West Virginia To Help Clean the Chesapeake Bay

West Virginia contributes relatively little flow to the Chesapeake Bay, and consequently few of the pollutants that have degraded the Bay over the past many years. Nevertheless, every bit counts, and the Eastern Panhandle will likely see additional reductions in nutrient loading (principally nitrogen and phosphorus) from publicly-owned treatment works (POTWs), which is the official name for the local sanitary sewer facility that most of us flush to. Most of the nutrient loading that runs to the Bay comes from POTWs and from lawn and farm storm water run off.

EPA is going to develop a total maximum daily load, or TMDL, that will restrict the amounts of nutrients that can be discharged into the tributaries that flow into the Bay. Each state will then be charged with making sure the sources in its state don't discharge more than they are allotted under the TMDL. Many states, with lare cities on the banks of the Potomac and Susquehana, as well as those cities on the Bay itself, are going to incur a lot of expense in order to come into compliance with the new limits. For its part, West Virginia has already passed legislation to allow the DEP the authority to impose additional treatment requirements on Eastern Panhandle dischargers if they are necessary to comply with the TMDL. W. Va. Code 22-11-30.

EPA recently sent a letter telling states its plan for protecting the Bay. The press release follows; the EPA letter is hyperlinked at the bottom of the press release.

EPA Outlines Framework for Holding States, D.C. Accountable for Reducing Chesapeake Bay Watershed Pollution; Additional $11.2 Million Provided

PHILADELPHIA (December 29, 2009) - The U.S. Environmental Protection Agency has completed the creation of a rigorous accountability framework for reducing pollution in the Chesapeake Bay and the region’s streams, creeks and rivers. A letter sent today to the six states in the Bay watershed and the District of Columbia outlined a series of consequences EPA could impose if jurisdictions do not make adequate progress in reducing water pollution.
“President Obama, EPA and the states want real, measurable results to restore and protect the Chesapeake Bay. To get there EPA is strengthening support for our partners, setting clear standards for progress, and ensuring accountability if those standards aren’t met,” said EPA Administrator Lisa P. Jackson. “Pollution in the Chesapeake is a challenge that has persisted for decades. This federal-state partnership presents new opportunities for cleanup, and we’re increasing support and accountability to be sure we get the job done.”
Federal, state and local officials have been working together on development of the Chesapeake Bay Total Maximum Daily Load (TMDL), a pollution budget that will set limits for sources of nitrogen, phosphorus and sediment to the Bay and its tidal creeks, rivers and bays. EPA is confident the collaborative work will continue and that the states and D.C. will successfully meet expectations for reducing water pollution. The series of consequences will serve as a backstop, however, to achieving water quality goals.
To help the states and D.C. improve the performance and accountability of pollution control programs, EPA will provide technical assistance and an additional $11.2 million in grants for fiscal year 2010, more than doubling 2009 funding levels to the states. The funds are designed to improve permitting, enforcement and other key regulatory activities that increase accountability for reducing water pollution.
EPA is creating the rigorous accountability framework for accelerating cleanup of the Chesapeake Bay and the region’s waterways by utilizing the authorities of the Clean Water Act, President Obama’s Executive Order and the Chesapeake Bay TMDL. Letters to the states and D.C. in September 2008 and November 2009 stated that the jurisdictions must create strategies and schedules for reducing water pollution loads as part of the accountability framework.
While the six Bay states – Delaware, Maryland, New York, Pennsylvania, Virginia and West Virginia – and D.C. have considerable flexibility in how they achieve reductions, the jurisdictions must meet milestones every two years for implementing pollution controls. EPA may impose a variety of consequences for inadequate plans or failure to meet the milestones, including:
Expanding coverage of National Pollutant Discharge Elimination System (NPDES) permits to sources that are currently unregulated.
Increasing oversight of state-issued NPDES permits.
Requiring additional pollution reductions from point sources such as wastewater treatment plants.
Increasing federal enforcement and compliance in the watershed.
Prohibiting new or expanded pollution discharges unless sufficient offsets are provided.
Redirecting EPA grants.
Revising water quality standards to better protect local and downstream waters.
Establishing finer scale load allocations in the Bay TMDL.
Within 60 days of receiving a deliverable – such as a plan, milestone or permit – EPA will provide an assessment. If EPA finds a deliverable inadequate, the state or D.C. will then have 30 days to respond. EPA will deliver its final assessment and indicate any consequence the agency intends to impose within 120 days of the original submission.

The Chesapeake Bay TMDL will be completed by December 31, 2010. Under the TMDL, EPA expects the states and D.C. to provide specific timelines for enhancing programs and implementing controls to reduce pollution. By November 2010, the states and D.C. are required to identify gaps in current programs that must be addressed to meet pollution limits. Bridging these gaps may require expanding regulatory authorities, improving compliance with existing regulations, securing additional financial resources and issuing more stringent permits for wastewater facilities.

By 2011, EPA expects the states and D.C. to divide their allocated pollution loads to the local level so that counties, municipalities, conservation districts and watershed organizations understand their role in meeting water quality goals. States and D.C. must also offset any increased loads from population growth and land use changes anticipated in the coming decades. EPA expects that pollution controls will be in place that should result in approximately 60 percent of the required reductions by 2017. All measures needed to reach the pollution load limits must be in place no later than 2025.

To view the letter visit http://www.epa.gov/region03/chesapeake/bay_letter_1209.pdf

West Virginia DEP to Allow Mining Discharges to Dunkard Creek

The West Virginia DEP has announced that it will allow drawdown of an underground water pool that contributed to golden algae blooms and fish kills this past summer in Dunkard Creek. The drawdown is being allowed to protect miners at a Consol mine, and is environmentally safe given low temperatures that currently predominate. As temperatures rise, lower limits will be prescribed. The news release issued by the DEP follows.

