-860M as a supplement to Form EIA-860),

December 2023 (released Jan. 24, 2024), https://bit.ly/3QGslLQ.

1 U.S. Energy Information Administration (EIA), Electric Power Annual, Table

3.1.A, November 2022 (released Oct. 19, 2023), https://bit.ly/3UE8Uo2.

See 89 Fed. Reg. at 89,822-23.

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shutdown of those plants by 2030 is the clear goal, and my expected outcome, of the

Rule.

The Final Rule mandates a 90 percent reduction in carbon emissions

from coal-fired power plants that choose the use of CCS technology which the EPA

incorrectly assumes is the BSER. If, as I expect, we determine that required carbon

emission reductions cannot be economically achieved, significant expenditures to

comply with other EPA rules applicable to coal-fired power plants, including

investments required to meet Effluent Limitations Guidelines (ELGs) and Coal

Combustion Residuals requirements, would be rendered uneconomical because of

the reduced life of the power plants brought on by the Final Rule. This will likely

result in foregoing further investments in those environmental controls, leading to

shortening of timelines for premature retirement of coal-fired power plants. The

Final Rule does not simply encourage, but effectively mandates, early retirement of

coal-fired, baseload, dispatchable generation that is necessary to maintain the

reliability and resilience of the electric power grid. The Rule does this by requiring

that any existing coal-fired power plant that proposes to operate beyond 2038 must

commit to achieving 90 percent carbon emission reductions through the use of CCS

by January 1, 2032. The limited data on utility-scale CCS, which can be best

described as an experimental unproven technology, when applied to

large baseload power plants reveals that implementation of CCS is neither

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technically possible nor affordable. Moreover, CCS is not considered to be BSER

by the PSCWV or any responsible utility company or utility regulator.

Even if a rapid and unprecedented breakthrough in equipment

technological advancement were to occur to enable carbon capture at the scale

required for large base-load power plants, sequestration itself is an even bigger

problem. The EPA did not consider CCS from the standpoint of the physical

locations and underground rock formations in proximity to the West Virginia coalfired power plants that EPA seeks to burden with non-existent BSER. Sequestration

is not simply drilling a hole in the ground under an existing power plant and pumping

carbon dioxide into that hole. The idea of committing to 90 percent CCS by January

1, 2032 and committing the billions of ratepayer dollars necessary to install

unproven CCS equipment to even remotely make such a target achievable is

ludicrous. It is clear that if the Rule goes into effect, any hope that ratepayer financed

coal-fired power plants can be used to supply base load, dispatchable energy needed

for grid reliability until the end of

useful lives, which, with proper

maintenance, could be 2040 or beyond, is illusory, wishful thinking.

After mandating a non-existent CCS BSER that would theoretically,

but not realistically, allow West Virginia coal-fired power plants to operate beyond

2038, the Rule sets a second natural gas co-firing standard that, if used, would allow

ratepayer-financed coal-fired power plants to operate only to the end of 2038. To

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achieve that 2038 deadline the PSCWV must commit by 2029 to utility installation

of boiler modifications and natural gas pipelines as well as utility contracts for

adequate firm gas supply to co-fire 40 percent natural gas at the existing coal-fired

power plants. Although West Virginia is located on or near deep natural gas shale

deposits, to achieve 40 percent gas cofiring, natural gas pipeline capacity will have

to be evaluated, planned, and constructed. The five-year window during which West

Virginia plant owners would have to commit to, and for the PSCWV to approve,

massive investments in boiler modifications and pipeline construction programs,

even if a firm natural gas supply could be achieved, is unrealistic. The PSCWV

would have to commit ratepayer dollars for massive expenditures almost

immediately with no assurance that the plants could obtain firm pipeline capacity,

construct new pipeline capacity, or obtain necessary firm gas supplies by 2029.

After establishing technically impossible CCS BSERs and financially

infeasible co-firing standards, the Rule then reveals its true goal which is the

shutdown of other coal-fired power plants in West Virginia and elsewhere by 2031.

The Rule does that by allowing coal-fired power plants that commit to permanently

cease operations before January 1, 2032, to operate for the next six and a half years

without any carbon emission restrictions or commitments. The prospect of shutting

down West Virginia power plants with over fifteen years of remaining life, and

having billions of dollars of stranded investment that must be paid by West Virginia

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ratepayers

and then on top of that adding billions of dollars in new investment or

purchased power exposure, all of which will be added to the rates of West Virginia

ratepayers is shocking. The shock is compounded by the fact that without steampowered generation to provide the dispatchable base load power supply to assure

constant and consistent electricity supplies twenty four hours a day, year around, the

entire interconnected electrical system will be relying on unreliable intermittent

generation sources that cannot be dispatched because they the sun does not shine and

the wind does not blow 24 hours per day, 365 days a year.

10.

