THE BIOMASS LOWDOWN

Tell the EPA Biomass Pollutes Our Air

2011-05-02T12:45:00.000-07:00

The EPA is still taking comments on biomass and greenhouse gas emissions until May 5th. But by putting off regulation of biomass carbon, the EPA is allowing new facilities that will emit 350 million tons of unregulated CO₂ a year.

Tell the EPA that if they’re going to study biomass carbon emissions, they need to regulate the biomass industry in the meantime. It’s only common sense.

Comments are due Thursday, May 5, 2011.

CLICK HERE to go to NRDC's online comment form:

Or to submit your own letter:

Submit comments, identified by Docket ID No. EPA–HQ– OAR–2011–0083 by one of the following methods:

Federal eRulemaking Portal: http:// www.regulations.gov.

Follow the online instructions for submitting comments.

E-mail: GHGbiogenic@epa.gov. Include docket ID No. EPA–HQ–OAR– 2011–0083 in the subject line of the message.

Fax: (202) 566–9744. Mail: Environmental Protection Agency, EPA Docket Center (EPA/DC), Mailcode 28221T, Attention Docket ID No. EPA–HQ–OAR–2011–0083, 1200 Pennsylvania Avenue, NW., Washington, DC 20460.

Biomass Energy Gets Another Free Pass in NM

2011-04-08T08:05:00.000-07:00

Again, the cheerleaders for biomass energy in New Mexico have lined up behind Western Water and Power Production LLC. The Associate Press is reporting that a closed door settlement has been reached between the company and state energy regulators in New Mexico. Despite growing opposition from residents, municipalities, and conservation groups, the Associate Press story fails nearly completely to provide that side of the story. WWPP LLC could not have dreamed of better PR.

While the energy goes over to Californians, we still have to breathe the toxic air from the biomass energy plant and the creatures that live in New Mexico's forests will have to find a new place to live.

More Evidence that Biomass is Dirtier Than Coal!

2011-03-23T10:08:00.001-07:00

Again, more evidence suggests that burning biomass is more polluting than burning coal in the short run, and much dirtier than burning natural gas. An article in the Seattle Times on March 23, 2011 addresses the issue head on.

EPA Stalls GHG Regulations for Biomass Burning

2011-01-13T09:50:00.000-08:00

The Environmental Protection Agency (EPA) announced January 12, 2011 that it plans a three-year delay in regulating wood-fired power plants and other “biomass” incinerators under Clean Air Act provisions reducing greenhouse gases pending future consideration of the science and a subsequent rulemaking. The EPA is granting the three-year exemption despite the existing and very plain science that burning of trees and other wood products increases global warming pollution.

You can see the press release here: http://yosemite.epa.gov/opa/admpress.nsf/0/4369C709163915B485257816005971BB.

Under the EPA's Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule ("Tailoring Rule") after January 2, 2011, facilities generating greenhouse gas emissions (GHGs) totaling more than 75,000 tons per year (CO2-equivalent) would have had to get Clean Air Act permits, and show that they'd adopted the "best available control technology" or "BACT" to limit GHG emissions, but only if they already needed to get permits due to emissions of other pollutants. Starting on July 1, sources of more than 100,000 tons of GHGs per year (CO2-equivalent) would have to get permits regardless of their other emissions. The Tailoring Rule originally treated biomass emissions the same as any other GHG emissions.

However, several industries including biomass, timber and the National Alliance of Forest Owners' (NAFO) petitioned the EPA for reconsideration and lobbied Congress. They got a reprieve from the Administration. See the NAFO press release below and also note the NAFO director Dave Tenny comes from the American Forest & Paper Association, served as deputy undersecretary for natural resources at the United States Department of Agriculture and was staff of the Committee on Agriculture in the U.S. House of Representatives, where he served as counsel and policy advisor on natural resources and related issues..

EPA's announcement January 12 does two things:

1. It creates a three-year exemption for biomass facilities from the permit requirement that would have taken effect on July 1.

2. It says that EPA intends to allow facilities to claim that burning biomass is itself a form of BACT for greenhouse gas emissions.

This effectively give the biomass industry a three year window to construct facilities that do not have to comply with the EPA GHG emissions rules and employ BACT, they will likely be grandfathered-in under any new rule. There will have to be an actual rulemaking to implement the exemption (so far, there are just a few letters to members of Congress and a letter granting the National Association of Forest Owners' petition for reconsideration of the tailoring rule). The rulemaking would need to be complete by July, so a proposed rule should come soon.

Stay Tuned!

For AP Story go to:

http://helenair.com/news/article_bcf65f16-1ee5-11e0-ac5a-001cc4c002e0.html

EPA Recognizes the Benefits of Biomass Energy

Grants NAFO's petition to reconsider; outlines rulemaking and scientific inquiry

WASHINGTON, Jan. 12, 2011 /PRNewswire-USNewswire/ -- The U.S. Environmental Protection Agency (EPA) today granted the National Alliance of Forest Owners' (NAFO) petition to reconsider the treatment of biomass carbon emissions under the Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule (Tailoring Rule). In doing so, the EPA announced that it will defer permit requirements for biomass energy production for a period of at least three years pending future consideration of the science and subsequent rulemaking. Dave Tenny, President and CEO of the National Alliance of Forest Owners (NAFO), issued the following statement in response to today's announcement:

NAFO applauds EPA's action as a critical step toward recognizing the full carbon benefits of biomass as a leading source of renewable energy. The three-year moratorium is an appropriate response to NAFO's request. It will allow the EPA and the U.S. Department of Agriculture (USDA) to work with Congress, biomass producers and users, scientists and other interested parties to develop a science-based policy supporting a vibrant biomass energy sector for the long term without penalizing biomass energy production in the interim.

We appreciate that the EPA, USDA and the Administration have heard our concerns that the Tailoring Rule included a sudden and unprecedented change in policy without appropriate public participation. Over 100 bipartisan members of Congress, numerous state officials, and over 100 respected scientists have expressed their concerns about the rule. All have urged EPA to appropriately recognize the carbon benefits of biomass energy in the Tailoring Rule to support renewable energy production, rural jobs and sound forest management.

NAFO agrees with EPA Administrator Lisa Jackson's assessment that "[r]enewable, homegrown power sources are essential to our energy future, and an important step to cutting the pollution responsible for climate change." We also appreciate the important contributions of Secretary of Agriculture Tom Vilsack and key leaders in Congress. NAFO remains committed to working with the EPA, USDA, Congress and others to secure a policy recognizing the full carbon benefits of biomass energy while also supporting the important jobs and economic benefits it brings to rural communities.

It is now critical that we work together in the coming months on deliberate steps to support biomass energy production, remove uncertainty that harms investment and threatens jobs, support working forests and secure biomass as a strong, renewable, domestic energy source that will benefit our country long into the future.

Background

By May 13, 2010, EPA announced the Tailoring Rule and included greenhouse gas emissions from biomass energy in the permit program. On August 3, 2010, NAFO submitted a petition asking the EPA to reconsider and defer the implementation of the Tailoring Rule's permitting requirements to biomass emissions. Today, in response to NAFO's petition, the EPA announced that the agency will complete an expedited rulemaking process by July 1, 2011, to defer for three years the application of the greenhouse gas permitting requirements for emissions from biomass-fired and other biogenic fuel sources. During the latter deferral period, EPA will seek independent scientific analysis on the issue and develop additional regulations as needed on the treatment of biomass carbon emissions under the Clean Air Act.

Pending completion of the expedited rulemaking, EPA will issue temporary guidance to the states advising them to treat biomass as Best Available Control Technology (BACT) when implementing the Tailoring Rule.

NAFO is an organization of private forest owners committed to advancing federal policies that promote the economic and environmental benefits of privately-owned forests at the national level. NAFO membership encompasses more than 79 million acres of private forestland in 47 states. Working forests in the U.S. support 2.5 million jobs. To see the full economic impact of America's working forests, visit www.nafoalliance.org/economic-impact-report.

SOURCE National Alliance of Forest Owners

NM Biomass Company Still Gasping for Air

2011-01-06T11:30:00.000-08:00

Western Water and Power Production Limited LLC filed a legal challenge in New Mexico state court of appeals in December 2010 challenging the state's decision to rescind millions of dollars worth of taxpayer subsidies for its biomass energy facility.

The Petition for Writ of Certiorari (see below) filed with the appeals court in Santa Fe is a last ditch attempt by the biomass proponents to retain nearly $30 million of subsidies for "clean energy production," despite the fact that burning our forests for energy is a dirty form of energy and non-0-sustainable. See the website Stop Spewing Carbon for good information challenging the biomass myth. http://www.stopspewingcarbon.com/.

It will now be incumbent upon the state to defend its decision and I have it on fairly good word this will be the situation. I wish the state luck in this important legal case.