West Virginia DEP Issues Order to Dunkard Creek Mining Facility

The West Virginia Department of Environmental Protection has issued an order to Consolidation Coal Company (Consol) that establishes guidelines for the company to resume pumping water from its underground mining operations that straddle the border between West Virginia and Pennsylvania.

The order is a short-term order that would allow pumping under controlled conditions from the effective date of the order until it expires on April 30, 2010. It allows Consol to resume pumping to bring the mine pool to a level that creates possible storage capacity that can be used as a water management tool during low flow, high temperature months and ensure the safety of the approximately 400 miners working underground at its Blacksville No. 2 mine.

Consol voluntarily ceased pumping water from the mine works into Dunkard Creek in cooperation with the multi-state investigation of the cause of a major fish kill that spanned more than 40 miles of the stream.

Based on information concerning the conditions favorable to the growth of golden algae, the probability for an algae bloom increases when the water temperature rises above 50 degrees. Therefore, when the water temperature is 50 degrees or higher, the in-stream limit that must be met by Consol is 860 milligrams per liter, which is the acute water quality standard for chloride in West Virginia.

For temperatures between 40 and 50 degrees Fahrenheit the limits would decrease as the temperature increases. In the meantime, when the water temperature is below 40 degrees Fahrenheit, and the probability for an algae bloom is low, the company must meet an in-stream limit of 1,400 mg/l.

“What we have learned from golden algae experts from around the country is that this alga is less likely to bloom, and produce toxins in cooler water temperatures,” said Scott Mandirola, assistant director of the Division of Water and Waste Management. “So while the risk is low during the cold and wet season, we believe it is safe for the company to pump down the mine pool as much as possible. Once the temperatures begin to rise, more stringent limits will go into effect.”

The order calls for chloride and conductivity monitoring to be conducted at Blacksville No. 2’s discharge point and downstream in West Virginia Fork of Dunkard Creek. The company will also conduct monitoring for additional parameters of concern identified during the fish kill investigation, including algae and selenium.

Although the order is considered a short-term one, it also addresses long-term issues. Under the order, Consol must complete and submit a proposal for the construction of treatment plants for its operations in northern and north- western West Virginia. The draft proposal is due to the WVDEP by April 15, 2010, and the project must be completed by May 31, 2013. The first treatment plant to be completed would remove problematic discharges from Dunkard Creek.
Additionally, all other outlets that are the subject of WVDEP Order 133C would be addressed in the proposal.

The WVDEP sought input and concurrence from the Environmental Protection Agency and the Pennsylvania DEP prior to issuing the order to Consol.

“This order is a unilateral order by the state of West Virginia, which does not require approval by the Environmental Protection Agency,” said Cabinet Secretary Randy Huffman. “However, we have been working very closely with EPA and the Pennsylvania DEP from the beginning of this event, and it is critical that they have had a seat at the table. This is an important interstate issue.”

“While it is clear that total dissolved solids are a major factor in the puzzle, it’s not the only factor,” Mandirola said.

The agency’s biologists and engineers have learned a great deal about the algae, yet there is still more that is unclear including what combination of factors has to be in place for the algae to bloom, and what triggers the algae to produce the toxins that actually killed the fish.

“We, like everyone else familiar with this event, don’t want this to happen again and with the input of our counterparts in Pennsylvania and at the EPA, and have put together a workable plan that is intended to prevent another toxic algae bloom,” Mandirola said.

West Virginia DHHR Releases Sport Fish Advisory

The West Virginia Department of Health and Human Services has released the 2010 sport fish consumption advisory. This is an annual report by the DHHR providing information that allows consumers to make decisions about consuming fish in the state. It is not, as some people believe, a regulation or law, and it is not a finding that the streams are impaired. The advisory is based on a relatively limited data set, and for that reason the recommendations are conservative, erring on the side of caution.

The following is taken from the DHHR website, and explains more about the advisory and offers a link to the US FDA advisories:

Certain West Virginia sport fish have been found to have low levels of chemicals like polychlorinated biphenyls (PCBs), mercury, selenium and dioxin. To protect the good health of West Virginians, the West Virginia DHHR offers an advisory for how often these fish can be safely eaten. An advisory is advice, and should not be viewed as law or regulation. It is intended to help anglers and their families make educated choices about: where to fish, what types of fish to eat, how to limit the amount and frequency of fish eaten, and how to prepare and cook fish to reduce contaminants.

This advisory covers only sport fish caught in West Virginia waters. Safety regulations and advisories for fish in the market place are the responsibility of the Federal Food and Drug Administration (FDA). For more information you can contact the FDA at: http://www.fda.gov/Food/ResourcesForYou/Consumers/ucm110591.htm

West Virginia Wind Project Put On Hold By District Court Ruling

A federal judge has held up the 100.5-megawatt Beech Ridge Wind Farm in Greenbrier County, West Virginia until developers get an incidental take permit from the US Fish & Wildlife Service under the Endangered Species Act. The judge ruled that the wind turbines would necessarily kill Indiana bats, which are an endangered specie. The ruling doesn't kill the project, but it will halt development until the permit is obtained, and it sets a precedent for wind projects across the nation that are located near populations or flyways of endangered birds and bats.

George Hohmann of the Daily Mail has a good article on the story. Here's the opinion issued by US District Court judge Roger Titus. The Washington Post reported on it, as has ReCharge, which has a picture of the bat if you want to see it.

Geothermal Power and Earthquakes

Swiss earthquakes from geothermal drilling? I had heard the oil and gas drilling could contribute to earthquakes - I believe similar allegations were made in Texas with regard to the Barnett Shale play - but this was the first time I heard of it in connection with drilling for geothermal energy. Geothermal Basel was trying to drill down 3 miles to hit rock, and caused small earthquakes in the process. At least that is what was alleged.

It's further proof of this axiom - there is no free lunch, and no power source without some drawback.