The Final Rule will burden West Virginia, its ratepayers, and its

vertically integrated electric utilities that own and operate electric generation

facilities by destabilizing the power grid and by making electricity less affordable.

11.

West Virginia has historically exported a large percentage of the power

it produces. As a result, West Virginia is a net supplier of electricity to the regional

grid and is historically near the top of all States in the percentage of its power

generation that is exported to neighboring states.

In fact, West Virginia has

historically been the State with the second-highest percentage of its power

generation being exported to neighboring States. On average, over the last five

years, only Wyoming exported a larger percentage of its in-state electricity

generation to neighboring states. Thus, the premature retirement of West Virginia

coal-fired generation forced by the Rule has a significant impact on the reliability

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and resilience of electrical supply not only in West Virginia, but in neighboring

states, that rely on the interconnected bulk power system.

12.

The Final Rule s restrictions will make electricity less reliable in West

Virginia and throughout the electricity grid by forcing the retirement of baseload,

fuel-reliable, always-available, fossil fuel-fired thermal generation resources,

including the most fuel-reliable of the fossil fuel plants

coal-fired plants

which

can store fuel supply on-site and remain available for extended operations when

needed to back up less reliable generation resources.

13.

Under the Final Rule, we believe that no West Virginia coal-fired

generation will be able to achieve or even attempt to achieve the CCS alternative by

the end of 2031. CCS is simply not a feasible system of emission reductions at the

scale required for our large coal-fired power plants, let alone being the fiction

espoused by the EPA that it is BSER. Moreover, considering the uncertainty of

pipeline capacity and the cost of boiler modifications to achieve the 40 percent cofiring required by 2029 it is likely that the Rule will require West Virginia coal-fired

power plants to immediately begin planning to shut down before 2031.

14.

A decision to shut down a plant before 2031 because of the impossible

targets set by the Rule and the erroneous assumptions of the EPA about BSER will

effectively start the ball rolling to planned shutdowns. Once that occurs, decisions

to invest in upgrades and technology necessary to meet other EPA Rules relating to

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non-carbon aspects of the generating plants will be modified because such

investments will not be economical with the premature retirement dates caused by

the carbon emission rule. Those decisions will accelerate the necessity to shut down

the power plants even before the short timelines provided by the carbon emission

rule. Therefore, it is more likely than not that if the Rule is allowed to go into effect

West Virginia is facing the planned shutdown of 10,500 Megawatts (MW) of utilityowned coal-fired power plants and 2,000 MW of Independent Power Producers coalfired power plants even before the premature retirement date in 2030.

15.

The shutdown of 12,500 MW of coal-fired power will have a

debilitating impact on the economy of the State of West Virginia and on the

communities in the vicinity of the plants and the coal mines that supply the coal to

these plants. While coal usage at the plants varies from year to year depending on

the dispatch status of the plants, we estimate that between 22 to 31 million tons of

coal, much produced in West Virginia, will be put out of business by the Rule. That

coal has a value of between $1.5 billion to $2.2 billion dollars. Moreover, to meet

the needs of our generation plants, the coal mines supplying those plants must plan

on huge capital expenditures to maintain existing production capability and open

new mining locations. As the premature end of life of the coal-fired power plants

draws nearer, those coal mines will be disincentivized from maintaining and

expanding their coal production capabilities. If the Rule goes into effect, I envision

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nothing other than an increasing downward spiral to premature retirement of coalfired plant power plants and coal supplies that count on those power plants. This

future is extremely alarming considering the well-documented warnings coming

from the Regional Power Market and Transmission Planners (PJM for West Virginia

and twelve other Mid-Atlantic and Midwestern states plus the District of Columbia)

and the North American Reliability Corporation (NERC). These organizations have

recently issued reports that intermittent power supply resources such as wind and

solar facilities cannot reliably replace dispatchable, base-load steam power plants.

16.

Indeed, PJM has recently warned in a February 2023 report on the risks

relating to energy resource transitions that a movement away from base load

dispatchable generation will cause capacity deficiencies and reliability degradation

as dispatchable thermal plants are retired prematurely. In that report, PJM stated:

The composition of the PJM Interconnection Queue has evolved

significantly in recent years, primarily increasing in the amount of

renewables, storage, and hybrid resources and decreasing in the amount

of natural gasBy the 2028/2029 Delivery Year and beyond, at Low New Entry

scenario levels, projected reserve margins would be 8%, as projected

demand response may be insufficient to cover peak demand

expectations, unless new entry progresses at levels exhibited in the

High New Entry scenario. This will require the ability to maintain

needed existing resources, as well as quickly incentivize and integrate

new entry[.]

Thermal generators are retiring at a rapid pace due to government and

private sector policies as well as economics

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limited-duration resources. Given the operating characteristics of these

resources, we need multiple megawatts of these resources to replace 1

MW of thermal generation.6

17.