04 9 No:
FIRST JUDICIAL DISTRICT
STATE OF NEW MEXICO
COUNTY OF SANTA FE
101
IN THE MATTER OF THE APPLICATION
OF WESTERN WATER AND POWER
PRODUCTION LIMITED, LLC, FOR
RENEWABLE ENERGY TAX CREDITS
WESTERN WATER AND POWER
PRODUCTION LIMITED, LLC,
Petitioner,
v.
JAMES A. NOEL, CABINET SECRETARY
OF THE NEW MEXICO ENERGY, MINERALS
AND NATURAL RESOURCES DEPARTMENT, AND
THE NEW MEXICO ENERGY, MINERALS AND
NATURAL RESOURCES DEPARTMENT,
Respondents.
PETITION FOR WRIT OF CERTIORARI
Petitioner Western Water and Power Production Limited, LLC ("WWPP") hereby
petitions the Court, pursuant to Rule 1-075 NMRA, to issue a writ of certiorari to review the
Secretary's Order Adopting Hearing Examiner's Findings of Fact, Conclusions of Law and
Order Denying Application and Waiver Request, issued by Respondent Secretary of the New
Mexico Energy, Minerals and Natural Resources Department ("EMNRD") on November 9,2010
("Secretary's Order"). The Secretary's Order denied WWPP alternative energy tax credits under
NMSA 1978, §7-2A-19 (Supp. 2009). A copy of the Secretary's Order is attached hereto as
"Exhibit A." Pursuant to the requirements ofRule 1-075(C) NMRA, WWPP states the following
in support of its Petition:
Introduction
The New Mexico Renewable Energy Act NMSA 1978 §§ 62-16-1 et seq. contains the
following Legislative findings:
(l) the generation of electricity through the use of renewable energy presents
opportunities to promote energy self-sufficiency, preserve the state's natural
resources and pursue an improved environment in New Mexico;
(2) the use of renewable energy by public utilities subject to commission
oversight in accordance with the Renewable Energy Act can bring significant
economic benefits to New Mexico ...
NMSA 1978, § 62-16-2(A)(l) and (2). Like many states, that Act also requires public utilities in
New Mexi~o to have a renewable energy portfolio that is "diversified as to the type of renewable
energy resource . . . " NMSA 1978 62-16-4(A)(4). Consistent with these Legislative
determinations, ENMRD is required to take action to utilize "incentives to encourage biomass
use," thereby "reducing the overabundance of woody [fire-prone] vegetation ... and
encourag[ing] biomass energy use." NMSA 1978, § 9-5A-IO.
To accomplish the preceding goals, the Legislature enacted a comprehensive statute
designed to encourage biomass (and other alternative energy) electricity production through a
series of tax incentives. The statutory incentive grant for corporations is codified in NMSA
1978, § 7-2A-19 (Supp. 2009). WWPP met the requirements of § 7-2A-19 and, in 2008,
EMNRD deemed it to be a "qualified energy generator" eligible for in excess of $27 million in
2
refundable! tax credits over a ten-year period once production begins (projected in two years).
wwpp thereafter commenced construction upon a $100,000,000 biomass production plant (35
megawatt capacity) in Torrance County near Estancia. It executed a letter of intent for financing
and expects to have permanent financing arranged in March or April, 2011. It negotiated a
supply contract with Southern California Edison, a utility subject to similar alternative energy
requirements as those applicable to New Mexico utilities, as referenced above. WWPP expects
to be eligible for federal tax credits.
Notwithstanding this history, the decision ofEMNRD and its Secretary for which review
is now sought effectively holds that WWPP is now ineligible for New Mexico tax credits. To
explain, the amount of tax credits for all "qualified energy generator[s]" statewide for wind and
biomass is $400 million with a cap at $40 million per year. NMSA 1978, § 7-2A-19(C) and (G).
These resources are allocated among the various "qualified energy generator[s]" by a first-intime-
first-in-right methodology based upon the date in which a particular electricity generator
first submitted its application. NMSA 1978, § 7-2A-19(G) and (L). This group of qualified
alternative energy generators is referred to in EMNRD parlance as the "queue." The Secretary's
Order removed WWPP from the "queue" because its Estantia plant was not generating power
within a two year "milestone" after it became "qualified," as allegedly required by EMNRD
regulation 3.13.19.8(B)(3) and (4) NMAC. A copy of the regulation is attached as Exhibit B.
1 The tax credits are payable regardless of whether a "qualified energy resource" earns sufficient
income to offset them. See NMSA 1978, § 7-2A-19(K).
3
The issue upon which this Petition seeks review is straightforward: does EMNRD's
regulation imposing a two-year commercial operation requirement conflict with the applicable
statute, NMSA 1978, 7-2A-19(B), which provides in pertinent part:
7-2A-19. Renewable energy production tax credit; limitations; definitions;
claiming the credit.
B. A person is eligible for the renewable energy production tax credit if the
person:
(1) holds title to a qualified energy generator that first produced electricity on
or before January 1, 2018; or
(2) leases property upon which a qualified energy generator operates from a
county or municipality under authority of an industrial revenue bond and if the
qualified energy generator first produced electricity on or before January 1, 2018.
(emphasis added)
A. Jurisdictional Grounds.
1. Rule 1-075 provides a means to obtain review of an agency decision when there is
no statutory provision for an appeal or other form of review, in order to assure compliance with
the requirements of the New Mexico Constitution, Article VI, Section 2, giving an aggrieved
party an absolute right to one appeal.
2. EMNRD's authority to review and grant or deny applications for renewable
energy tax credits, and to determine placement in the "queue," is derived from the Corporate
Income and Franchise Tax Act, NMSA 1978, §§ 7-2A-l et seq.; see NMSA 1978, § 7-2A-
19(G)(H) (I - K).
4
3. Under the provisions of NMSA 1978, § 7-2A-13, "[t]he Corporate Income and
Franchise Tax Act shall be administered pursuant to the provisions of the Tax Administration
Act [7-1-1 NMSA 1978]." (second brackets in originalj'
4. The net result is a statutory disconnect: an unsuccessful applicant for renewable
energy tax credits is left without any statutory remedy for appeal. Specifically:
a. The Tax Administration Act provides for a hearing of tax protests and tax
refund cases by a hearing examiner "designated" by the "Secretary of Taxation and Revenue."
NMSA 1978, §§ 7-1-24(A)(E), 7-1-3(T). The hearing examiner in this case was designated by
the Secretary ofEMNRD, not the Secretary of Taxation and Revenue.
b. WWPP's challenge to the Secretary's Order involves WWPP's entitlement
to tax credits and its placement in the "queue," not any protest of taxes actually assessed or claim
for refund of taxes actually paid.
c. The only appellate authority in the Tax Administration Act provides:
If the protestant or secretary is dissatisfied with the
decision and order of the hearing officer [designated by the
secretary of taxation and revenue], the party may appeal to
the court of appeals for further relief, but only to the same
extent and upon the same theory as was asserted in the
hearing before the hearing officer. All such appeals shall
be upon the record made at the hearing and shall not be de
novo. All such appeals to the court of appeals shall be
2 Although it is not necessary to the decision regarding this Court's jurisdiction in this matter, it
should be noted that § 7-2A-13 violates the plain language of N.M. Const. Article IV, § 18,
which provides: "No law shall be revised or amended, or the provisions thereof extended[,] by
reference to its title only ... " Section 7-2A-13 violates this constitutional prohibition by
"extend[ing]" the provisions of the Tax Administration Act to the Corporate Income and
Franchise Tax Act through incorporation by reference exclusively to the title of the Act. See
State v. Armstrong, 31 N.M. 220, 243 P.333 (1924)(extending another statute by its title only
renders former statute void).
5
taken within thirty days of the date of mailing or delivery
of the written decision and order of the hearing officer to
the protestant, and, if not so taken, the decision and order
are conclusive.
NMSA 1978, § 7-1-25(A).
d. The above-quoted language contains no mechanism for appeal of the
Secretary's Order, thus invoking the provisions ofN.M. Const., Art. VI, Section 2 and Rule 1-
075NMRA.
5. The Secretary's Order removing WWPP from the queue is a final administrative
action. Unless that Order is vacated WWPP cannot be restored to the queue and other generators
will be allocated tax credits reserved for WWPP. See Exhibit A, Order, ~ 4.
6. A protective appeal has been filed with the New Mexico Court of Appeals in the
event that it is determined that § 7-1-25 of Tax Administration Act does provide an appellate
remedy in these circumstances. Further, a "Protest" has been filed with the Secretary of
Taxation and Revenue in case she is determined to have authority under the Tax Administration
Act to review the decisions of the EMNRD Secretary.
7. Venue is proper in this district pursuant to the provisions ofNMSA 1978, § 38-3-
l(G).
B. Agency Proceedings.
8. This matter arises as a result of the Secretary's Order enforcing EMNRD
Regulation 3.13.19.8B(3) and (4) NMAC ("24 Month Rule") with regard to WWPP's Estancia
biomass plant. The Secretary's Order removes WWPP from the "queue" for renewable energy
tax credits because it failed to generate electrical power and achieve commercial operation
6
demonstrating at least ten megawatts generating capacity within 24 months of the Division's
approval ofthe application. Exhibit A, Order ~ 4.
9. On March 16,2007, WWPP filed with EMNRD its initial application for 274,000
Mw/hrs per year of Renewable Energy Production Tax Credits (hereinafter "PTC" or "the PTC
Program") for its proposed Estancia Basin Biomass Project (hereinafter "the Project") to be
located in Torrance County, New Mexico.
10. On April 17, 2007, EMNRD's Energy Conservation and Management Division
(hereinafter "the Division"), which is charged with the responsibility under the Department's
applicable rules to administer the PTC Program under the Corporate Income and Franchise Tax Act,
NMSA 1978, § 7-2A-19, rejected the WWPP application as being incomplete under the PTC
Program.
11. On August 28, 2007, WWPP re-submitted its PTC application with the
Department.
12. On September 25, 2007, the Division again rejected the WWPP application, this
time primarily on the asserted ground that WWPP had not demonstrated a sufficient available
supply of biomass material to operate the Project at a capacity sufficient to justify the amount of
PTCs claimed.
13. On October 10, 2007, WWPP filed an appeal to the Secretary of the Department
from the Division's denial of the WWPP application on the grounds that the application was in fact
complete under the PTC Program rules and that the WWPP Project was a "qualified energy
resource" under the PTC Act.
7
On February 21, 2008, the Division Director issued a letter confirming the
14. On January 25, 2008, a hearing was held on the WWPP appeal in front of two
hearing examiners appointed by the Secretary.
15. On February 14, 2008, the Secretary issued a decision overturning the Division's
denial of WWPP's application and ordered the Division "to accept WWPP's application for
renewable energy production tax credit as complete, and [to] accept WWPP's estimate of the annual
power-generating potential of the proposed facility," i.e. 274,000 MWH which translates to a total
allowable credit of $27,400,000. See NMSA 1978, § 7-2A-19(C). In rendering her decision, the
Secretary stated: "The renewable energy production tax credit act should be considered in light of
other statutes addressing renewable energy development, which were designed to create a consistent
policy on renewable energy development in New Mexico." Order of the Secretary, February 14,
2008, ~ 27.
16.
Secretary's decision.
17. The regulatory delay experienced by WWPP from the date of its initial PTC
application until its ultimate acceptance by the Department was approximately ten months instead
of the thirty days contemplated by the Department's PTC Program regulations. See 3.13.19.10(B)
and (E) NMAC.
18. A further project delay of approximately one-year was occasioned when the
Division questioned whether WWPP had commenced construction on the Project as required by
3.13.19.8(2) NMAC, but then decided on January 29, 2010 that this regulatory "milestone" had
been achieved.
8
19. On February 19, 2010, WWPP filed a Motion with the Division, asserting, inter
alia, that the 24 Month Rule was void as conflicting with the controlling statute from the Tax Act
quoted above (NMSA 1978, § 7-2A-19(B)(1)), the plain language of which allows a "qualified
energy generator" until January 1,2018 to commence producing electricity.
20. On March 12, 2010, without any explanation or reasons therefor, the Division
Director wrote WWPP a letter denying the Motion and stating only that: "we do not find the
information in the request supports such a waiver or your request for a hearing," thus rejecting the
Project's PTe application because ofWWPP's failure to meet the 24 Month Rule.
21. On March 29,2010, WWPP timely filed its appeals with both the Secretary and the
Division Director pursuant to the March 12, 2010 letter of the Director and the PTe Program
rules.
22. On April 19, 2010, the Division Director denied WWPP's appeal and determined
that the 24 Month Rule was not contrary to the Tax Act provision, NMSA 1978, § 7-2A-19B(1).
23. On April 29, 2010, WWPP filed a timely appeal to the Secretary. An EMNRD
employee was appointed as hearing examiner.
24. On August 3, 2010, a hearing was held "before the hearing examiner in Santa Fe,
New Mexico. The proceedings were not recorded or transcribed as was previously the practice in
other EMNRD proceedings related to WWPP.
25. During the course of the hearing, WWPP was denied the opportunity to have
administrative notice taken of certain relevant ENMRD records.
26. During the course of the hearing, WWPP was denied the right to fully crossexamine
adverse witnesses concerning their direct testimony or present proper rebuttal testimony.
9
27. The hearing was not conducted in accordance with the provisions of the Tax
Administration Act, as required by NMSA 1978, § 7-1-2(A)(17), and the applicable administrative
hearing procedures set forth in NMSA 1978, §§ 7-1-24, and 3.1.8.2,3.1.8.10 and 3.1.8.11 NMAC,
particularly those procedures relating to administrative notice, full cross- examination and
recording of testimony.
28. At the hearing, the following matters were the subject of testimony by the
witnesses:
a. "[A] hard deadline for the construction and commercial operation for a project" in
the electric generation and production business "is not always reasonable or feasible." Exhibit A,
Findings ~ 21(a).
b. "The [PTC] can be worth hundreds of thousands of dollars, in some cases millions
of dollars, and its availability can make a difference in whether a renewable energy project is
viable and/or in the type or amount of financing the project has available to it." Id. ~ 25.
c. In addition to regulatory delays of the type described above, the completion and
commercial operation of a $100 million electrical generating facility may be delayed by variable
force majeure economic conditions, such as the global financial meltdown in 2008, and difficulties
in obtaining financing. Id. ~ 21(b).
d. The Project, if built, will have a significant positive economic impact in Torrance
County, New Mexico's 4th poorest, and will, as well, provide benefits in the areas of forest fire
prevention, water conservation and cattle carrying capacity of the affected rangeland. Id. ~ 21(a)
and (b).
10
e. The EMNRD treatment of the WWPP application was repeatedly inconsistent with
and contrary to the rules, policy and precedent of the EMNRD.
29. None of the factors set forth above (or anything remotely like them) were
considered by the Division, the hearing examiner or the Secretary in determining whether January
1, 2018, the date selected by the Legislature for "first produc[ing] electricity" was reasonable as
applied to biomass generators. E.g., id., Findings 22(a), Conclusion T.
30. At the close of the hearing, the hearing examiner ordered that the parties file briefs,
findings of fact and conclusions of law, and closing statements on September 17, 2010. The
hearing examiner did not allow the parties to file responsive pleadings to each other or pleadings
in opposition to a proposed order by the hearing examiner.
31. On November 9, 2010, the hearing examiner filed his Findings of Fact,
Conclusions of Law and Proposed Order with the Secretary. See Exhibit A. Throughout his
proposed Order, the hearing examiner mis-cited the applicable statute. Instead of NMSA 1978
7-2A-19 he cited NMSA 1978 7-2-18.18 as the controlling statute. Simultaneously with that
filing, the Secretary issued his Order Adopting Hearing Examiner's Findings of Fact,
Conclusions of Law and Order Denying Application and Waiver Request. In his Order, the
Secretary required the Division to make available to other projects the reserved PTC Credits
previously reserved for WWPP's Project. Exhibit A, Order' 4.
C. Parties to the Agency Proceedings.
A. Western Water and Power Production Limited, LLC, Applicant;
B. New Mexico Energy, Minerals and Natural Resources Department; and
C. Owaissa Wind, LLC, Intervenor.
11
D. WWPP is Entitled to Relief.
32. It is beyond the scope of the Secretary's authority to deviate from the time
prescription of the statute under the guise of rulemaking.
33. Neither the Hearing Officer's Findings of Fact and Conclusions of Law nor the
Secretary's Order contains any discussion of the alleged reasons(s) why the January 1, 2018
deadline for first producing electricity is not fully applicable and governing in this case.
34. In In re Camino Real Envtl. Ctr., Inc., 2010-NMCA-057, N.M. _, _ P.3d
_, attached as Exhibit C, the Court set aside a regulatory attempt to limit the duration of a
governmental approval (a landfill solid waste permit) to a time period less than that specified in
the governing statute for that type of permit.
35. In Camino Real, the Court stressed that the Legislature was entitled to specify a
binding permit duration given the fact that, as here, the "permit approval process requires
significant investments of time and resources. !d. ~ 19.
36. In reaching its decision in Camino Real, the Court relied upon "[t]he statute's
history and background [to] demonstrate legislative intent to limit the Secretary's discretion with
respect to permit duration." Id. ~ 18.
37. In contrast, in the EMNRD proceedings here, the Division and the hearing
examiner expressly refused to consider factors such as: (i) legislative findings concerning the
public benefits from biomass electricity production; (ii) the statutorily expressed need to promote
alternative production from a variety of renewable resources including biomass; and (iii) the
testimony concerning the infeasibility of developing biomass generated electricity under the
12
constraints of the 24 Month Rule, given the need for financing and the variability of economic
conditions. E.g., Exhibit A, Finding ~22 (a), Conclusion T.
38. The fact that the Legislature contemplated long-term eligibility for biomass
renewable energy projects is underscored by NMSA 1978, § 7-2A-I9(E), which provides:
A taxpayer eligible for a renewable energy production tax credit pursuant to
Subsection B of this section shall be eligible for the renewable energy production
tax credit for ten consecutive years, beginning on the date the qualified energy
generator begins producing electricity.
39. The decision in Camino Real relied upon the plain (and mandatory) language of
the statute's duration limitation in holding that, absent an explicit statutory exception, an agency
"lacks authority to deviate from a duration provision" for approvals specified in the agency's
governing statute. 20IO-NMCA-057, ~I6.
40. Here, the duration limitation in § 7-2A-I9(B) (quoted on p. 4 of this Petition)
contains mandatory language confirming a person's eligibility for the PTC if only one condition
is met, namely, if the person "holds title to a qualified energy generator that first produced
electricity on or before January 1,2018."
41. Until January 1, 2018 has come and gone, it is premature to determine whether
WWPP is ineligible for the PTCs.
42. The hearing examiner found that WWPP's application to be a qualified energy
generator had been "approved." Id. Conclusion P.
43. The Secretary acknowledged that "credits [were] reserved for the WWP[P]
project" as a qualified energy resource. Exhibit A, Order ~ 4.
13
44. The Secretary's Order previously granting WWPP's application concluded that
"WWPP [was] a qualified energy generator under the Act" (Order dated 2/14/08, Conclusion 50)
and no suggestion or evidence was presented at the hearing that WWPP's status in that regard
had changed.
45. There is no dispute that WWPP "holds title" to the Project.
46. The hearing examiner's decision and the Secretary's Order were contrary to law.
47. Because the hearing was conducted in an arbitrary and capricious fashion,
contrary to law and regulation, all as noted above, the Secretary's Order should be vacated and
WWPP's application and place in the "queue" should be reinstated.
48. No certificate of satisfactory arrangements for the preparation of the transcript of
the hearing as contemplated by Rule 1-075(E)(3) has been filed because, as noted, the hearing
was not recorded so there is no transcript.
E. Relief Sought.
WWPP requests that the Court grant WWPP the following relief:
a. an order declaring that 3.13.19.8(B)(3) and (4) NMAC are contrary to law
because they conflict with the plain language ofNMSA § 1978 7-2A-19(B);
b. an order reversing the Secretary's Order on the grounds that EMNRD acted
arbitrarily and capriciously, without substantial evidence, beyond the scope of its authority, and
otherwise not in accordance with law in denying the WWPP PTC Application and removing it
from the "queue";
c. an order vacating the Secretary's Order and directing the Secretary to reinstate the
WWPP Application and place in the "queue"; and
14
d. such other and further relief in its favor that the Court deems just and proper.
Respectfully submitted,
COMEAU, MALDEGEN, TEMPLEMAN
& INDALL, LLP
BY~(;~~~
Williahl P.~mplelfu.an -,
Stephen J. Lauer
Post Office Box 669
Santa Fe, NM 87504-0669
(505) 982-4611
and
David S. Cohen
Cohen & Cohen, P.A.
P.O. Box 789
Santa Fe, NM 87501
(505) 577-8286
Attorneysfor Western Water and Power
Production Limited, LLC
CERTIFICATE OF SERVICE
It is hereby certified that on December 9,2010, a true and correct copy of the foregoing
Petition for Writ ofCertiorari was deposited in the United States Mail at Santa Fe, New Mexico,
first class, postage prepaid, addressed to:
Timothy R. Van Valen, Esq.
Matt Kim-Miller
201 Third Street, N. W. Suite 1700
Albuquerque, NM 87102
15
Mark A. Smith, Esq.
Energy Conservation and
Management Division
New Mexico Energy, Minerals and
Natural Resources Department
1220 S. Saint Francis Drive
Santa Fe, NM 87505-4225
James A. Noel, Esq.
New Mexico Energy, Minerals and
Natural Resources Department
1220 S. Saint Francis Drive
Santa Fe, NM 87505-4225
K:\WESTERN WATER PETITION CERT 1554-01\Pleadings\Petition for Writ ofCert.doc
16