Rep. Capito Speaks On Climate Change, Will Head to Copenhagen

Here's sign of how nuanced the climate debate is becoming - Shelly Moore Capito, a moderate Republican from a coal state, says she doesn't take issue with the science showing some anthropogenic global warming, but she questions the doomsday analysis that is put forward in support of draconian limits on carbon emissions. She is headed to Copenhagen to attend the climate conference to make certain that coal interests are protected in a reasonable fashion. I'm not certain what exactly she'll do, but she can't do any more harm than our own negotiators seem bent on doing.

I think Capito is spot on. The earth has been warming, and we can debate the role that carbon dioxide plays in that, but certain things also seem true. The computer models showing widespread harm as a result of warming, the "tipping point" analyses, and other cries of wolf cannot be given any credence in light of their failure to predict relatively flat temperatures over the past 10 years. To dramatically restrict fossil fuel use based on those predictions is irresponsible, especially in the developing world. And even if limits are agreed to, there's no current way to verify reductions, as this article from USA Today reports.

Having said that, the political pressures are too strong at this point to avoid regulation of carbon dioxide as a pollutant of concern. Lisa Jackson's recent announcement that carbon dioxide and other GHGs endanger the United states, while completely overblown, sets in motion a regulatory program that will inexorably lead to far greater restrictions on GHGs than Republicans and moderate Democrats would agree to in Congress. In short, there will have to be a bill, hopefully not Waxman-Markey, that will require some CO2 cuts but nothing to the degree that would otherwise be required by the Clean Air Act.

EPA Shares Toxics Release Inventory Data for 2008

EPA has just released its TRI data for 2008. It is interesting to note that the amount of toxics released in West Virginia dropped from 102,169,791 pounds in 2006 to 85,208,385 in 2007 and to 71,836,385 in 2008. See the press release and associated web links below.

PHILADELPHIA (December 8, 2009) -- The U.S. Environmental Protection Agency released today the 2008 Toxics Release Inventory (TRI) which provides information on toxic chemicals used and released by utilities, refineries, chemical manufacturers, paper companies, and many other facilities across the nation. The TRI is compiled from data submitted to EPA and the States by industry.

In EPA’s mid-Atlantic region, the 2008 TRI data indicate a 9.1 percent decrease of 35.2 million pounds of on and off site chemical releases as compared with 2007. A total of 350 million pounds of chemicals were released during 2008 to the air, water or landfills by facilities in the mid-Atlantic region which includes Pennsylvania, Delaware, Maryland, Virginia, West Virginia and the District of Columbia.

When compared with the 2000 TRI data of 478.0 million pounds released, the 2008 figures represent a 27.0 percent reduction (128.0 million pounds) in toxic pollutants released by facilities in the region. This was accomplished by process modifications, raw material substitution and pollution control equipment.

“The TRI is a valuable resource for citizens and government alike,” said Shawn Garvin, EPA mid-Atlantic regional administrator. “Communities can use these data to begin dialogues with local facilities to encourage them to reduce emissions or develop pollution prevention plans. Public interest groups use it to educate the public about toxic chemical emissions and potential risk. And EPA and the states use it to set priorities and allocate environmental protection resources to the most pressing problems.”

The TRI provides communities with valuable knowledge and encourages facilities to reduce their releases of toxic chemicals into the environment through source reduction or pollution prevention measures.

Today’s data include information on releases and other wastes from more than 650 chemicals and chemical compounds that companies are required to report under EPA’s Toxic Release Inventory Program. The data include chemicals that were released at the company’s facility and those transported to disposal facilities off site.

The lead and lead compound data for on and off-site releases show an increase from 5.7 million pounds in 2007 to 6.6 million pounds in 2008. Since 2002 there has been a decrease of 1.6 million pounds from 8.2 million pounds to 6.6 million pounds in 2008. The mercury and mercury compound data show an increase from 45.3 thousand pounds in 2007 to 63.1 thousand pounds in 2008. In 2002 mercury and mercury compound releases were 61.6 thousand pounds.

The reporting of data to the TRI is required under the federal Emergency Planning and Community Right-to-Know Act (EPCRA), passed in 1986. The TRI provides the amount, location, and type of releases to the environment, whether a pollutant is emitted into the air, discharged into the water, or released onto the land. It also includes information on waste shipped off-site for disposal or further treatment.

It is important to note that these chemical emissions are reported to EPA under the TRI and generally do not reflect illegal discharges of pollutants to the environment.

TRI information is easily accessible online to the news media and the public at www.epa.gov/triexplorer. For more detailed information on a specific facility, go to: www.epa.gov/enviro/html/tris/tris_query.html

Cap and Trade Debate At The University of Charleston

On the same day that EPA Administrator Lisa Jackson announced that carbon dioxide endangers the health and safety of current and future generations of Americans, and Robert Kennedy Jr. led a mountaintop mining protest at the Department of Environmental Protection the Rotary Club of Charleston sponsored a debate on cap and trade legislation at the University of Charleston between David Hawkins of the NRDC and Patrick Michaels of the Cato Institute.

Unlike the Kennedy rally, the debate involved thoughtful exchanges between Hawkins, a proponent of cap and trade, and Michaels, an opponent. I won't try to summarize the debate - go to the Daily Mail article linked above for a report on that. However, it was interesting that Michaels is willing to concede that there could be some anthropogenic effects on the climate caused by greenhouse gas emissions, although he believes that all the data show that the effects are negligible, while the cost of cap and trade will be huge. He thinks the best way to deal with carbon dioxide emissions is to allow the market to direct investment toward low carbon energy sources. Hawkins makes a good case that cap and trade is the engine that drives investment toward greener energy. If you believe that climate change is endangering the earth (I don't) then cap and trade is the way to go.

So it really comes down to this - how real, and how dangerous, is climate change? The climate changes have not been siginificant so far, and if a fair accounting is made, there are some advantages to a warmer world. But if you believe in a tipping point beyond which environmental ruin occurs, then we need to drastically reduce CO2 immediately.

Here's something on the endangerment finding from the University of Pittsburgh law school website.