This shift of generation to intermittent, less reliable resources will also

be expensive.

report indicated that PJM requires multiple MW of intermittent

and limited duration resources to replace one MW of thermal generation. If the Final

Rule puts significant quantities of thermal generation resources out of business,

replacing each MW of thermal generation wi

negative implications

for reliability and resilience of the grid, and major impacts on utility costs and

electricity rates.

18.

Much more recently, after the EPA announcement of its Proposed Final

Rule, PJM repeated the same dire warnings. On May 8, 2024, in a statement

PJM warned:

in response to our proposals, areas of concern remain related to

ensuring reliability given the impact of the Final EPA Rule[, including]:

The new rules governing both existing coal and new natural gas are

reduction, which will be commercially available at a reasonable

cost. However, the availability of CCS is highly dependent on local

Energy Transition in PJM: Resource Retirements, Replacements & Risks, 1, 10,

16 (Feb. 24, 2023), https://bit.ly/3D0BRlP.

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topology, such as salt caverns available to sequester carbon and the

availability of a pipeline infrastructure to transport carbon emissions

from individual generating plants to CCS sites potentially hundreds

of miles away. There is very little evidence, other than some limited

CSS projects, that this technology and associated transportation

infrastructure would be widely available throughout the country in

time to meet the compliance deadlines under the Rule.

The Final Rule imposes the most stringent requirements on new gas

and existing coal units that operate as baseload units. Although EPA

has focused on these units given that they have greater emissions,

these baseload units provide a critical reliability role. We are seeing

vastly increased demand as a result of new data center load,

electrification of vehicles and increased electric heating load. The

future demand for electricity cannot be met simply through

renewables given their intermittent nature. Yet in the very years

when we are projecting significant increases in the demand for

electricity, the Final Rule may work to drive premature retirement

of coal units that provide essential reliability services and dissuade

new gas resources from coming online. The EPA has not sufficiently

reconciled its compliance dates with the need for generation to meet

dramatically increasing load demands on the system.

The Final Rule is premised on the availability of increased access to

compliance option for existing coal units. The present gas pipeline

system is largely fully subscribed. Moreover, given local opposition,

it has proven extremely difficult to site new pipelines just to meet

in the future. The Final Rule, which is premised, in part, on the

availability of natural gas for co-firing or full conversion, does not

sufficiently take into account these limitations on the development

of new pipeline infrastructure.7

https://bit.ly/3UTo4ao (attached as Exhibit A).

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19.

The replacement of thermal generation with new generations that are

not at the same locations as the prematurely retiring plants will require extensive

costly transmission system modeling and ultimately billions of dollars of new

transmission built in the PJM footprint alone. For example, the recent announcement

of a shutdown of two relatively small generation plants in eastern PJM resulted in

the need for a multi-billion dollar upgrade of the transmission system that could not

possibly be accomplished in the limited timeline for those plant shutdowns. PJM

determined that reliability needs could not allow the shutdown and directed the

This micro-scenario of the

problems with the shutdown of base load dispatchable steam-powered generation

plants will be played out at critical macro levels in the immediate future if the EPA

Final Rule is allowed to go into effect and more and more base load, dispatchable

generation announces that they cannot economically consider anything other than

premature retirement. PJM described the pervasive and severe reliability violations

in Maryland and throughout the PJM network of a relatively small shutdown of

dispatchable generation compared to what we will face under the Final Rule:

[T]he retirement of the Brandon Shores and Wagner facilities

levels, let alone in 2025 or even 2028 when the system overall load is

expected to grow by an additional 7,500 MW within the greater area of

concern surrounding and including the BGE system.

The reliability violations are pervasive and severe in nature, which

could lead to a potential voltage collapse in the entire BGE system as

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well as multiple overloads throughout the BGE system and the larger

PJM network. The analysis also indicates that without a transmission

solution, both Brandon Shores and Wagner will be required to maintain

reliability prior to complete energization of the planned transmission

reinforcements in the area. 8 (emphasis added)

20.

The Rule will accelerate reliance on intermittent power supply

resources that cannot be relied on to be available 24 hours a day, 365 days a year.

Only dispatchable base load steam-driven power plants can provide that needed

reliability and the Rule will cause the premature retirement of coal-fired generation

which is the second-most fuel-reliable of the steam-driven power plants with

inventories of on-site fuel. Only nuclear power plants can offer such fuel security

and dispatchability. The chance of new nuclear plants taking up the slack for

prematurely retiring coal-fired power plants is zero. The coal-fired power plants,

their supported mining operations, and other local economy businesses supporting

the power plants and mining operations represent thousands of jobs in West Virginia.

Those are jobs that West Virginia cannot afford to lose considering the fact that the

average household income in West Virginia is the second lowest of any State, and is

only 65 percent of the national average.

21.