Biomass Controversy Examined in the New York Times

2010-06-22T10:06:00.000-07:00

Finally, the down side to woody biomass energy production is seeing the light of day. The New York Times presented a balanced story on the developing controversy in Massachusetts.

See http://www.nytimes.com/2010/06/19/science/earth/19biomass.html?scp=1&sq=biomass&st=cse

Burn One Down: State revokes company

2010-03-19T09:36:00.001-07:00

Burn One Down: State revokes company’s $30m biomass tax credit (updated)

Posted using ShareThis

New Mexico revokes $30 million in Tax Breaks from Forest Biomass Company

2010-03-15T12:56:00.000-07:00

New Mexico revokes $30 million in Clean Energy Tax Breaks from Forest Biomass Company
Biomass Proponents could not Meet Deadlines for Energy Production

March 15, 2010

The New Mexico Division of Energy Conservation and Management sent a letter on March 12 to Western Water and Power Production, LLC informing the company that it had not met the 24-month milestone to generate electricity as required in the state’s administrative code. The move was heralded by conservation groups and nearby residents after they had pressed the state to enforce its standards for clean and renewable energy tax credits. Demonstrating no progress, the 35 megawatt electricity project had retained the nearly $30 million in tax credits for two years as legitimate renewable wind and solar projects waited in line.

While states and lawmakers in Washington continue to hand out subsidies for biomass energy production, conservationists and citizens are mounting campaigns across the country to prevent what they consider a dirty and destructive source of energy. Burning biomass, especially, that derived from forests, produces twice as much carbon generally than does burning coal for electricity, in addition there are numerous toxic pollutants associated with burning wood for energy. ) See http://www.stopspewingcarbon.com/biomass-facts.html).

Conservationists argue that forests, especially those held in the federal trust, are far more valuable left protected, absorbing and storing carbon. A recent analysis by The Wilderness Society found that the federal forests of the Pacific Northwest and southeast Alaska store almost twice the carbon than is released each year by the burning of fossil fuels in the U.S. It can take centuries for a tree to mature and absorb as much carbon from the atmosphere as might have been stored in a mature tree cut a fed into a biomass energy facility.

Massachusetts voters were the first in the nation to win a successful petition drive that will put a question on the state ballot to end taxpayer and ratepayer subsidies for biomass incinerators. (See http://www.stopspewingcarbon.com/). Citizens in New Mexico as well are working to convince the state that burning forests to generate electricity is unwise both for our forests and the residents that must breath the pollutants released from facilities. (See http://biomassinfo.blogspot.com/). These citizens have asked the state legislature not to include woody biomass, especially that cut from native forests, in the renewable energy portfolio and to make it ineligible by law for clean and renewable energy tax credits.

WildEarth Guardians is working with national conservation interests to educate lawmakers in Washington D.C. about the greenhouse gas emissions and damage to forest ecosystems that result from burning woody biomass to generate electricity. Despite, these efforts, the biomass industry continues to enjoy substantial taxpayer support in the form of federal clean energy incentives found in climate change legislation, the American Recovery and Reinvestment Act, and the Biomass Crop Assistance Program a provision of the Farm Bill.

The revocation of the nearly $30 million in New Mexico state tax credits from the Western water and Power Production LLC is a significant turn of events for clean energy in the state and a portent for woody biomass energy nationwide. Dirty energy produced from the destruction of native forests cannot be considered clean and renewable and should be rejected as such by the states and the federal government.

2010-02-24T07:00:00.000-08:00

The $30 million dollar slab of concrete.

A slab of concrete worth nearly $30 million?

2010-02-23T14:49:00.000-08:00

A biomass energy company is holding almost $30 million in tax credits hostage with a small concrete slab. The tax credits are issued by the state of New Mexico. At the same time, there are legitimate, renewable energy projects waiting in line. Consumers anxious to get more of their electricity from clean and renewable energy must wait for wind and solar.

Unfortunately, New Mexico's regulators are allowing themselves to be bullied around by biomass electricity proponents. New Mexico's rule, 3.13.19.8 NMAC, states that "Construction of a qualified energy generator shall commence within 12 months of the application’s approval." The applicant, Western Water and Power Production Limited (WWPP), submitted an application for the state's production tax credits (PTC) that was approved on February 21, 2008. WWPP was required to meet the milestone of commencing construction by February 21, 2009 and they submitted documentation claiming to have done so.

What construction turned out to be, according to WWPP, was a graded road leading to a small slab on concrete. The state agreed on January 10, 2010, almost a year after the deadline in the rule, that this constituted "construction" so WWPP retains its nearly $30 million in tax credits from us the tax payers in New Mexico.

To add insult to injury, WWPP has just requested a waiver from the rule's next milestone that requires it to be generating electrical power and be in commercial operation within two years of the date it was awarded the tax credits. Well, that deadline was February 21!

Now, in an effort to further stall and hold on to the $30 million in clean energy tax credits, Western Water and Power Production LLC has filed a "Request for Waiver" of the state's rules. WWPP wants until year end 2012 to generate electrical power and achieve commercial operation. The company's request is based on " the world-wide melt down of the credit system during the 2008-2010 period."

On top of this insult, WWPP has stated in its request filed with the New Mexico Energy Conservation Division (Energy, Minerals and Natural Resources Department) that it will use "Asian" financing for project development and construction and will sell the power to a "California investor owned utility." So, how is it New Mexican's will benefits from this state tax credit?

Holding New Mexico's tax credits hostage until end of 2012, a period of 5 years, for energy (for California) that should not be considered clean or renewable when legitimate renewable energy producers are waiting in line is simply unacceptable. There are jobs for New Mexicans associated with wind and solar industries now, why should we wait until 2013 for a pie-in-the-sky biomass project?

Let Fernando Martinez (fernando.martinez@state.nm.us), Director of the Energy Conservation and Management Division (http://www.emnrd.state.nm.us/ECMD/index.htm) know this is unacceptable and to deny WWPP's request for a waiver of the state's rules and immediately make a determination based on the rules that the biomass facility in Estancia is no where close to generating electrical power.

So, I have a slab of concrete I am willing to sell for $30 million.

Biomass is Not "Carbon Neutral"

2010-02-03T12:44:00.000-08:00

Biomass is Not "Carbon Neutral"

The biomass-is-carbon-neutral story line put forward in the early 1990’s has been superseded by more recent science that recognizes that mature, intact forests sequester carbon more effectively than cut-over areas. When a tree’s carbon is released into the atmosphere in a single pulse, (the Greenfield burner plans to burn a ton of damp, green wood chips each minute) it contributes to climate change much more than woodland timber rotting slowly over decades.

http://www.stopspewingcarbon.com/biomass-facts/58-biomass-is-not-carbon-neutral.html

Biomass vs. Coal

HEAD TO HEAD POLLUTION COMPARISON – lbs per MWhr

POLLUTANT	MOUNT TOM COAL	PIONEER BIOMASS
CO2	1,800	2,583-3,168
NOx	1.5	0.87
SO2	0.8	0.36
PM 2.5	0.09	0.27
PM 10	0.20	0.27
VOC	0.03	0.14

Climate Impacts of Forest Fire often Overstated

2010-02-03T12:38:00.000-08:00

http://www.eurekalert.org/pub_releases/2010-01/osu-eof012710.php

Public release date: 27-Jan-2010

Contact: Beverly Law
bev.law@oregonstate.edu
541-737-6111
Oregon State University

Effects of forest fire on carbon emissions, climate impacts often overestimated

CORVALLIS, Ore. – A recent study at Oregon State University indicates that some past approaches to calculating the impacts of forest fires have grossly overestimated the number of live trees that burn up and the amount of carbon dioxide released into the atmosphere as a result.

The research was done on the Metolius River Watershed in the central Oregon Cascade Range, where about one-third – or 100,000 acres – of the area burnurned in four large fires in 2002-03. Although some previous studies assumed that 30 percent of the mass of living trees was consumed during forest fires, this study found that only 1-3 percent was consumed.

Some estimates done around that time suggested that the B&B Complex fire in 2003, just one of the four Metolius fires, released 600 percent more carbon emissions than all other energy and fossil fuel use that year in the state of Oregon – but this study concluded that the four fires combined produced only about 2.5 percent of annual statewide carbon emissions.

Even in 2002, the most extreme fire year in recent history, the researchers estimate that all fires across Oregon emitted only about 22 percent of industrial and fossil fuel emissions in the state – and that number is much lower for most years, about 3 perceent on average for the 10 years from 1992 to 2001.

The OSU researchers said there are some serious misconceptions about how much of a forest actually burns during fires, a great range of variability, and much less carbon released than previously suggested. Some past analyses of carbon release have been based on studies of Canadian forests that are quite different than many U.S. forests, they said.

"A new appreciation needs to be made of what we're calling 'pyrodiversity,' or wide variation in fire effects and responses," said Garrett Meigs, a research assistant in OSU's Department of Forest Ecosystems and Society. "And more studies should account for the full gradient of fire effects."

The past estimates of fire severity and the amounts of carbon release have often been high and probably overestimated in many cases, said Beverly Law, a professor of forest ecosystems and society at OSU.

"Most of the immediate carbon emissions are not even from the trees but rather the brush, leaf litter and debris on the forest floor, and even below ground," Law said. "In the past we often did not assess the effects of fire on trees or carbon dynamics very accurately."

Even when a very severe fire kills almost all of the trees in a patch, the scientists said, the trees are still standing and only drop to the forest floor, decay, and release their carbon content very slowly over several decades. Grasses and shrubs quickly grow back after high-severity fires, offsetting some of the carbon release from the dead and decaying trees. And across most of these Metolius burned areas, the researchers observed generally abundant tree regeneration that will result in a relatively fast recovery of carbon uptake and storage.

"A severe fire does turn a forest from a carbon sink into an atmospheric carbon source in the near-term," Law said. "It might take 20-30 years in eastern Oregon, where trees grow and decay more slowly, for the forest to begin absorbing more carbon than it gives off, and 5-10 years on the west side of the Cascades."

Since fire events are episodic in nature while greenhouse gas emissions are continuous and increasing, climate change mitigation strategies focused on human-caused emissions will have more impact than those emphasizing wildfire, the researchers said. And to be accurate, estimates of carbon impacts have to better consider burn severity, non-tree responses, and below-ground processes, they said.

"Even though it looks like everything is burning up in forest fires, that simply isn't what happens," Meigs said. "The trees are not vaporized even during a very intense fire. In a low-severity fire many of them are not even killed. And in the Pacific Northwest, the majority of burned area is not stand-replacement fire."

Fire suppression has resulted in a short-term reduction of greenhouse gases, the researchers said, but on a long-term basis fire will still be an inevitable part of forest ecosystems. Timber harvest also has much more impact on carbon dynamics than fire. Because of this, forest fires will be a relatively minor player in greenhouse gas mitigation strategies compared to other factors, such as human consumption of fossil fuels, they said.

Global warming could cause higher levels of forest fire and associated carbon emissions in the future, the researchers said, although there are many uncertainties about how climate change will affect forests, and no indication that forest fire carbon emissions will become comparable to those caused by fossil fuel use.

This research was published recently in the journal Ecosystems, and funded by the U.S. Department of Energy.

###

Editor's Note: Images of different types of forest fire are available to illustrate this story:

High severity fire: http://www.flickr.com/photos/oregonstateuniversity/4304290099/
Moderate severity fire: http://www.flickr.com/photos/oregonstateuniversity/4305047774/
Low severity fire: http://www.flickr.com/photos/oregonstateuniversity/4304321895/

Meigs, G.W., D.C. Donato, J.L. Campbell, J.G. Martin, and B.E. Law. 2009. Forest Fire Impacts on Carbon

Uptake, Storage, and Emission: The Role of Burn Severity in the Eastern Cascades, Oregon. Ecosystems 12: 1246–1267.