West Virginia, Federal Greenhouse Gas Reporting Rules in Conflict

US EPA recently finalized a rule at 40 CFR Part 98 that will require reporting of greenhouse gases (GHGs) by many sources by March of 2011 for calendar year 2010 emissions. The rule differs in significant ways from the DEP Division of Air Quality's reporting rule, found at 45 CSR 42. The DEP had promised, before adopting Reg 42, that it had no intention of setting up a duplicate or alternative GHG reporting scheme, and that it would set aside its rule if EPA adopted its own. That having occurred, we'll see if the Division of Air Quality drops its current rule.

Toyota, Dow Are West Virginia Members of EPA's Sustainability Partnership Program

PHILADELPHIA -- December 4, 2009) The U.S. Environmental Protection Agency’s mid-Atlantic region welcomed two new members into its Sustainability Partnership Program in two signing ceremonies held today.

EPA Regional Administrator Shawn M. Garvin joined Secretary Randy Huffman of the West Virginia Department of Environmental Protection in recognizing Toyota Motor Manufacturing West Virginia, Inc. at its Buffalo, W. Va., facility, and Dow West Virginia at its South Charleston facilities.

The Sustainability Partnership is an innovative program developed by EPA’s mid-Atlantic region to create a one-stop shopping approach for organizations that use large quantities of energy, water, and natural resources and want to “go green.” Instead of dealing with each of EPA's voluntary programs individually, EPA staff will work out a comprehensive ‘green’ plan for organizations that often saves money and makes good business sense. The overall goal of the SPP is to minimize the use of energy, resources and waste generation in the mid-Atlantic states.

"Today, both companies take a tremendous step forward in providing a more sustainable future for the people of West Virginia," said Garvin. "EPA is making a concerted effort to partner with states and businesses to improve environmental performance and make larger strides in sustaining our communities. And voluntary efforts that are initiated and tracked through programs like our Sustainability Partnership are a proven way to go."

”It’s a great day for Toyota and Dow as they have come a long way in the area of corporate sustainability,” said Secretary Huffman. “Toyota and Dow have learned to recognize the complementary relationships among the environment, economy and communities in West Virginia, and further realize that this Sustainability Partnership goes far beyond stakeholder involvement – it requires working within their facilities and with communities to tackle specific environmental issues.”

In 2000 Toyota’s Buffalo, W.Va. facility began implementing an environmental management system (EMS). Three years later, it had become, and remains, a zero landfill contributor -- reusing or recycling materials that otherwise would have been sent to landfills. By implementing the EMS and setting long-term goals, Toyota is already addressing ways to reduce waste, water usage, greenhouse gas emissions, hazardous materials usage and wastewater discharge.

At Dow West Virginia Operation’s South Charleston facility, the company has been working to reduce energy, water use, waste generation, and has increased the facility’s land and habitat conservation.
During a three-year demolition project, Dow saved 49,939 tons of concrete/masonry from going to the landfill by reusing the material. During 2007-2008, Dow recovered 3,726 tons of ferrous and non-ferrous metals for reuse; developed a 10-acre wildlife habitat certified by Wildlife Habitat Council; worked with South Charleston Middle School students to install birdhouses, plant native wildflowers and prairie grasses. Dow continues to work on the implementation of a wildlife management plan and is exploring collaborative opportunities with EPA and WVDEP to help schools remove hazardous materials and waste.

Additionally, Dow West Virginia’s South Charleston facility is implementing the American Chemistry Council’s Responsible Care Program, which requires CEO-level commitments to measure and publicly report environmental performance and to obtain independent certification that the company’s environmental management plan functions according to professional standards.

For more information about EPA mid-Atlantic’s Sustainable Partnership, go to http://www.epa.gov/reg3wcmd/spp/index.html

Cheating at the Game of Climate Change

The last thing the climate change lobby needed before the Copenhagen summit was a scandal about the way it develops its "overwhelming scientific consensus," but that's exactly what happened. A series of emails to and from the Climate Research Unit at the University of East Anglia in England was leaked to the press, revealing the sometimes devious methods used by those supplying data to the Intergovernmental Panel on Climate Change to bully and freeze out opposing views. Here is an opinion piece from the wall Street Journal that says it better than I can, as well as a report about a potential Congressional investigation. But most of all, a shout out to Hoppy Kercheval, who wrote about it this morning in the Daily Mail.

For years, one of the main defenses of the climate change theory proponents was the lack of peer-reviewed studies supporting the views of climate change skeptics. It now appears that influence was used to prevent publication of such articles by controlling the peer review process. Another blow to cap and trade.

EPA Adopts New Storm Water Rules For Construction Sites; Not Likely to Apply in West Virginia Until 2012

EPA has announced that it has developed new requirements for controlling and reducing pollutants in storm water that runs off construction sites. These changes will likely be incorporated in the WV DEP's general permit for storm water from construction sites when the permit is reissued in 2012. Here's the EPA press release:

) EPA Issues Rule to Reduce Water Pollution from Construction Sites The U.S. Environmental Protection Agency today issued a final rule to help reduce water pollution from construction sites. The agency believes this rule, which takes effect in February 2010 and will be phased in over four years, will significantly improve the quality of water nationwide.

Construction activities like clearing, excavating and grading significantly disturb soil and sediment. If that soil is not managed properly it can easily be washed off of the construction site during storms and pollute nearby water bodies.

The final rule requires construction site owners and operators that disturb one or more acres to use best management practices to ensure that soil disturbed during construction activity does not pollute nearby water bodies. In addition, owners and operators of sites that impact 10 or more acres of land at one time will be required to monitor discharges and ensure they comply with specific limits on discharges to minimize the impact on nearby water bodies. This is the first time that EPA has imposed national monitoring requirements and enforceable numeric limitations on construction site stormwater discharges.

Soil and sediment runoff is one of the leading causes of water quality problems nationwide. Soil runoff from construction has also reduced the depth of small streams, lakes and reservoirs, leading to the need for dredging.