Decisions about whether plants can continue to operate efficiently or

shut down prematurely cannot be delayed. If the Final Rule is not stayed, the hope,

PJM, BESS Technical Viability Wagner and Brandon Shores Retirements PJM

Transmission and Operations Planning, May 3, 2024, https://bit.ly/3UUm8yu.

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or even expectation for a favorable future court ruling will not delay the need to

begin planning for compliance and premature retirements and immediately

expending resources in time and money. Without a stay the installation of equipment

and construction timelines require immediate decisions that will have long-term

debilitating consequences for ratepayers even if the Rule is eventually overturned by

the courts.

22.

Alternative decisions to forego the installation of equipment required

to comply with the New Rules will likewise have to be made quickly and once made

will have long-term consequences that cannot be reversed. If the decision is made

to retire the plants prematurely, generation owners must notify PJM of the planned

retirement and plan for replacement capacity. Generators in PJM have already

committed the generation units in a three-year forward capacity market. When PJM

will

conduct a retirement study to determine whether transmission system upgrades will

be needed due to the redistribution of electricity flows across the PJM system. If

transmission upgrades are required, they could be very expensive and involve

transmission construction in surrounding states.

23.

Absent a stay, the Final Rule will force West Virginia to make extensive

expenditures of time and resources designing a State Implementation Plan. To

participate in the design of any West Virginia plan, the PSCWV will need to conduct

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detailed analyses and then consult with various stakeholders to determine what

changes can plausibly be made for sufficient natural gas generation to offset the

intermittent unreliability of renewable energy generation. However, this effort to

maintain reliability with alternative steam-driven baseload natural gas units will be

economically questionable and dangerous due to the expectation that natural gas

list of most likely targets for aggressive

carbon restriction regulation. This is not mere speculation. The EPA removed

natural gas-fired facilities from the present rule that targets only coal-fired

generation, but in doing so it stated that it would address natural gas-fired generation

holistically later this year. The EPA already floated CCS as BSER for natural gas

units and any such rule would doom natural gas generation in the same way that the

current Final Rule, unless stayed, will doom coal-fired generation.

24.

The PSCWV expects the development of any West Virginia

Implementation Plan along with the requirement to develop alternative electric

power supply plans will require multiple PSCWV staff employees for two to four

years plus the expenditure of resources for meetings and hearings. And, as indicated

The two-pronged effort,

participating in the State Implementation Plan process, and PSCWV proceedings

related to utility resource planning, certification, and siting, is expected to require

the PSCWV to expend over a million dollars from its existing budget resources for

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the current legislative period. Existing staff, which is already heavily burdened with

normal utility cases processed by the PSCWV every year, will be unable to drop

what it is doing to respond to the new responsibilities that the Rule will drop on us.

We will have to choose between hiring additional employees or contracting for

advice and assistance on the new Rule workload. Either will be expensive. West

Virginia s Legislature meets only once a year for a 60-day session and concluded its

last session earlier this year. EPA s Final Rule was made public and signed after the

end of the West Virginia 2024 legislative session. The legislature was not aware of

these expenses and did not budget for them for the PSCWV.

25.

The PSCWV s substantial expenditure of human and fiscal resources

associated with implementing the Final Rule

including the task of processing

utility plans and formal case filings for replacements of power supply for our

vertically integrated electric utilities, will immediately distract the PSCWV from

serving its full regulatory mission, as directed by the West Virginia Legislature.

26.

The forced premature retirement of West Virginia utility-owned power

plants brought on by the Final Rule will require replacement capacity supplied by

less reliable sources, and that, in turn, will increase utility costs and electricity rates

while destabilizing the grid. The PSCWV and West Virginia electric generators will

not have the luxury of waiting for future developments before making decisions that

will lead to expensive construction of compliance equipment or the acquisition of

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replacement capacity for a prematurely retired unit. Evaluation of alternatives,

filings with the PSCWV, evidentiary proceedings and decisions by the PSCWV, and

implementation of the selected compliance strategies will take time and cannot be

delayed.

27.

I cannot overstate the reliability concerns that are just as critical as the

concerns over the costs heaped on West Virginia ratepayers if the Final Rule is

allowed to go into effect, along with its erroneous and illegal assumptions of BSER.

In addition to the cost of compliance, the Final Rule is problematic because it will

place increased reliance on intermittent (wind-powered and solar-powered) electric

generation resources within the region that includes the electric grid operated by

PJM the regional transmission and supply organization responsible for

transmission adequacy and power supply markets in the region encompassing West

Virginia, twelve other states, and the District of Columbia. The

of the problem notwithstanding,9 this move to intermittent resources will be unsafe

and unreliable without online reserve resources necessary to provide the constant

See 89 Fed Reg. at 39,811 n.62 (acknowledging the serious problems inherent to

sufficient explanation

more renewable energy is added to the electric grid and generation forecasts