ESTANCIA VALLEY BIOMASS PLANT OVERVIEW

2008-02-01T23:00:00.000-08:00

A false promise for clean renewable energy in New Mexico

Background

The New Mexico State Legislature enacted the “Renewable Energy Act” (REA) in 2004 to require that public utilities purchase no less than 10% of their energy from clean renewable energy sources by 2011 to promote energy self-sufficiency, preserve the state’s natural resources and pursue an improved environment in New Mexico.

Western Water and Power Production LLC (WWP) has proposed a 35 megawatt forest biomass energy power plant (enough power for 28,000 homes) near Estancia and the Public Service Company of New Mexico (PNM) has contracted to buy this energy as part of its required 5% under the REA.

WWP intends to acquire a large portion of the material for the energy produced by the biomass plant from cutting pinyon, juniper, and ponderosa pine from our public lands (state and federal).

Issues and Concerns

1. New Mexico forests are not a form of renewable energy.
Renewable energy is energy that is rapidly replenished naturally and cannot be used up.

WWP has obtained a state land lease to remove pinyon and juniper south of Estancia on Chupadero Mesa. It has taken many, many years for these trees to grow to their current size. For example, pinyon trees taller than 3 feet are generally 50-230 years old in New Mexico and the US Forest Service recommends 200-year-rotation management for juniper.[1] In fact, the state-owned forests south of Estancia are not a renewable source of energy; once the trees from that forest are cut, the biomass company has indicated it will need to move onto nearby national forests. In doing so they move to an area where the smallest trees to be thinned are around 100 years old. In addition, in recent proposed and existing thinning projects the U.S. Forest Service has refused to put age and/or diameter limits on the trees harvested during thinning, so even much older trees will be ‘harvested.’ And again, when WWP is finished logging the National Forest, they will have to move on to another area since the rate of growth cannot keep up with the demand for biomass fuel and on from there.
On the other hand, the intent of the New Mexico Legislature and the public who supported the REA was to use genuine renewable energy sources such as wind and solar.
Under WWP’s definition, coal and gas could be considered renewable energy sources—like our forests, it just takes a longer time to renew them. However, coal and gas and New Mexico forests are not a source of renewable energy because the rate of use is faster than the rate of renewal.
The REA states that biomass is agriculture or animal waste, small diameter timber, salt cedar and other phreatophyte or woody vegetation removed from river basins or watersheds in New Mexico, landfill gas and anaerobically digested waste biomass; but … does not include electric energy generated by use of fossil fuel or nuclear energy.
WWP has yet to commit only to cutting “small diameter timber” trees under a prescribed age, or invasive (salt cedar, Russian olive etc.) trees along water courses.

2. Burning forest biomass is not a clean source of energy
· In passing the REA, the New Mexico Legislature required that the energy come from low- or zero-emissions generation technology. Actual clean and renewable energy sources like solar and wind do have zero emissions.
· The State of New Mexico’s Air Quality Bureau (AQB) considers any source that produces more than 100 tons of pollution per year to be a “major source” of pollution, which is not even a health based threshold. The plans for the initial operation of the WWP biomass energy plant will result in the release of 230 tons of nitrous oxides and 221 tons of carbon monoxide into our air per year. Hundreds of tons of pollution a year is not “low or zero” emissions.
· Nitrogen oxides (NOx) are the principle components of industrial and vehicular smog. When dissolved in atmospheric moisture the result can be acid rain which can damage trees and entire forest ecosystems. The biomass plant expects to release 230 tons per year of NOx. This is equal to 1.5 lbs of NOx per hour per megawatt of power. According to EPA statistics, an average coal fired plant in the US releases about 2.8 lbs of NOx per hour per megawatt of power.[2] This means the biomass plant would emit over 50% of the NOx of a typical coal fired plant!
· The WWP facility will likely emit State Air Toxics (TAPs) like wood dust and ammonia which are both on the state air toxics list (20.2.72.502 NMAC Toxic Air Pollutants and Emissions).

3. The development and operation of the biomass energy plant in Estancia, NM may result in significant environmental harm.
The REA states that the use of renewable energy presents opportunities to promote energy self-sufficiency, preserve the state’s natural resources and pursue an improved environment in New Mexico. The REA also requires WWP’s procurement plan include a “demonstration that the plan is otherwise in the public interest”.

Nothing about the proposed biomass plant guarantees improvement of the environment in New Mexico nor is the currently proposed project in the general public interest. In addition, WWP has signed onto the recently finalized NM Forest Restoration Principles but a forest procurement plan from WWP has yet to be presented to the public for analysis.

In light of this fact, the following issues are of pressing concern:
· Significant soil damage may result from the mechanical removal of trees to feed the biomass plant.
· Large biomass extraction machinery may damage sensitive archaeological sites and the tree removal process will create access to hundreds of archeological sites that are currently inaccessible to vehicles.
· Cutting and burning trees will result in a significant increase in greenhouse gases. Live trees sequester carbon. Burning trees releases carbon monoxide which has an indirect radiative forcing effect by elevating concentrations of methane and tropospheric ozone through chemical reactions with other atmospheric constituents (e.g., the hydroxyl radical, OH) that would otherwise destroy them.[3] In addition, carbon monoxide converts to carbon dioxide (a direct greenhouse gas) in the atmosphere.
· Removal of trees from the forest removes biomass that would otherwise contribute to soil development and renewed grass, plant, and tree growth.
· Transportation of the trees to the biomass plant will result in a dramatic increase of PM10 particulate emissions from vehicles working in the forests.
· The biomass plant will be a major source of nitrogen oxides and carbon monoxide (contributing to greenhouse gasses) and will release significant amounts of sulfur dioxide, volatile organic compounds, TSP and PM10 particulate emissions.

4. The use of a biomass energy plant to fulfill the requirements of the REA will divert resources from the development and use of solar and/or wind power.
· The REA mandates that public utilities get 5% of their energy supply from clean, renewable resources. Any energy provided by biomass will be at the expense of truly clean, renewable energy sources like solar and wind.

5. Water planning groups in the basin are looking for ways to reduce water use and the biomass energy plant will have a permanent and irreducible demand for precious water resources.
· The Estancia Basin water plan documents that the basin is rapidly running out of water. According to WWP, the biomass plant will use 200-400 acre-feet per year, enough water to supply 800 to 1600 homes. More important, this permanent requirement for water goes against every desire to reduce water consumption in the basin.
· WWP testified to the NM PRC that … One of the biggest benefits to the state of New Mexico from the Project may be an increase in water available for the health of the forest and rangeland and the conservation of water for other uses. The removal of water consuming overgrowth may substantially increase water availability for the remaining vegetation and for human and animal use with no supporting scientific evidence. In fact, scientific studies do not support this claim, but research shows that there is more recharge from pinyon-juniper forests than from grasslands (Phillips and Sanwig, 2005, Water Resources Research Volume 42).

6. WWP has not been open and candid with the NM Air Quality Bureau and the public and is far from “securing” the required forestlands to make its project viable.
In testimony to the NM Public Regulatory Commission and statements made to The Independent newspaper, WWP stated that they will use agricultural waste and ponderosa pine in the biomass plant. However, their application for an air quality permit is based solely on burning pinyon and juniper. Months before the state of New Mexico accepted bids for leasing public land for thinning;
WWP told the Mountain View Telegraph it already had a lease of 63,000 acres for 20 years. Unless the state land office was making deals behind close doors and then holding non-competitive bidding, this could not have been true at the time.
WWP has consistently implied that they have been guaranteed federal land for thinning. Any thinning on federal land must follow the National Environmental Policy Act (NEPA) which requires an evaluation of all options (including not thinning) and requires public involvement in the decision about thinning or not thinning.

For more information contact: Bryan Bird, Forest Guardians at 505.988.9126 or http://www.fguardians.org/, Bud Latven at 505.384.2208 or Paul Davis at 505.384.5376

[1] http://soil.scijournals.org/cgi/content/full/67/4/1243
also see http://www.na.fs.fed.us/pubs/silvics_manual/Volume_1/juniperus/scopulorum.htm
[2] http://www.environmentalintegrity.org/pub385.cfm

[3] http://en.wikipedia.org/wiki/Greenhouse_gas

ESTANCIA BIOMASS PLANT IS NOT CLEAN

2008-01-21T16:11:00.000-08:00

Estancia biomass plant will emit nitrogen oxides (smog) at a rate that is 53% of a typical coal fired plant along with 700 tons of toxic pollutants including carbon monoxide, sulfur dioxide, mercury and a host of hazardous and toxic pollutants - yet the state calls this clean low-emissions comparable to solar and wind.

The Renewable Energy Act (REA) [1]defines "renewable" as energy generated by solar, wind, hydroelectric, geothermal and biomass [Section 3-D-(2)]. Since the general public, including government officials, equate “renewable” with “clean”, this leaves the false impression that biomass is a clean energy alternative similar to solar and wind.

This belief is reinforced by a provision in the REA that states that “renewable energy means electric energy generated by the use of low- or zero-emissions generation technology” [Section 3- D-(1)]. The problem is there is no quantified standard defining “low emissions”. As a result, the Air Quality Bureau of the Environment Department simply regulates biomass under the same guidelines as a typical coal fired plant. Further, since there is no quantified standard defining low emissions, there is no incentive for the biomass electric producers to use the best available technology.

This major loophole in the REA permits biomass power plants to be a “major source” of pollutants according to NM Air Quality Bureau standards and yet still be considered a low-emission polluter. Indeed, according to conversations with the NM Air Quality Bureau and the NM PRC, under current regulations biomass fuel fired electric generating plants can often pollute on the scale similar to average coal fired plant in the US.

Evidence: EPA's national emission tracking system estimates that an average coal fired plant in the US emits nitrogen oxides, the stuff of industrial pollution and acid rain, at a rate of 2.8 lbs per hour per megawatt of power [2]. A recently proposed biomass plant for Estancia valley in central New Mexico, if built, plans to emit nitrogen oxides at a rate of 1.5 lbs per hour per megawatt [3]. This is a rate over 53% of a typical coal fired plant. The Estancia plant plans to emit over 230 tons per year of nitrogen oxides which are 320 times more potent a greenhouse polluter than CO2 [4]. The plant also plans to emit 220 tons of carbon monoxide and hundreds of tons of other pollutants like sulfur dioxide, volatile organic compounds, hazardous and toxic air pollutants like mercury, ammonia and formaldehyde and a range of small particulates. Indeed, the mercury emission rate of the proposed Estancia biomass plant [3] is estimated to be more than 15 times that of the San Juan generating station [5]. This is certainly not low emissions and defies to spirit of clean renewable energy.

This problem is not unique to New Mexico. The meaningless "zero to low emission" qualification can also be found in other state renewable energy acts.

Without a numeric standard, biomass electric producers have no incentive to install more costly pollution controls. The proposed Estancia plant appears to be designed to be just under the 250 tons per year threshold where stricter pollution controls would be required according to the NM Air Quality Bureau. In effect biomass producers are allowed to produce the highest rate of pollution at the least cost. And you can blame them because they want to minimize costs and maximize profits.

This is a regulatory issue. True low emission technologies are available that would greatly reduce emissions from biomass generating plants. The “low-emission” qualification in the REA simply needs to be quantified if it is to have any meaning.

In short, biomass should either be taken out of the Renewable Energy Act because it is a major source of air pollution or a low emission standard should be quantified requiring biomass electric producers to actually abide by a low-emission standard. In this way the spirit of a clean renewable energy program will remain intact in New Mexico and not subject to abuse, deception and public misperception.

[1] http://legis.state.nm.us/Sessions/04%20Regular/bills/senate/SB0043.html
[2] http://www.environmentalintegrity.org/pub385.cfm
[3] Western Water and Power Production, LLC, Estancia Basin Biomass Facility, Permit Application, 20.2.72 NMAC, Air Quality Bureau, Santa Fe, NM
[4] http://www.ecn.nl/publications/default.aspx?nr=c04008
[5] http://www.pnm.com/environment/pdf/sj_tri_05.pdf

WOOD FOR ESTANCIA BIOMASS PLANT IS NOT RENEWABLE

2008-01-20T15:21:00.000-08:00

By Paul Davis, Bud Latven and Bill Fogleman October 25, 2007

The total biomass available within a 50-mile radius of the plant using all readily available woods and using good forest harvesting principles would supply the biomass plant for no more than 5 years without doing irreparable harm to the forest ecosystems.

I. Introduction

WWP has applied for renewable energy production tax credits made available through New Mexico’s Renewable Energy Act (REA) and under the state’s rule for administration of the REA production tax credit (NMSA 1978, Section 7-2-A-19 as amended in 2007 by SB 463 and 3.13.19 NMAC.) The REA was passed to promote energy self-sufficiency, preserve the state’s natural resources and pursue an improved environment in New Mexico.

New Mexico Energy, Minerals and natural Resources Department (EMNRD) is in the process of reviewing an appeal by Western Water and Power Production Limited, LLC (WWP) of the Energy Conservation and Management Division’s denial of WWP’s request for tax credits under New Mexico’s Renewable Energy Act (REA) and the state’s rule for administering the production tax credits.

The REA defined renewable energy as “electrical energy generated by means of a low or zero emissions generation technology with substantial long-term production potential and generated by use of renewable energy resources that may include solar, wind, hydropower, geothermal, fuel cells that are not fossil fueled and biomass resources; biomass resources are fuels, such as agriculture or animal waste, small-diameter timber, salt cedar and other phreatophyte or woody vegetation removed from river basins or watersheds in New Mexico, landfill gas and anaerobically digested waste biomass; renewable energy does not include fossil fuel or nuclear energy.”

II. Summary

As a group of concerned citizens we offer the following information which clearly shows that WWP cannot prove the “long term production potential” of biomass on the scale required for a 35 MW power plant and that harvesting biomass on the scale required to operate the plant is not sustainable and thereby violates the REA definition of renewability. Beyond the issue of renewability, our analyses also show that providing 20 years worth of biomass is not even achievable.

This report shows there are no conditions under which the forests within a 50-mile radius are capable of supplying 20 years of biomass to WWP’s proposed biomass plant. It shows that after considering the real amount of available biomass and adherence to good forest harvesting principles, the Estancia biomass plant can only operate for 3 to 5 years beyond which it will exceed renewability and result in environmental damage. In short, this result shows there is no “long term production potential” for biomass at the level of consumption required by WWP for the Estancia biomass plant.