More information: http://www.epa.gov/waterscience/guide/construction

Greenhouse Gas Reporting Rule Published

I'm more than a little late in reporting this, but EPA has proposed its greenhouse gas reporting rule. On October 30, 2009, EPA’s final mandatory greenhouse gas reporting rule was published in the Federal Register requiring reporting of greenhouse gas emissions from all sectors of the economy. The final rule applies to fossil fuel suppliers and industrial gas suppliers,
direct greenhouse gas emitters and manufacturers of heavy-duty and off- road vehicles and engines. The rule does not require control of greenhouse gases, rather it requires that sources above certain threshold levels monitor and report emissions. Attached is a good summary from Bingham McCutchen.

The final rule is effective on December 29, 2009.

You can access the final rule that was published in the Federal Register at:
http://www.regulations.gov/search/Regs/contentStreamer?objectId=0900006480a4e5fa&disposition=attachment&contentType=html

EPA’s Fact Sheet on the final rule: http://www.epa.gov/climatechange/emissions/downloads09/FactSheet.pdf

New NESHAPs Adopted for Area Sources

Anne Blankenship reports that EPA has issued final national emission standards for the control of hazardous air pollutants for nine area source categories in the chemical manufacturing sector:

• Agricultural Chemicals and Pesticides Manufacturing
• Cyclic Crude and Intermediate Production
• Industrial Inorganic Chemical Manufacturing
• Industrial Organic Chemical Manufacturing
• Inorganic Pigments Manufacturing
• Miscellaneous Organic Chemical Manufacturing
• Plastic Materials and Resins Manufacturing
• Pharmaceutical Production
• Synthetic Rubber Manufacturing

This final rule establishes emission standards in the form of management practices for each chemical manufacturing process unit as well as emission limits for certain subcategories of process vents and storage tanks. The rule also establishes management practices and other emission reduction requirements for subcategories of wastewater systems and heat exchange systems.

This final rule is effective on October 29, 2009.


The final rule can be accessed at: http://edocket.access.gpo.gov/2009/E9-25576.htm

More on the Marcellus Shale in West Virginia

The Marcellus Shale holds huge amounts of natural gas that can now be developed through horizontal drilling. Instead of just drilling vertically into the gas producing formation, which may be only a few feet thick, the drill stem can now be turned to drill horizontally through the formation, greatly increasing the area from which gas can be produced. Here's an article from today's Daily Mail on this topic. Note that West Virginia, unlike Pennsylvania, has a severance tax on natural gas, which allows producers a bigger profit in PA.

One of the greatest concerns expressed about natural gas development of tight shale formations like the Marcellus is the fracturing of rock, or "fracking," that allows the gas to flow more freely. Here's an article from the State Journal about the question of whether states or the federal government should oversee fracking.

Sustainable Development, One Inventor at a Time

It may seem counter intuitive, but development is the key to saving the world. As the literacy rate and employment opportunities increase, especially for women, the size of families drops, and resources that are no longer needed just to stay alive are diverted to discretionary spending, like environmentalism. It's hard to save the planet when you're just keeping yourself going.

Big development projects often end up lining the pockets of corrupt leaders, and the need for bottom-up development is so well known at this point that it doesn't require me to get up on a soapbox about it. Small things can make a big difference to those at the subsistence level. Things like the peanut huller developed by a retiree, Jock Brandis. It seems that women feed their families and make extra cash selling peanuts and other nuts, but hulling them is a time-consuming task. Brandis' sheller is easy to build of inexpensive materials, and he makes the plans freely available to all. It's only one of the things that the Full Belly Project is working on now. The Wall Street Journal has this article about Brandis.

Surprising End to Landmark Public Domain Case

Some of you may remember the case of Kelo v. New London, 545 US 469 (2005), in which the Supreme Court agreed that the City of New London could use eminent domain to acquire private property on behalf of a private entity, in this case Pfizer Corporation. It set off a firestorm of complaints about the use of public power to transfer property from one non-public entity to another. You can find a Wikipedia description of the case here.

The Washington Times reports that the homes owned by the Kelos and others that were condemned for use by Pfizer are now a vacant lot. Pfizer is closing its plant, and has never developed the property that it took from homeowners in the area.

Comparison of House and Senate Cap and Trade Legislation

Tom Boggs has passed to me, and I present for your consideration, the Congressional Research Service's side-by-side comparison of the House and Senate cap and trade bills. You can see it here.

I would say that cap and trade will never pass, given the real costs and the illusory benefits, but keep in mind that EPA has made the finding that carbon dioxide is a criteria pollutant. That triggers requirements for development of control technology for greenhouse gases like carbon dioxide and methane. At this point, EPA is only proposing to take action with regard to the largest sources of CO2, but that is a questionable move under the Clean Air Act. Truth be told, EPA would probably be only too glad to be required by a friendly lawsuit to begin regulation of smaller sources. Before that happens, though, there will be intense pressure on congressional Republicans to sign onto some form of legislation limiting CO2, if only to avoid more stringent restrictions that would otherwise go into effect.

Cap and Trade Debate Set for December 7 in Charleston

The Charleston Rotary Club is sponsoring a debate on cap and trade legislation and its effect on West Virginia's economy. Squaring off will be 2 well-recognized experts in the field, David Hawkins for the Natural Resources Defense Council and Pat Michaels of the Cato Institute. At the risk of misrepresenting the nuances of their positions, Hawkins is pro-legislation, and Michaels is opposed. It will be held December 7 at 6 pm at the University of Charleston's Geary Auditorium.

Cap and trade, for those of you not familiar with it, is a proposal before Congress to prevent global climate change by reducing the total amount of greenhouse gases (GHGs) emitted. Companies that have GHG emissions would be assigned stringent GHG permit limits, as well as a limited number of emission allowances. Companies would be required to meet their GHG permit limits by reducing greenhouse gas emissions, or by purchasing unused credits from other dischargers who have reduced emissions by more than they were required by their permits.