III. Overview

WWP states that about 21.6 million tons of dry biomass is available within a 50 mile radius of the plant. WWP states that 21.6 million tons is more biomass that the plant needs for 20 years of operation thereby implying that all of this biomass is available for extraction.

This report considers the constraints that limit the amount of biomass actually available for power plant consumption within a 50-mile radius of WWP’s proposed biomass power plant near Estancia, New Mexico in developing three separate estimates of available biomass.

• The first estimate imposes the constraint of renewability associated with the New Mexico’s Renewable Energy Act (REA). This analysis starts with the 21.5 million tons of dry biomass estimated in PNM’s Biomass Resource Assessment performed by the Native Communities Development Corporation. Because the REA requires a renewable source of energy this analysis estimates the total amount of dry biomass being generated by the forests within a 50-mile radius of the plant was estimated. If the biomass plant could operate on the amount of renewable biomass within a 50 mile radius it could continue operations indefinitely – consistent with the intent of the REA to transition away from non-renewable energy fossil fuels.

The next two analyses estimate the amount of biomass that can be removed form the forests that are within a 50 mile radius of the biomass plant - assuming that thinning would take place without any regard to renewability or sustainability. Once this wood is removed, the power plant would be completely out of fuel and would go out of operation. This is similar to the PNM estimate except constraints imposed by land ownership, land availability, USFS recommended thinning practices, etc. are incorporated. These two analyses are identical with the following exception:

• The first analysis starts with PNM’s estimate of the total amount of biomass within a 50-mile radius of the plant.
• The second analysis starts with an independent estimate of the amount of the total amount of dry biomass within a 50-mile radius of the plant.

Both of these analyses then proceed to subtract out lands and biomass that are not available for extraction.

IV. Analysis

First Estimate
The REA is designed to help move New Mexico from the use of unsustainable fossil fuels to sources of energy that can be relied on in perpetuity. The REA specifically calls for the use of “renewable energy.” WWP proposes to use piñon, juniper, and ponderosa pine derived from clear-cutting and thinning New Mexico forests. The use of forest biomass as an energy source within the REA therefore must be sustainable. In addition, the REA was passed ‘to preserve the state’s natural resources’ and mandated the use of only small-diameter trees and brush. WWP is on record (multiple documented statements at the air quality permit hearings and in published newspaper articles) that the proposed biomass plant would rely only on small diameter timber and brush. In support of its application for tax credits WWP is relying on PNM’s Biomass Resource Assessment(1).

PNM estimates that 21,585,642 tons of dry biomass is physically available within a 50-mile radius of the plant. We know the biomass plant will consume 481,800 tons of biomass per year at the 55 tons per hour, the rate indicated in the air quality permit. In a worst case scenario, clear cutting all land within a 50-mile radius of the plant including all of the Sandia, Manzano, and Gallinas Mountains as well as all the highland piñon-juniper would provide enough wood for the plant to operate for just under 45 years (21,585,642 divided by 481,800 = 44.8yrs). But a renewable energy source should never run out of energy. For example, other renewable energy sources identified in the REA, solar and wind, never run out of energy.

The fact that the biomass plant would clear cut every tree within 50 miles and still completely run out of its production potential in less than 45 years should immediately raise flags about forest thinning as a source of “renewable” energy. For comparison, the proposed Desert Rock coal-fired power plant generating 1,500 MW is scheduled to run for 50 years. At 35 MW (the same as the biomass plant), the Desert Rock plant could run for over 2,000 years. In other words, a fossil fuel plant will last much longer than the proposed biomass plant. Clearly something if fundamentally wrong with the idea of New Mexico forests as a source of renewable energy.

But trees grow, so aren’t they a source of renewable energy like wind and solar? To be a source of renewable energy trees must grow at the same rate as the energy demand or 55 tons per hour over the 50-mile radius. Solar and wind, true sources of renewable energy, by definition supply energy at the rate it is used – forever. WWP has stated that the principle source of biomass extraction will be piñon-juniper forests. These forests grow at rate of 1% per year(2). Assuming every acre of land PNM used in its calculation is available for biomass extraction and assuming that the PNM figure of 21,585,642 tons is correct, an annual growth yield of 215,856 (1% of 21,585,642) tons per year is the actual renewable rate. This is less than half of the 481,800 tons per year required to fuel the biomass plant.

What this means is that if we started by clear cutting, then every new tree would have to be cut every year. If we started by thinning, it would mean that every inch of new growth would need to be removed from the forest – existing trees stay the same size, no wood for traditional wood cutters, no biomass for continued soil formation, no wood available for anything other than this biomass plant and still only provide ½ of the fuel requirements of this plant to run at full capacity.

Note that the USFS recommends 200-year-rotation management for harvesting juniper(3). In other words, the USFS recommends waiting 200 years after harvesting trees until any more are cut. The federal and state land agencies do not recommend clear cutting. In recent proposals for the federal lands in the Manzano Mountains, the USFS recommended 45-75% removal(4) and when thinning, leaving 5-7 tons per acre of biomass on the ground for erosion control and soil regeneration. Following just these recommendations would further restrict the ability of the biomass plant to produce energy in a sustainable manner.

In summary, the REA requires the use of a renewable source of energy and the proposed source of wood for WWP’s proposed biomass plant is clearly not renewable.

Second Estimate
The following analysis is based on the possibility that the New Mexico Energy, Minerals, and Natural Resources Department will ignore both the spirit and the letter of the REA in their decision on tax credits for WWP. That is, they will not require WWP to prove the supply of wood is either renewable or sustainable.

The starting point for this analysis is also PNM’s estimate of available biomass. If we ignore the spirit and intent of the REA of providing New Mexicans with a renewable source of energy, the question of biomass supply is: can enough biomass be extracted from available lands to fuel the biomass plant for the 20 year life of the project? At 21 years all the available wood is gone, the plant is out of operation, and the state tax payer’s investment in renewable energy to replace fossil fuels has failed. But let us continue anyway.

PNM’s biomass resource assessment (included in the WWP application for production tax credits) is an analysis of all of the woody biomass that is physically on the landscape. In concluding that there are 21 million tons of woody biomass available, PNM’s assessment states that sufficient biomass would only be available if the following conditions are met:
• “thinning yields must be maximized”
• “thinning is conducted on forests owned by multiple entities”

In fact to procure all of this wood, WWP would have to clear cut every acre on all of the land within the 50-mile radius. There are a number of reasons why WWP cannot access all of this wood including:

1. The trees do not actually exist. This category is referring to lands that still show up on GIS coverages as vegetated including:
• Areas already thinned
Both federal and private lands thinning using state money has occurred over the past 20 years or so. These lands still show up in GIS vegetation coverages as vegetated. Limited databases are available that describe the actual vegetation state of these lands.
• Burned areas.
Wildfires and prescribed burns that escaped the bounds of their prescription are included in this category. The Lookout fire in the Gallinas Mountains alone covered 5,200 acres. Note prescribed burns that stayed within their prescription are not included in this category because these burns characteristically are set within previously thinned forests. The USFS has a GIS coverage that includes locations and areas of fires that have occurred in this region.

2. Thinning is not allowed on some lands.
• Private lands that have covenants prohibiting thinning at all and/or commercial thinning. With very little effort we have obtained legal descriptions of several large developments that exclude thinning. Certainly there are many others.
• State Parks
• Archeological Sites. According to the state archeologist the average number of sites is one per every 50 acres in New Mexico. In this region, especially south of the power plant the number is much greater. A fifty foot buffer is required around each site.
• Wilderness areas
• Protected areas within forests such as riparian areas, along roads, camp grounds, etc.

3. Forest thinning principals need to be adhered to on state and federal lands.
• the intent and initial requirement of the REA was that only small-diameter timber be cut. WWP has endorsed this requirement repeatedly at the air quality permit hearings and in the local newspaper. The USFS and the University of Washington have published quantitative assessments of available biomass as a function of tree diameter(4). This study provides canopy coverage, available tons, and associated photographs(4) The breakdown of diameters in this database is less than 2 inches, 2 to 9 inches and greater than 9 inches. Being very generous anything less than 9 inches could be considered ‘small-diameter timber.’ Research presented in this study provides a breakdown of the tons of biomass available in each class size. We use the ratio of the tons of biomass less than 9 inches to the tons of biomass greater than 9 inches to scale the estimates of wood available within the 50-mile radius of the plant. The ratio of small-diameter (less than 9 inches) to the total biomass for all P-J studied sites is 40%.

• slope constraints. PNM uses 30% - we agree.

• the need to leave some trees. PNM/WWP’s analysis assumes that no trees will be left behind. Forest service requirements for the Thunderbird Project5 – a P-J and ponderosa pine logging project just west of the proposed biomass plant, called for removal of 45 – 75% of the trees in an area they chose because of its current very overcrowded conditions (their words).

4. Federal and state land cannot be guaranteed and many private lands will be inaccessible.
• Federal lands
Not all federal land will be available for the practical reason that the federal government has an increasingly limited budget. A review of the history of thinning in the Manzano Mountains shows several major thinning projects including upper Tajique Canyon, Red Canyon, and the Thunderbird project. However, these projects have occurred over a period of more than 30 years. Therefore the average number of acres thinned per year is very small.
Federal lands cannot be counted on as a source of wood at all because all thinning on federal lands requires the statutory National Environmental Policy Act (NEPA) process. Following NEPA requires: 1) an analysis and fair comparison of a reasonable range of alternatives to the no action alternative (no thinning); and 2) public input to the decision process. According to the Mountainair District Ranger at the Estancia biomass hearing, the USFS would be in violation of NEPA if they guaranteed wood off of any future thinning project to the biomass facility. Since all federal lands (BLM, USFS, DOD, USFWS, etc.) must follow NEPA, no federal lands can be included in WWP’s assessment of available fuels.
• State lands
WWP was successful in securing a sole-source contract for 44,000 acres of state lands south of the power plant. Since that time: 1) the state forestry division has promulgated rules that make piñon-juniper a commercial species thereby invoking stringent rules for the sale and management of these forests; and 2) the public has become aware of what is happening and will be monitoring the thinning of these lands closely to assure natural resources and cultural sites are provided the utmost protection, will insure that other entities are allowed to bid on these lands, and will insure that the taxpayers receive maximum value for their land. Therefore WWP cannot be guaranteed access to all remaining state lands free of competition and environmental regulation as their analysis assumes.
• Private lands
While some large ranches may be available to the biomass plant others have already been thinned. In addition, there is little or no chance of WWP getting any wood off of private land within commuting distance of Albuquerque. These lands: 1) often have covenants; 2) have houses, barns, driveways – not trees; and 3) would present logistical hurdles (number of small trucks, number of contracts, interaction with each landowner daily, etc.) in terms of the large-scale cutting that would be needed to supply the biomass plant.

Using only a few of the above constraints, let’s walk through how much biomass might actually be available. The following table starts with PNM’s estimate of the maximum amount of biomass available within a 50-mile radius of the plant and removes large-diameter trees and provides estimates for the range of thinning rates provided by the USFS.

Complying with the Renewable Energy Act’s mandate that only small-diameter trees be cut yields a plant lifetime less than the 20 years required. Then, even with the maximum thinning (75%) recommended by the USFS, the plant lifetime decreases to 13.4 years and then to 8.1 years if less, but still recommended, thinning is allowed.

Next consider the fact that some lands in the above table are not available and will never be available. Department of Defense (DOD), US Fish and Wildlife (USFWS), and National Park Service (NPS) lands are not available for thinning. In addition, neither federal nor Indian land is a source of guaranteed woody biomass. The following table provides estimates of biomass accounting for land that is unavailable or which cannot be guaranteed.

Roads have no trees and the USFS recommends a 50 foot buffer along drainages(5). We used GIS coverages to estimate the percentage of land covered by roads and streams of about 5%. Subtracting these lands yield plant lifetimes of 10 years and 6 years for the 75% and 45% thinning rates.

Next, about 1/3 of the private land is impractical for harvest by the biomass plant (the highly-developed northern and north-central areas). Taking out 1/3 of the private land yields plant lifetimes of 7.5 and 4.5 years respectively for 75% and 45% thinning rates.

Not quantified but still considered is the fact that the state of New Mexico has been paying private landowners to thin their land through the local Soil and Water Districts. These lands still show up as forested on GIS coverages.

In summary, even if we ignore the letter and the spirit of the REA and assume that PNM’s biomass estimates are correct, there is not nearly enough wood to supply the proposed biomass plant for 20 years.

Third Estimate
The next assessment differs from the previous assessment in one major way. The following assessment uses independent data for estimating the tons of biomass available within a 50-mile radius of the plant – the starting point of the analyses.

In the previous analyses we assumed that PNM’s estimate of the amount of total biomass available within a 50 mile radius of the plant is correct. Unfortunately we could not confirm PNM’s estimates because the core data and analysis processes and associated spreadsheets are considered proprietary and not available to the public. Therefore, we researched and found data on the amount of biomass per acre for forests similar to those within a 50 mile radius of the proposed location of the biomass plant. Using a number of sources for GIS coverages, we then estimated the total amount of biomass within a 50-mile radius of the plant. Lands and biomass that are not available are then subtracted from this starting value.

The following figure shows the total forested area within a 50-mile radius of the proposed biomass plant. Following this figure is a table summarizing the tons per acre derived from the PNM estimate. The range in tons of dry wood per acre (tpa) is 3 to 32 with an average of 20 tons per acre of wet wood. As just stated we do not have access to the details of the PNM study. A detailed study by the USFS and the University of Washington(4) of piñon-juniper forests (which represent most of the forests within the 50-mile radius and are the main basis for WWP’s air quality permit) reveals that the tons of wet wood per acre for piñon-juniper forests ranges from less than 2 to 42 tons per acre and the average is 14.5 tons of wet wood per acre or 10.9 tons of dry wood per acre. For comparison, a recent USFS Nevada study indicates that there is only an average of 7.8 dry tons per acre of piñon-juniper biomass statewide(6).

The following table shows the total amount of dry tons available using the USFS/UW average of 10.9 tons per acre. The new estimate is about 50% less than PNM’s average estimate of 20 tons per acre. This difference of 50% results from using the USFS/University of Washington estimate instead of PNM’s estimate of the total amount of dry biomass available. It is important to point out that the PNM estimate accounts for differences in forest density while the independent analysis uses an average for all lands. The result is that for some lands the independent analysis provides estimates that are larger than the PNM estimate (see BLM in the following table) and that the overall estimate is about 25% less than the PNM estimate instead of the 50% expected from the difference in tons per acre.

Starting with the independent estimate in the above table the analysis is identical to the previous analysis that started with the PNM estimate of total tons of dry biomass within a 50-mile radius of the plant. Following are maps of biomass and landownership used in this estimate.

Applying the same criteria from the previous analysis (small-diameter trees, thinning percentages, etc.) yields the following table of the actual amount of wood available.

In summary, the total biomass available within a 50-mile radius of the plant using all readily available woods and good forest harvesting principles would supply the biomass plant for 3.2 to 5.3 years.

Response to Comments by WWP’s Thinning Contractor

2008-01-15T17:31:00.000-08:00

By Paul Davis, January 15, 2008

This document responds to Brent Racher's affidavit and response to the “Fuel-Wood Estimate for the Proposed WWP Biomass Plant near Estancia, New Mexico” developed by Paul Davis, Bud Latven, and Bill Fogleman and submitted to the NM Energy Secretary dated October 25, 2007.

Background

A biomass plant near Estancia, NM is being proposed solely because of the New Mexico Renewable Energy Act (REA). The REA was passed to encourage the development of clean, renewable energy. With its allowance of higher rates for consumers and tax credits funded by consumers, the act seeks to move New Mexico toward permanent, clean energy sources. Spent wisely, an investment of our tax dollars at this time could provide continuous energy supplies for all time.

Energy sources such as solar and wind are clearly renewable. The sun will continue to shine and fortunately or unfortunately the wind will continue to blow in New Mexico. However, the use of biomass requires an analysis to determine if the rate of energy generation (in this case, tree growth) will meet the energy demand for all time. In addition, proof must be provided to demonstrate that biomass is available to the biomass owners. Available means contractually available, legally available, and available without harm to the environment.

In this light, two estimates of available biomass for the proposed Estancia plant have been developed. One was produced by the Native Community Development Corporation in July of 2005 under contract to the Public Service Company of New Mexico that estimated the total available fuel within a 50 mile radius without regard to renewability and with little regard for availability. Specifically, the issue of renewability (is the rate of energy generation (growth) equal to or greater than the rate of energy use) was not addressed at all. With regard to availability a very limited number of constraints were employed. Essentially this was an estimate of how much wood could be clear cut within a 50 mile radius of the proposed plant.

WWP has been touting this estimate for several years now saying it proves that three times the amount of wood the plant needs is available. However, they have never demonstrated that they have access to this wood or that clear cutting of all forests would be allowed.

A group of concerns citizens then took it upon themselves to evaluate the original PNM estimate. Because PNM would not provide all of the technical details of their estimate to these citizens or to the public at large, this group of citizens produced their own estimate independent of the PNM estimate.

Next comes Mr. Racher, WWP’s thinning contractor, with a criticism of our analysis. Unfortunately, Mr. Racher’s focus on criticizing our work did nothing to reduce the uncertainty about how much wood is renewable and available. That is, the shortcomings of the original PNM estimate were not addressed in Mr. Racher’s criticism of our work.

The fact that Mr. Racher did not clarify the hidden parts of the PNM estimate and the fact that Mr. Racher’s criticisms of our work did nothing the elucidate the amount of renewable and available biomass raises our first and perhaps the most serious concern. Three groups now (PNM, our work, and Mr. Racher’s criticism) have come up with different estimates of the amount of renewable and available biomas. Therefore there is an obvious need for the Energy Department to perform their own analysis. We support and encourage such an analysis with the requirement that any such analysis must address the key issues of renewability and availability.

Our second general response to the criticisms of WWP’s thinning contractor is that WWP has still not proven they have access to sufficient sustainable wood to fire the biomass plant for 20 or 30 years (or whatever their current number is). Mr. Racher attempts and fails to argue that the growth rate is sufficient to renewably provide fuel to the biomass plant and in doing so also fails to address whether or not such fuel is available to the owners of the biomass plant. When all is said and done we are left in the same position, WWP has not proven access to a renewable fuel source for their proposed plant.

The following is a response to specific criticisms raised by WWP’s thinning contractor.

Response to Specific Criticisms

1. ‘Bone dry’ versus ‘green’ tons.

WWP’s thinning contractor argues that we used the weight of green wood that the plant would consume, 55 tons per hour, and should have used the equivalent weight of dry wood, about 30.25 tons per hours. Such a difference would change our estimate of the lifetime of the plant from 3.2 to 5.3 years. If this is indeed a mistake, our calculation for the lifetime supply of renewable and available wood for the biomass plant would change to 5.8 to 9.6 years still far short of renewable and far short of the amount of wood needed to supply the biomass plant for its first 20 years of operation.

While this may seem like a simple straight forward mistake, it is not. Recognize first that the trees being proposed for use in the biomass plant are alive today and green. Therefore some conversion from green, wet wood weight to bone dry weight is required. In addition, wood is never ‘bone dry.’ We understand that wood will be allowed to dry out at the biomass plant prior to burning and will achieve an equilibrium moisture content which is related to the moisture content of the air but this wood will not be bone dry.

The original PNM estimate uses the term ‘bone dry’ but has refused to provide us with the data used in converting green wood weight to bone dry wood weight.

In addition, the basic concept of ‘bone dry’ is not defined. Sounds simple, but it isn’t. In the attachment entitled “Physical Properties and Moisture Relations of Wood.” Moisture content is defined as the ratio of the weight of water contained in the wood to the weight of oven dry wood. Since the density of water is greater than the density of wood, the article points out that, depending on the specific gravity of wood, the maximum moisture content can range from 267% to 40%. Most important, the moisture content does not vary from 0% (‘bone dry’) to 100% as most would expect and as the attached reference points out.

Conceptually, the moisture content at which only the cell walls are completely saturated (all bound water) and where no water exists in cell lumens is called the fiber saturation point. While a useful concept, the term fiber saturation point is not very precise. In concept, it distinguishes between the two ways water is held in wood. In fact, it is possible for all cell lumens to be empty and have partially dried cell walls in one part of a piece of wood, while in another part of the same piece, cell walls may be saturated and lumens partially or completely filled with water. It is even probable that a cell wall will begin to dry before all the water has left the lumen of that same cell. The fiber saturation point of wood averages about 30% moisture content, but in individual species and individual pieces of wood it can vary by several percentage points from that value. The fiber saturation point also is often considered as that moisture content below which the physical and mechanical properties of wood begin to change as a function of moisture content. During drying, the outer parts of a board can be less than fiber saturation while the inner parts are still greater than fiber saturation.

So what does all this mean? It means there is no simple concept of ‘bone dry.’ Bone dry could mean oven dried, it could mean no unbound water, or it could mean a fiber saturation of 30% or even 45%. Yes, bone dry could mean 45% moisture content. But this is not an unsolvable problem. If PNM would simply provide the public with the details of their analysis we would all know the meaning of ‘bone dry.’

Using the definition of moisture content above, it turns out that Mr. Racher calculation is wrong. Mr. Racher assumes that since the wood to be burned has a 45% moisture content he can multiply the total wood demand of 481,800 tons of wet wood by 0.55 and obtain the estimate of 24,990 tons of equivalent dry wood. Using the above definition the correct calculation is:

Weight of water/weight of wood = 0.45
Weight of water = 481,800 – weight of wood
By substitution of the second equation into the first, the weight of wood is:
Weight of wood = 481,800/ (1.45) = 332,275 tons of equivalent dry wood

Now do we have other evidence of what ‘bone dry’ could mean? Possibly.

· In WWP’s draft “Project Design Basis Summary” of March, 2007 the burn rate is given as 75 tons/hr. If we assume this is a ‘wet’ weight and then use the conversion of ‘wet’ to ‘dry’ wood weight from the data obtained from the Sandia Ranger District (see our original fuel estimate for reference), this would yield a dry weight of 56 tons/hr which is very close to the 45% moisture value of 55 tons/hr in the air quality permit. So perhaps, WWP has already done the conversion to equivalent dry weight. In which case our original analysis stands as is.

· As pointed out in our original fuel analysis, the (PNM’s) range in tons of dry wood per acre (tpa) is 3 to 32 with an average of 20 tons per acre of wet wood. A detailed study by the USFS and the University of Washington of piñon-juniper forests (which represent most of the forests within the 50-mile radius and are the main basis for WWP’s air quality permit) reveals that the tons of wet wood per acre for piñon-juniper forests ranges from less than 2 to 42 tons per acre and the average is 14.5 tons of wet wood per acre or 10.9 tons of dry wood per acre. For comparison, a recent USFS Nevada study indicates that there is only an average of 7.8 dry tons per acre of piñon-juniper biomass statewide.

Note that other studies indicate that PNM’s estimate is not an estimate of ‘bone dry’ fuel but is much more consistent with other estimates of wet wood tons per acre.

Bottom line, we have no independent way to evaluate the PNM calculations since they will not share them with us and we have plenty of evidence that our original calculations are correct.

2. Our use of ‘Rocky Mountain Juniper’ instead of one-seed juniper, pinon pine, and alligator bark juniper.

Contrary to WWP’s thinning contractors assertion that we used these data to ‘skew the output’ we used the data because it was available and the PNM data are not available to us. But beyond that Mr. Racher's assertion is incorrect and misleading. First the USFS data set we relied on did include pinon pine and some one seed juniper (see http://depts.washington.edu/nwfire/dps/ Site PJ 14 for example). However, there are no alligator bark junipers in the study and few one-seed junipers. Therefore, we appreciate Mr. Racher pointing out that we systematically overestimated the amount of biomass because the Rocky Mountain juniper is a bigger tree than either the one-seed juniper or the alligator bark juniper (see: http://www.ars-grin.gov/cgi-bin/npgs/acc/display.pl?1727184, http://plants.usda.gov/java/charProfile?symbol=JUSC2)

3. Prescriptions for Thinning.

Our report was based on the premise that some type of thinning prescription would be followed on state, federal, and private lands. So the question was, what prescription should we use? First we found the most recent and nearest thinning project to the proposed location of the biomass plant. That prescription came from the USFS Thunderbird project, a project that included pinon, juniper, and ponderosa pine. That prescription called for thinning 45 to 75% of the material. Mr. Racher is correct that in also applying a diameter cap we may have double counted. However, Mr. Racher failed to recognize that, as we stated, the USFS also mandated leaving 5-7 tons of biomass on the ground for soil development and stabilization. In our analysis we did not subtract this biomass from our available fuel calculation.

Next Mr. Racher questions our use of a diameter cap. Not only do we think a diameter cap is advisable we also believe that it is consistent with the original language of the REA and the stated position of WWP. Throughout the entire public process of permitting of this biomass plant, WWP has claimed they would only cut “small diameter trees”. For example, Mr. Maddox spent considerable time explaining (at the March 2007 air quality permit hearing) that one study in New Mexico shows “215 million trees less than five inches in diameter.” Over and over we have been told the biomass plant will solve the problem of juniper encroachment. For example, the WWP web site (nmbiomass.com) states that ‘Along with juniper, such trees are expanding at a rate of 10 thousand acres per year, which is not sustainable or healthy.’ They fail to mention that if this is indeed the fuel for the plant, these trees are all very small in diameter (from 1 inch to a few inches). In fact, if the goal of this plant was to address juniper encroachment, an age based thinning prescription could be developed since we know the timing of the start of juniper encroachment. Any age based thinning prescription would severely limit the available biomass. As the NRCS points out, mature juniper trees are typically 5 inches in diameter and 150 years old (ftp://ftp-fc.sc.egov.usda.gov/GLTI/technical/publications/Pinyon.pdf) But land treatment is not the reason for this biomass plant. It only exists for one reason – the Renewable Energy Act.

As PNM’s own analysis concludes in its executive summary:

Sufficient biomass would only be available if the following conditions are met:
- thinning yields must be maximized
- thinning is conducted on forests owned by multiple entities

In other words, they know they have to take it all.

LETTER-TO-THE-EDITOR

2007-10-18T15:36:00.000-07:00

by Peggy Norton
Albuquerque Journal

I am so disappointed to read your editorial this morning regarding the proposed biomass plant. There has been a tremendous amount of controversy over this plant, and a lot of intelligent discussion. You totally ignore the other side of this issue and writeabout the project from the view of Mr. Cohen. The owners of this plant have taken advantage of many loopholes regarding the licensing of this plant. This is a new technology in the state and it needs to be done correctly because it will have a huge impact for many years. Numerous articles have been written in the Mountainview Telegraph, not only by Mr. Cohen, the owner but also by manty other people who disagree with the project. You would be doing your readers a service if you printed some of those articles from people who disagree with the plant. This is NOT clean energy, spewing 750 tons of pollutants into the atmosphere, which does not include diesel fumes and dust created by the trucks hauling wood. It is NOT renewable, because it necessitates burning trees that take 100-500 years to grow. It requires 10 milliontons of trees, if the plant is in operation for 20 years, and all these must come from within 50 miles of the plant. I think the Energy, Material and Natural Resources Dept. is wise to be looking ahead at the impact of this plant, and I wish the Environmental Improvement Board could have done so also. Do we really want to give $20 million in renewable energy tax credits for someone to clearcut our land and pollute our air? Wouldn't these monies be much better spent supporting solar and wind energy sources, which truly are renewable and clean?

EDITORIAL

2007-09-28T15:19:00.000-07:00

STATE AGAIN REJECTS FOREST BIOMASS: Failure to Demonstrate Long-Term Fuel Availability and Lack of Harvest Plans

September 28, 2007
Bryan Bird, Forest Guardians

On Tuesday the Director of Energy Conservation Division rejected an application for critical tax credits from Western Water and Power Production LLC (WWP), a biomass energy company. The New Mexico legislature provided limited production tax credits for alternative energy development in the state, under the Renewable Energy Act amended in 2007. Only 296,273 megawatt hours per year (MWh/yr) of the original 2 million remain to be allocated between wind, solar and biomass projects.