I hope the debaters will talk a little about climate change (pseudo)science as well, because the tide is turning against the semi-religious belief in the inevitability of global warming, but even if they're limited to cap and trade, each should be an able advocate for his position. You can see the flyer here.

Nutrient Standards To Be Set By EPA In Florida, Not Likely in West Virginia

Here is an article about a federal judge in Florida upholding a settlement between US EPA and environmental groups that requires EPA to step in and set criteria for nutrients in state waters. Nutrients are things like nitrogen and phosphorus that can contribute to excessive growth of algae and other plant life, which tend to suck up oxygen when they decay.

Ordinarily, EPA will take a stab at developing water quality criteria (think of it as the safe limit of pollutants that can be in water). For example, to protect aquatic life it will subject different species to different levels of a substance, like selenium, and determine the levels at which adverse results like impaired reproduction occur. Those criteria are then adopted by the states in their water quality standards, or the states justify some other criteria. Once adopted by the state, EPA approves or disapproves the water quality standards. If states don't make a decision one way or the other, or if EPA disapproves the state standard, EPA is supposed to step in and set criteria under the Clean Water Act.

In the case of nutrients, EPA decided that there were too many factors to weigh before safe levels of nutrients could be set. Some streams or lakes would respond to very low levels of nutrients before algae started to grow; others could tolerate large loadings with little adverse effect. Instead of doing one-size-fits-all studies to come up with acceptable levels of nutrients, EPA set some general regional parameters, but for the most part turned nutrient criteria-setting over to the states.

West Virginia has developed nutrient criteria for lakes, but EPA has not yet ruled on the proposed criteria, and is looking at additional data. See the EPA response to the lake criteria in this letter . The DEP has also done studies showing that the limiting factor for algae growth in West Virginia rivers is phosphorus, but no criteria are presently proposed. See the initial results of that study here.

For those interested in more information, here is a press release from EPA about a nutrient webinar:

1) Watershed Academy Webcast on Report of the State-EPA Nutrient Innovations Task Group
Nutrients have been identified as one of the top causes of water quality impairment in the United States. On Dec. 1, 2009, EPA’s Watershed Academy will present a Webcast highlighting the new State-EPA Nutrient Innovations Task Group report and related issues. This Webcast will present findings from the new report called An Urgent Call to Action: Report of the State-EPA Nutrient Innovations Task Group posted at www.epa.gov/waterscience.

Ephraim King, Director, Office of Science and Technology, in U.S. EPA’s Office of Water, will join us for this Webcast and will discuss the key findings of this report, which characterizes the scope and major sources of nutrients, and includes recommendations to address the issue. Other speakers will include Craig Cox, Midwest Vice President, Environmental Working Group, who will discuss effective ways to address nutrient pollution from agriculture. And finally, Walter Baker, Director, Utah Division of Water Quality in Utah’s Department of Environmental Quality will share successful approaches Utah is using to reduce nutrient pollution from agricultural livestock and municipal sewage treatment plants.

To register for this Webcast, visit: www.epa.gov/watershedwebcasts. EPA’s Watershed Academy Webcasts reach thousands of federal, state and local practitioners with the latest training on watershed management topics through convenient on-line training. The Webcasts build local, state and regional capacity to achieve measurable water quality improvements, targeted to meet Strategic Plan objectives. All EPA Webcasts are archived on the Watershed Academy Webcast Web page at www.epa.gov/watershedwebcasts. Webcast participants are eligible to receive a certificate for their attendance. Slide presentations are posted in advance and participants are encouraged to download them prior to the Webcast at www.epa.gov/watershedwebcasts.

EPA Finds No Imminent Threat at Sporn Plant Coal Ash Impoundment

EPA has evaluated a coal ash impoundment at the Philip Sporn Plant, located along the Ohio River in West Virginia, and has concluded that there is no imminent threat of failure. EPA believed there were similarities to the TVA coal ash impoundment that failed in December of 2008 and wanted some studies done to confirm the dam was safe. Here's the EPA press release, and a hyperlink to the EPA website page with studies and reports.

WASHINGTON – The U.S. Environmental Protection Agency (EPA) released a draft report and related materials concerning two coal ash impoundments at American Electric Power’s (AEP) Philip Sporn facility in West Virginia. Out of an abundance of caution and in the spirit of transparency, EPA notified West Virginia and Ohio public officials, first responders and American Energy and Power of concerns about the Philip Sporn facility on October 29. The agency took this step because a report done as part of the ongoing comprehensive review of dam integrity of coal ash impoundment sites found factors at the AEP Philip Sporn facility that are similar to the TVA Kingston facility that failed in December 2008. Though EPA does not believe the impoundments pose an imminent threat to the surrounding communities based on the draft report’s assessment and follow-up technical reviews, EPA issued an information request letter requiring the company to conduct several studies to assure the safety of these impoundments. The company is required to provide the results of those studies to EPA within 90 days. The company has agreed to perform the requested studies. The agency will continue to work with AEP and state and local officials and will use all necessary authority to assure the safety of the facility. The process of reviewing and responding to these reports normally takes a month or more. In this case, however, EPA expedited the process so the community had access to as much information as quickly as possible. Draft report and related materials: http://www.epa.gov/epawaste/nonhaz/industrial/special/fossil/surveys2/statement.htm

Legislative Commission On West Virginia State Water Resources to Meet Nov 17

Tom Boggs of the West Virginia Chamber of Commerce passes along this notice of the meeting of the Joint Legislative Oversight Commission on State Water Resources tomorrow.