Western Water and Power applied on August 29th for 274,000 of the remaining MWh, but was rejected on September 25. In applying for the tax credits, the biomass company is required to demonstrate "substantial long-term production potential." In rejecting the application, the state cited a failure to demonstrate the renewable character of forestbiomass or its long-term production potential and the failure to ensure clear cutting would not be necessary. The clean and renewable nature of biomass in New Mexico has been called into question by citizens in the affected area as well as Forest Guardians.

"Burning forests for electricity is neither a renewable nor a clean alternative for our energy future," said Bryan Bird, Public Lands Director at Forest Guardians. "Anyone driving through the Estancia Basin can see there is not enough forest to feed a biomass energy power plant. A juniper tree takes 200-300 years to grow to maturity in NewMexico; the biomass plant has a scheduled lifetime of 20-30 years. This biomass plant will be mining our local forests for electricity."

This facility would have emitted hundreds of tons of air pollution annually to produce 35 megawatts of electricity (enough for 28,000 homes) by burning natural forests harvested from private, state, and federal lands in the Estancia Basin of new Mexico. The debate about the emissions from the facility and the sustainability of this energy source has been heated. After recently receiving an air pollution permit from the state air quality bureau, this new rejection from the energy conservation division may prove the final blow to the Estancia facility. TheWWP application for tax credits is competing with a wind energy project for the final, remaining allocation of credits from the Renewable Energy Act.

With the rejection of WWP's application, the wind power project will take the first place in line for the credits. It is unlikely that the forest biomass facility will be viable without substantial tax subsidization. Residents in Torrance County, New Mexico became alarmed when the air quality and forest impacts were made public in the permit proceedings. "Biomass in the form of burning wood for fuel to generate energy does not seem practical for any desert state," Said Jan Eshleman, an affected resident, "This specific biomass plant will not onlymine our forest for fuel but will also mine water from an already compromised aquifer that's been closed by the state engineer in 2002."

In addition to the air pollution generated by the energy facility, other environmental impacts were equally disturbing. The electricity plant would have required 400 to 500 thousand tons of chipped forest per year or 40 to 50 truck loads a day. The impacts on regional forests and water supply areundetermined, but potentially significant.

Live trees continuously absorb carbon from our atmosphere, but once cut can no longer provide that service. Deforestation is the second principle cause of atmospheric carbon dioxide. Furthermore, burning trees releases carbon monoxide. This converts intocarbon dioxide, a direct greenhouse gas, in the atmosphere. Besides the impacts to global warming, removal of trees from the forest eliminates biomass that would otherwise contribute to soil development and renewed grass, plant, and tree growth.

Western Water and Power LLC is co-owned by a Wall Street company, Allco Renewable Energy Group Limited LLC (http://www.allcorenewableenergy.com/), that is part of the U.S. based Allco group of companies including, Allco Finance Group Limited and Allco Equity Partners LLC with investments in "aviation, rail, high technology, water/wastewater, power, infrastructure and film, for a wide-variety of corporate and government entities."

EDITORIAL

2007-09-21T08:14:00.000-07:00

Lawyer Has His Science Mixed Up
Thursday, September 20, 2007
The Mountain View Journal
by Bryan Bird, Forest Guardians

The Mountain View Telegraph has printed the Guest View of David Cohen (Aug. 30), a lawyer representing the corporation Western Water and Power Production LLC, for which he is also the president and chief advocate. WWP is the developer of a power plant south of Estancia that would burn forests to generate electricity.

It is up to the reader to judge Mr. Cohen's expertise in forest science and ranching in New Mexico, but some of his assertions require a response.

From the outset Mr. Cohen's scientific credentials are strained by his insistence that piñon-juniper forests are an infestation leading to forest fires and harm to the aquifer. Both are contradicted by science.

Piñon-juniper forests have expanded their range in the last century, but the exact cause is not clear: changing climatic conditions, livestock grazing, fire suppression, or some combination is likely to blame. What is clear is that we cannot control climate, but we can control the other factors. If we choose to clear grasslands of piñon and juniper, it will only be treating a symptom and not dealing with the root causes. Maintaining cleared grasslands will require grazing be curtailed and grass fires allowed to burn more regularly. Is that what Mr. Cohen advocates?

Mr. Cohen invokes sustainability, but unfortunately misapplies the concept. He confuses long-term human use of the land with self-sustaining ecosystems.

This is never more obvious when he refers to "rotting brush residue." We learn in high-school science that soil is built from decomposing organic matter. Without it, there would be only rock: trees and grass would not have the nutrients necessary to grow. Removing "rotting brush residue" robs us of our future soil and in turn is counter to the sustainability of life in the basin.

The Estancia Basin currently has nearly pristine air quality. Though the emissions from the biomass power plant may comply with air pollution standards, the smoke stack is still a new source, annually belching 231 tons of nitrogen dioxide, 221 tons of carbon monoxide, 48 tons of volatile organic compounds, 40 tons of sulfur dioxide, 79 tons of particulate matter, not to mention toxic chemicals including mercury and formaldehyde. This air pollution is not there now.

The power plant proponents have never provided satellite imagery or any other credible demonstration that sufficient "excess" wood is present for its 30-year lifetime. The power plant will require about 480,000 tons of chipped forest a year and to be cost effective, the forests providing the wood chips must be within a 50-mile radius. The USGS (http://ftp.nr.usu.edu/swgap/ demonstrates that there are 1.28 million acres of piñon-juniper on all state, federal and private lands in a 50-mile radius around Estancia. This includes the Sandia, Manzano and Gallinas mountains and surrounding foothills as well as the Chupadero Mesa, Clines Corners and other upland areas.

The Forest Service has reported from Nevada that piñon-juniper thinning produced 5 tons per acre on the low end and 20.6 tons per acre on the high end with the averages around 8 to 12 tons per acre (http://lcrda.com/images/ResourceConceptsAugust2004.pdf).

If one uses 10 tons per acre for a basic calculation, the result is less than impressive. If all acres of piñon-juniper in the 50-mile radius were aggressively thinned the plant could be fueled for 26.6 years. But realistically only a fraction of those acres will be available to WWP resulting in a grim projection for its viability and undue pressure on the basin's limited forests.

This calculation ignores the wood annually removed by local cutters for home heating in the region. Where will they go for wood? Forest Guardians continues to stand-by the NM Forest Restoration Principles but those guidelines only address forests other than piñon-juniper. (http://www.fs.fed.us/r3/spf/nm-restor-principles-122006.pdf

In fact, the principles addressing piñon-juniper harvest remain unfinished because the science is incomplete.

It is surprising to see WWP continue to exploit our anxiety about wildfire and water use in piñon-juniper forests. Fire in piñon-juniper forests is uncommon; grasslands tend to burn more often and more fiercely. It takes rare weather conditions and steep terrain to get a fire roaring through piñon-juniper. As for water and aquifers, the latest research from the basin, as reported in the Mountain View Telegraph on June 28, demonstrates that thinning piñon-juniper forests will have no recharge effect on the Estancia Basin aquifer. In fact, shallow soil moisture is recharged faster through the root systems of piñon and juniper trees than in bare grasslands.

The bottom line is that Mr. Cohen is grasping at straws to justify his corporation's ire to build a biomass power plant: a marginal proposition at best in our dry, lightly forested region. Now that WWP has received its air pollution permit from the state, the power plant is one step closer to reality. But biomass has a dark side and if we are going to seriously consider it as a power source in New Mexico, we must demand it be clean, renewable, and not unduly impact our water, wildlife and forests. The viable alternative is solar and wind, not coal, oil or gas.

Bryan Bird is Public Lands Director at Forest Guardians, a regional conservation organization that protects and restores wildlife and wildlands in the West. For more detailed information on the proposed biomass plant, visit http://www.biomassinfo.blogspot.com/

EDITORIAL

2007-08-10T13:32:00.000-07:00

Biomass Poses 'Treacherous' Path
Friday, August 10, 2007
Albuquerque Journal
by Bryan Bird, Forest Guardians

As Gov. Bill Richardson and the state of New Mexico embark on their admirable Climate Change Action Plan, the pursuit of energy solutions, particularly clean, renewable and domestic, is on the fast track. The desire for a quick fix such as the proposed Estancia forest biomass facility is raising tough questions that require immediate attention. Without caution, we will do more harm than good to our health and environment.

Biomass is being pushed hard, both at the state and federal levels, as a domestic, clean and renewable energy along with solar and wind. The U.S. House passed a bill Aug. 4, sponsored by Rep. Tom Udall, D-N.M., which will require utilities nationally to produce 15 percent of their electricity from renewable sources and provides energy credits for electricity produced from biomass. However, without the appropriate controls on emissions, water consumption and forest cutting, this path is treacherous.

Biomass energy generally comes from three sources: burning wood, burning waste, and burning alcohol fuels. Wood energy may be produced from trees harvested for fuel (both from plantations and native forests) as well as from wood waste streams (construction, green waste, etc.). What should be of concern to us, the owners of federal and state forestlands, is that trees and brush would be harvested from forest lands for the sake of energy production at the expense of other critical services including: carbon sequestration, water storage and purification, wildlife habitat, and real estate values (aesthetics).

The fundamental problem with burning wood to generate energy is that it is not always clean, nor is it necessarily renewable. In most incarnations, native woody biomass does not belong in the nation's renewable energy portfolio, it belongs in the forest, building soils and storing carbon. Burning woody material generates air pollution and releases greenhouse gases, not to mention toxic air pollutants such as formaldehyde. Expensive air pollution controls can reduce these emissions to meet National Ambient Air Quality Standards or better, so that burning trees could feasibly be cleaner than coal or natural gas.

Most if not all energy sources produce greenhouse gasses and air pollution both in production and maintenance of facilities, but discounting these sources, only solar and wind are in fact zero emissions. Forest biomass energy could be "carbon neutral" and offset greenhouse gas production, but only under very controlled conditions such as fast-growing plantations and if there was a guarantee that an equal amount of energy would not be generated elsewhere with fossil fuels.

Whether forest biomass is renewable is equally subjective; forests are complex systems. A forest wastes nothing and depending on climate and other local conditions may take hundreds of years to reach maturity. But power plants need fuel now and will eventually outstrip excess woody growth that may have built up through years of fire suppression.

Before long, we'll be mining forests for electricity just as we do coal. Biomass energy facilities require cooling and enormous amounts of water. Depending on where a facility is located, water can be a significant limiting factor and there is simply no evidence that thinning forests contributes to long-term increases in water yield.

Before we rush to burn our forests for a tiny amount of our overall energy consumption, some difficult questions must be answered. Once these questions are honestly addressed with such proven tools as full life-cycle accounting of greenhouse gasses, the answers will point directly to solar and wind as the only viable, long-term solutions currently available. Then, of course, there is the simplest solution of all— reducing our individual and cumulative consumption of energy.

Bryan Bird is Public Lands Director at Forest Guardians, a regional conservation organization that protects and restores wildlife and wildlands in the West.

SUMMARY OF BIOMASS ISSUES

2007-04-15T15:57:00.000-07:00

The proposed Estancia Basin Biomass Power Plant will pollute the air and deplete precious natural resources. What happens when there are no more trees to harvest and the water runs out and there are law suits filed by citizens who develop serious health problems? Would you want this plant in your neighborhood? Would you want this to be your legacy?

Concerned citizens request that you review this matter. We have provided an executive summary below and a detailed PowerPoint presentation with facts and figures to support our position.

EXECUTIVE SUMMARY

The New Mexico Renewable Energy Act of 2004 requires public utilities to purchase no less than 10% of their energy from clean renewable energy sources by 2011 and 20% by 2020 to promote energy self-sufficiency, preserve the state’s natural resources and pursue an improved environment in New Mexico.

What the Power Plant is NOT

The proposed Estancia Basin Biomass Power Generation Plant is NOT a clean renewable energy source; it does not preserve the states natural resources and will be a major source of pollution … a detriment to New Mexico’s environment.

NOT Clean

This plant is predicted to generate over 700 tons of pollutants ever year. The major ones are (see slides 8 – 10 for a complete list):

• Nitrogen Dioxide – 231 tons
• Carbon Monoxide - 221 tons
• Volatile Organic Compounds – 48 tons
• Sulfur Dioxide – 40 tons
• Particulate Matter (total suspended) – 79 tons
• Many toxic chemicals including mercury and formaldehyde

This list does not include the emissions generated by equipment and trucks used to harvest and transport the trees.

Burning trees releases greenhouse gases to the atmosphere.
• NOx is 360 times as harmful as CO2
• CO becomes CO2 in the atmosphere

Increased levels of CO2 in the atmosphere is a major contributor to Global Warming – So why build a plant that you know will add to the Global Warming problem? Why not build a plant that is solar or wind powered --- clean and renewable sources of energy!

NOT A RENEWABLE ENERGY SOURCE

Not a renewable energy source – Biomass harvest cannot exceed forest growth in order to be renewable and should not qualify as a renewable energy source under REA if this is exceeded

• Estancia biomass will burn 55 tons of trees per hour or 480,000 tons per year
• At 0.66 tons per acre of actual renewable biomass (USDA Forest Inventory database), the plant would require 720,000 acres of National Forest
• The Sandias, Manzanos, and Gallinas combined only have 337,000 acres
• Assuming a generous annual growth rate of 0.24 tons/acre in pinon-juniper forests, the currently leased 43,000 acres of state lands will yield about 10,000 tons of renewable biomass per year. This would only be enough renewable biomass to power the Estancia plant for 7.5 days. These lands will have to be clear cut and this by definition is not renewable.

DOES NOT PRESERVE THE STATE’S NATURAL RESOURCES

• Water - In a closed basin that is running out of water the transfer of 457 acre-feet per year (1828 houses) of consumptive use has been requested for the biomass plant
• Road damage - Dramatic increase in road traffic especially rural roads, repairs to roads paid for with tax dollars, results in need for more tax dollars that are not coming from WWP because they have been awarded tax breaks.
• Fire - Increased fire risk due to increased human access and large slash piles
• Traffic accidents - due to increased road traffic
• Soil damage and erosion from thinning/hauling
• Wildlife Habitat damage

So the proposed Biomass Plant is not clean, is detrimental to the environment, contributes to global warming and is a health hazard (consequence of pollutants) to citizens. AND solar and wind powered energy (clean and renewable) ARE an option. WHY BUILD THE BIOMASS PLANT AS PROPOSED? No sane person would move forward with such a plant. Do you want this responsibility on your shoulders?

Op-eds and Letters

2007-04-04T15:33:00.000-07:00

Guest View: Is Clean Air Worth a Few Jobs?
Thursday, March 22, 2007
Op-ed, Mountain View Telegraph
By Jan Eshleman

The proposed biomass energy plant, theoretically a "clean and renewable" source of energy, to be built south of Estancia raises concerns on several fronts. The plant itself promises to put "no more than 230 tons a year" of nitrogen oxides and "221 tons a year" of carbon monoxide into the New Mexico air, this according to Jack Maddox, vice president of Western Water and Power Production Limited, LLC.

In addition it would also contribute 40 tons of sulfur dioxide, 48.3 tons of volatile organic compounds (including formaldehyde) and 58.9 tons of particulate matter into the air. Incidentally 34.4 tons of the total particulate matter would measure 2.5 microns or less, small enough to infiltrate your lungs but not large enough to cough out. These numbers come from WWP's permit application from the New Mexico Department of Environment Air Quality Bureau. As of this writing, the Air Quality Bureau will probably issue a permit to Western Water and Power.

Despite the tonnage of pollutants these numbers still meet the current standards for allowable emissions. It is interesting to note that under this nation's Clean Air Act, because this plant will produce emissions above 100 tons it is classified as a "major source of pollution." The wording alone makes it difficult to see this as a "clean" source of energy.

Currently the primary source of fuel for the plant is to be piñon and juniper harvested from a 40,000-acre parcel of State Trust Land between Gran Quivira and Abo pueblo ruins. According to averages calculated by archaeologists in the State Land Office there could be 800 archaeological sites in this area. Western Water and Power acquired the lease during a public auction held Dec. 28, 2006.

Curiously, WWP was the only entity that was qualified to bid according to the parameters drawn up by the State Land Office, despite the fact that there were others who wanted to bid in this "public" auction. As for the fuel, piñon and juniper— piñon trees taller than three feet are generally 50-230 years old in New Mexico, and the U.S. Forest service recommends 200-year-rotation management for juniper.

This time frame seems to push the envelope on defining this type fuel as "renewable." Even the economic viability of this plant seems questionable. Phil Reese of Reese-Chambers runs an apparently successful 50-megawatt biomass plant near Los Angeles, Calif. He said many new biomass plant developers "grossly underestimate their fuel costs and seriously, seriously, seriously underestimate their operating expenses." He also said that if this plant cannot sell electricity at 9 cents per kilowatt hour "they'll never make it."

Two things to note here; half of California's biomass plants have closed due to economic inviability and Western Water and Power cannot charge more than 6.2 cents per kilowatt hour. Twice PNM rejected WWP's proposal quite likely because it did not seem economically viable. Enter Sen. Jeff Bingaman and Rep. Heather Wilson. All of a sudden the proposed plant now seems economically viable— hmmm ... For how long? Will it be built and never operate? Or maybe operate for a year? Will it really be able to provide the "long-term" jobs that they say it will? Will Torrance County be stuck with a steel dinosaur when they leave?

The other concern might be water. The proposed site of the plant is in a "critical management area" of the Estancia Basin. Yes they will be sharing existing water rights with the greenhouse and have currently applied for a diversion of 453.78 acre-feet for consumptive use. That 453.78 acre-feet would provide water for more than 900 homes. In a 2001-2002 brochure published by the Estancia Basin Regional Water Plan it was estimated that "there is only a 120-year water supply in the basin at current use, and accelerated new water rights applications (12,847 acre-feet since 1995) further threatens that supply."

The 50-megawatt plant in California uses 800 gallons of water per minute, this is evaporative use (consumptive use) in its cooling towers. This is called "wet" cooling. The current request for diversion of 453.78 acre-feet would provide Estancia's biomass plant a maximum of 250 gallons per minute. Granted, this is a 35-megawatt plant, not 50; granted some of the cooling will occur as excess steam is piped through the greenhouse for heating. Note too that the greenhouse doesn't need heating in much of the spring, none of the summer nor much of the fall, and WWP plans to keep the dust level down on the roads in and out of the plant with water trucks.

You could ask questions like why Western Water and Power is using "wet" cooling technology instead of "air" cooling as is being used in Arizona and Nevada. And you might ask why WWP is not using a catalytic converter that could reduce its overall emissions by nearly 50 percent. Another question you might ask is the logic behind burning trees that will emit tons of carbon monoxide (that becomes carbon dioxide when it hits the atmosphere) when it is those very trees that absorb carbon dioxide and provide us with oxygen in return. In New Mexico that is science that third-graders learn!

Some have characterized juniper as "tumbleweed trees." Even if that is how you view them they still make oxygen that we as humans cannot live without. The National Aeronautic and Space Administration (NASA) has said "Deforestation is the second major way we increase atmospheric carbon dioxide." Second only to the burning of fossil fuels! In the current scenario it seems that the residents of the Estancia Valley are being asked to choose between having water and clean air or having a few new jobs for a while maybe. It seems the more important question to ask is why not generate this electricity by wind or solar power and not have to sacrifice water or clean air, but maybe a few jobs.

New Mexico Renewable Energy Act Needs Teeth
March 10, 2007
Op-ed, Albuquerque Journal
By Bud Latven

Designed to provide clean renewable energy for the state of New Mexico, the Renewable Energy Act (REA) of 2004 has a major loophole designed to allow biomass power plants to emit acid rain pollutants (nitrogen oxides) at a rate which is over 50% of typical coal fired plants in the US. In recent speeches Governor Richardson even touted biomass as a "clean" renewable source of energy. He may come to regret this ill-considered comment.

The REA defines "renewable" as energy generated by solar, wind, hydroelectric, geothermal and biomass. This leaves the general public with the false impression that biomass is a clean energy alternative. This is aggravated by a little known loophole in the act which is called the "zero to low emission technology" standard.

At first glance one would think that low emission technology means that energy producers are required to install the best available pollution control equipment to minimize toxic emissions. This is not the case. In reality there is no numeric standard set for what low emissions actually are so the Air Quality Bureau of the Environment Department simply regulates biomass under the same guidelines as a typical coal fired plant.

EPA's national emission tracking system estimates that an average coal fired plant in the US emits nitrogen oxides, the stuff of industrial pollution and acid rain, at a rate of 2.8 lbs per hour per megawatt of power. A recently proposed biomass plant for Estancia valley in central New Mexico, if built, plans to emit nitrogen oxides at a rate of 1.5 lbs per hour per megawatt. This is a rate over 53% of a typical coal fired plant. This plant plans to emit over 230 tons per year of nitrogen oxides, 220 tons of carbon monoxide and hundreds of tons of other pollutants like sulfur dioxide, volatile organic compounds and small particulates.

This problem is not unique to New Mexico. The deceptive and meaningless "zero to low emission" qualification can also be found in other state renewable energy acts. It appears that this qualifier was intentionally designed to allow biomass to slip into the renewable energy portfolios of energy companies to help them meet their renewable energy requirements without actually being required to ensure their suppliers use the best available technology to reduce emissions. PNM can turn its cheek on "clean" and buy dirty energy from biomass while at the same time preach their "Sky Blue" program to the public.

To add insult to injury, biomass, like coal, is not only a dirty energy alternative, it siphons valuable funds away from truly clean energy alternatives like solar and wind.

Without a numeric standard, biomass electric producers have no incentive to install more costly pollution controls. Quite the contrary. The Estancia biomass plant appears to be designed to be just under the 250 tons per year threshold for stricter pollution controls. If the 250 ton per year threshold were exceeded, more costly pollution controls would be required by state law. Further, since the plant design is based on the consumption of thinned wood, if the plant decides in the future to burn other fuel types and exceed the threshold, it won't be required to upgrade the facility since it won't be cost effective. In effect they're allowed to produce the highest rate of pollution at the least cost. And you can blame them because they want to minimize costs and maximize profits.

It's really a legislative issue. True low emission technologies are available that would greatly reduce emissions; there's just no political will to require energy producers to install them.

It's a public deception, one where politicians pronounce their support for clean energy alternatives while management agencies like the Public Regulation Commission and the Environment Department know that biomass is a dirty little business. It's time our legislators get down to the work of putting some real teeth in the Renewable Energy Act and establish a true standard for low emission technology. If we lead the way, maybe other states will follow suit.

Energy plan is ill-conceived
December 21, 2006
Letters to Outlook, Albuquerque Journal
By Bud Latven

If you support the PNM Energy Rebate plan you may be unwittingly contributing to the future destruction of forest health and archaeological resources in New Mexico. You may also be contributing to the emission of large amounts of nitrogen oxides, carbon monoxide, sulfur dioxide and fine particulate pollution. This ill-conceived plan was developed with the encouragement of Governor Richardson in an attempt to spur the development of alternative energy sources such as wind and solar and the use of biomass as a renewable resource. This last is the main culprit.

A recent PNM newsletter sent out to all its customers talks about “a new 35 megawatt biomass power plant owned and operated by Western Water and Power (WWPP)… the first utility-scale biomass plant in New Mexico… to go into service in 2009 … located in Torrance County.” This plan says it will use forest thinnings as fuel from forest and rangelands to help “reduce hazardous fuels and restore ecological health.” What it doesn’t say is that a consuming need for these fuels will unalterably change the management of forest and rangeland from one of preservation and conservation to one of fuels management and production.

We have already seen this in a recent objection to a USFS plan to exploit 17,000 acres in the Manzano Mountains to fuel this same proposed biomass plant. Local residents joined hands and strongly opposed the USFS management plan to cut 33 miles of fire fuelbreaks and 17,000 acres for thinning projects to protect about a dozen homes. It was a blatant attempt to use the Bush Healthy Forests initiative to exploit forest products at the expense of forest health. Local residents forced the Forest Service’s hand on this issue and they reluctantly backed off.

With this setback, the WWPP is now looking to purchase at auction 40,000 acres of pinon and juniper on state lands directly adjacent to Gran Quivira National Monument south of Mountainair, New Mexico. This land is covered with archaeological ruins including full-sized pueblos and many rock art sites. Calls to the Salinas National Monument and the State Historic Preservation Division showed that neither agency was informed about the proposed State Land Office auction set for December 28 this year.

An upcoming state mandate will require PNM to produce a percentage of its energy from renewable sources by 2010 so now PNM is pushing the biomass plant concept without giving serious consideration as to where these fuels will actually come from. They are leaving that up to the state and federal agencies who are now getting pressure to produce fuels to help PNM meet the state mandate through biomass use. This is shaping up to be a major conflict between the maintenance of forest and rangeland health and the need for commercial products. Environmental lawsuits are sure to follow.

So if you are supporting the PNM Energy rebate plan, you may be in effect supporting the mismanagement of our forests, the possible destruction of archaeological sites and the pollution of the air we breathe. The State Government, PNM and the biomass industry would like you to believe that biomass fuel use is a benign healthy alternative to fossil fuels like solar and wind but when you look at the actual effects to the environment, it’s anything but that. And we have to live with the results.

Who to contact

2007-03-25T14:11:00.000-07:00

Government

Rhonda King (State Representative), 505-986-4438 capital office, 505-832-5050 office, 505-832-4603 home, to email: Allison: aj_morgado@umail.ucsb.edu
Pete Campos (State Senator), capital office: 505-986-4311, home office: 505-454-5700, petecampos@newmexico.com
Bill Richardson (Governor), 505-476-2217, http://www.governor.state.nm.us/email.php?mm=6&type=assistance
Sarah Cottrell (Governor's Energy and Environment Advisor), 505-827-3000
Patrick Lyons (State Land Commissioner, land auction issue), 505-827-5760
David Eck, (State Land Office Archaeologist), 505-827-5857
Lawrence Alires (Air Qualtiy Bureau, NM Env Dept), 505-955-8020, lawrence.alires@state.nm.us
Sufi Mustafa (Air Quality Bureau, Modeling), 955-8087
Jeff Bingaman, 800-443-8658, 202-224-1792, senator_bingaman@bingaman.senate.gov
Heather Wilson, 202-225-6316, 505-346-6781, http://wilson.house.gov/Contact.asp
Pete Domenici, 202-224-6621, 505-346-6791, http://domenici.senate.gov/contact/contactform.cfm

Others

Bryan Bird (Program Director, Forest Guardians), 505-988-9126, x157, bbird@fguardian.org
Marc Christensen (Director, Corp Communications, PNM), 505-241-2882, Marc.Christensen@pnmresources.com
Jack Mattox (VP, Western Water and Power), 332-3279
Jim Baca, 244-0031, 263-9995, jbaca16@comcast.net

Press

Paul Bert (KRQE news), 764-5235, paul.bert@krqe.com
Wally Gordon (Editor, Independent), 286-1212
Kevin Bean (Op-Eds, Independent), 293-9208, kevinbean06@comcast.net
Tania Soussan (Op-Eds, Abq Journal), 823-3833, tsoussan@abqjournal.com
Steve Mills (Editor, Abq Journal), smills@abqjournal.com
John Brennan (Editor, MtView Telegraph), 823-7101, jbrennan@mvtelegraph.com
Harry Moscas (letters-to-the editor, Journal), 823-3837, http://www.abqjournal.com/letters_form.htm
KASA News: kasa@kasa.com
KOAT News: koatdesk@hearst.com
KOB News: news@kobtv.com
KOB News: kobnews@swcp.com
KRQE News: newsdesk@krqe.com
KRQE News: johnny.chandler@krqe.com
KRQE News: paul.burt@krqe.com
KRST News: krst@citcomm.com
KUNM News: kunmnews@unm.edu
KUNM News: news@kunm.org
Newstips: newstips@thenewmexicochannel.com