The JOINT LEGISLATIVE OVERSIGHT COMMISSION ON STATE WATER RESOURCES will meet on November 17, 2009 4:00 p.m. to 6:00 p.m. in the Senate Judiciary Committee Room.
The agenda is as follows:
Call to Order
Roll Call
Adoption of Procedural Rules
Approval of Minutes for February, June, July, September and October 2009
Mike Stratton, Program Manager, West Virginia Department of Environmental Protection - Annual Report on the State Water Resources Management Plan.
Louis Bonasso, President, AOP Clearwater - discussion of AOP’s new water recycling plant which is now accepting Marcellus waste water.
Staff presentation of memos summarizing other states and West Virginia’s requirements for water use associated with Marcellus formation gas drilling operations.
Other Business

Too Many Deer

Charleston, and most of West Virginia, is overrun by deer. Deer are generally safer from predation in and around towns, and even allowing urban deer hunts does not adequately control them. The problem exists throughout the east. In Valley Forge National Historic Park, Pennsylvania the deer population has exploded, and they don't seem to have any better way of dealing with it than we do. A hunt is scheduled to reduce the deer herd, but is running into lawsuits.

West Virginia Supreme Court Re-Affirms Massey Decision

The third time wasn't a charm for Hugh Caperton, who has been trying to have his case against AT Massey Coal Co. decided in West Virginia. You may recall that this is the case where the United States Supreme Court ruled that WVSCA Chief Justice Brent Benjamin should have recused himself because his candidacy to the Court had been so strongly supported by Don Blankenship, CEO of Massey. This time Justice Benjamin was replaced by Senior Status Judge Holliday, but the result was the same.

Harman brought a tort action in Boone County, West Virginia, and was awarded $50 million, which judgment AT Massey appealed. The WV Supreme Court ruled, as it had before, that Caperton's mining company, Harman Mining, had agreed in the forum selection clauses of the relevant contracts that lawsuits would be brought in Virginia, where Harman had already been awarded $6 million in a contract action. The WVSCA remanded the case to Judge Hoke to dismiss with prejudice. The decision, and the lengthy procedural history, can be found here.

Frac Fluid Ingredients Publicly Available

Developing certain types of natural gas wells in West Virginia requires putting water into the gas-producing strata under high pressure, in order to fracture the strata and make gas flow more easily and in greater quantities. The water often has small amounts of additives that are there to make the frac fluid flow more easily and perform more efficiently. Companies that prepare the frac fluid additives often keep the exact mixtures a trade secret, in order to avoid providing information to their competitors. This has led to some persons alleging that unknown toxins are being introduced into drinking water as a result of gas drilling, especially in the Marcellus Shale. Some in Congress appear to want to change the Safe Drinking Water Act to subject fracking to Underground Injection Control regulations, which would be a great burden on oil and gas operators.

The fact is, the components of frac fluid additives are freely available. Attached is a great chart explaining exactly what is in the fluids, although not their precise composition. Also, any drilling rig using frac fluids will have a Material Safety Data Sheet for the frac fluids, explaining by chemical category what is in the additives. MSDSs are required for just about every chemical you'll find at any work location.

It is just as important to understand how wells are drilled in West Virginia and elsewhere. The Marcellus Shale and other conventional plays (those other than coalbed methane) are not drinking water formations. When boreholes go through drinking water strata , producers are required to insert casing that seals off the drinking water from the frac fluid that goes down and the produced water and gas that comes up. Producers are also required to test drinking water sources near the wells. These and other protections prevent contamination of water supplies. Similar controls apply in other states, as shown in this web page from Energy In Depth.

EPA Updates Enforcement and Compliance History Database

There's an abundance of information on the EPA website, although it can be a little difficult to navigate sometimes. I'm reminded of that by EPA's press release announcing that it has "released new information on EPA and state enforcement of hazardous waste and air regulations. In addition, the EPA posted data that allows the public, for the first time, to compare toxic releases with compliance data from facilities. This is part of EPA’s ongoing commitment to increase transparency and promote the public’s right to know by improving access to available data."

For those who are interested in how states are doing with enforcement of environmental laws, you could check Enforcement & Compliance History Online, which is an EPA database with data regarding enforcement and compliance activities broken down by individual facility, state, etc. It has information on all media and all EPA program types - RCRA, Clean Water Act, Clean Air Act, etc.

For those interested in what the state of West Virginia is doing, all enforcement compliance orders and settlements have to go to public notice before they can be finalized. If you have an email account you can get on the email mailing list and get notice of the orders from the DEP. When you receive the notices, and want an order to review, you can email the DEP and they'll email you the draft order.

Correcting My C8 Report Blog

Mea culpa. Here's an example of what happens when I assume, rather than read carefully. I had referred to Ken Ward's article on release of the C8 report last week, noted his statement that the report hadn't been posted on the Science Panel's web site, and inferred that he did not have the report. In fact, he had the report, even before it was up on the Science Panel's website. That may have left the erroneous impression that he made up the information he reported, which I did not intend. I assumed that he had gotten his information about the report in open court, at the time the report was filed. Here's what Ken sent me:



"I always enjoy your blog and learn from it ... But I thought I would
point out a pretty significant error.

You wrote (in this post,
http://wvenvironmental.blogspot.com/2009/10/c8-report-filed-with-court.h
tml) that:

"I have not seen the report, and evidently Ken Ward hasn't seen it
either, although his is the first story on the study."

I'm not sure what evidence you have to support your statement that I
hadn't seen the study. If you read my story, you'll see that I cite
numbers included in it and quoted directly from it. Not sure how I could
do that without having seen it.

And, in fact, I did see it before I wrote that story. I just did not
post it on our Web site, in large part because I was writing several
other pieces for our online editions and our print editions that day,
and did not have time to post it.

Perhaps you misinterpreted this paragraph:

"This latest study on C8 exposure and cholesterol in children was filed
in court, but had not been posted on the Science Panel's Web site or
otherwise publicized by the panel, at least as of late Friday
afternoon."

A careful reading, though, will show that all I wrote there was that the
C8 Science Panel hadn't posted the document on its website. Nowhere
there do I indicate that I had not seen the report. The point of the
paragraph is that the C8 Science Panel had done nothing to notify the
public in the Parkersburg area of this rather significant finding.

I'm sure you didn't mean it this way, but some readers may have
interpreted your post to mean you were alleging that I simply made up
what was in that story. Of course, that is a serious charge to make
against any journalist.

I would appreciate a correction posted on your blog." [End quotation]



He's right. That statement, though not ill-intended, was incorrect. Ken, consider me apologetic and red-faced.

C8 Report Filed With Court (Revised Nov 4, 2009)

A study conducted by West Virginia researchers as part of the settlement of a state court lawsuit brought by residents of the Parkersburg area has concluded that children with exposure to C8, or perfluorooctanoic acid, had higher amounts of bad cholesterol in their bloodstream. I have not seen the report, although Ken Ward has, and here is the first story on the study.

In September, a federal judge threw out most of the claims that were brought in federal district court against DuPont for the release of C8 in the Parkersburg area. That decision can be found here. The court dismissed most of the allegations against DuPont, including those for negligence, gross negligence, reckless, wilful and wanton conduct; private nuisance; trespass battery and
public nuisance. The only claim that was allowed to proceed was that for medical monitoring.

AEP Begins Sequestration of Carbon Dioxide at Mountaineer Plant

Carbon sequestration took another step forward as American Electric Power began a pilot program for storing carbon dioxide underground. The CO2, generated by AEP's Mountaineer plant, is a small part of that generated by the plant, but it's a start toward understanding how CO2 reacts to being stored underground. Here's a story from the Gazette about the project.
Here's some more information about carbon sequestration in its broadest form, from Wikipedia.

Judge Recht's Daubert Decision Is Worth A Look

Many environmental lawsuits stand or fall on complex scientific and technical issues. And folks, let me tell you,there's a lot of half-baked opinions and faulty data out there masquerading as science. Some of it's easy to disprove - we had a case involving underground storage tanks where a discoloration of the lining was deemed by one "expert" to be evidence of complete and utter degradation caused by de-polymerization of the fiberglass coating. Looking at the pictures, you might have believed it - at least until you walked up and removed the smudges with your thumb, revealing pristine fiberglass. Other times, though, you have talking heads going at it over esoteric questions that aren't so easily resolved. It takes a judge who is willing to sit down and take a good hard look at the experts' opinions and decide who can testify. Judge Recht recently performed such an analysis in Ohio County, and it's worth a read. (Thanks to Mark Hayes for passing this on to me.)

Judges are supposed to evaluate expert opinions to see if they are grounded in the scientific method before allowing experts to testify. They don't decide which opinions are correct, they just decide which experts have premised their opinions on scientific principles. The seminal decision in this regard is Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), where the Court considered what expert scientific evidence could be considered relevant under the Federal Rules of Evidence:

"The inquiry envisioned by Rule 702 is, we emphasize, a flexible one. Its overarching subject is the scientific validity--and thus the evidentiary relevance and reliability--of the principles that underlie a proposed submission. The focus, of course, must be solely on principles and methodology, not on the conclusions that they generate."

This publication says it well - Daubert: The Most Influential Supreme Court Ruling You've Never Heard Of.

West Virginia Wind Energy Project In Maryland Court

I am relying on the An American Lion blog to report on the legal action against a wind energy project in West Virginia. The title is The Bat Massacre of West Virginia, which might make you think it is anti-wind towers, but the gist of it seems to be that windmills kill far fewer birds and bats than other things, like windows, cats, power lines, etc. Here's part of the article - I recommend the whole thing to you, if you're interested in some thoughts on the environmental costs of wind power, weighed against its benefits.

"Cowan, 72, a longtime caving fanatic who grew to love bats as he slithered through tunnels from Maine to Maui, is asking a federal judge in Maryland to halt construction of the Beech Ridge wind farm. The lawsuit pits Chicago-based Invenergy, a company that produces "green" energy, against environmentalists who say the cost to nature is too great."

"The rare green vs. green case went to trial Wednesday in U.S. District Court in Greenbelt.
It is the first court challenge to wind power under the Endangered Species Act, lawyers on both sides say. With President Obama's goal of doubling renewable energy production by 2012, wind and solar farms are expanding rapidly. That has sparked battles to reach a balance between the benefits of clean energy and the impact on birds, bats and even the water supply."

"At the heart of the Beech Ridge case is the Indiana bat, a brownish-gray creature that weighs about as much as three pennies and, wings outstretched, measures about eight inches. A 2005 estimate concluded that there were 457,000 of them, half the number in 1967, when they were first listed as endangered."

Former Techsol President Indicted In Spill

On October 28, 2004 there was a spill of coal tar light oil near Huntington, West Virginia that resulted in contamination of the groundwater and other unfortunate effects. The feds recently indicted James Holt, the president of Techsol Chemical Co. at the time the spill occurred. As this is an example of federal criminal enforcement in Southern West Virginia, I thought I would share the indictment with those who are interested. Thanks to my partner, John Palmer, for providing it to me.

I won't comment more, as we had a role in the environmental side of this, other than to mention that John Palmer reports that Dave Bungard, a fine attorney and former partner, is representing Mr. Holt in this matter. I assume that Perry McDaniel put together the indictment.

EPA Rejects Mountaintop Mining Permit in West Virginia

EPA has decided to revoke Mingo Logan Coal Company's Spruce No. 1 mountaintop mining permit, which was issued back in 2007. This is unprecedented - EPA has rejected permits in the past, but has not, to my knowledge, revoked an existing permit at a working site. The EPA veto is not final yet; before it becomes final EPA needs to go through a public comment period, a likely hearing, and the mining company has to be given a chance to revise the permit to meet objections.


EPA has described its veto authority in a fact sheet that explains the process for denying or withdrawing authorization to place fill material in waters of the United States under Section 404(c) of the Clean Water Act. It's worth reviewing if you're interested in the process.

Whether Mingo-Logan can meet all EPA's objections is a good question. EPA is subjecting surface mining to intense scrutiny, and holding operations to very high standards, such that few large earth-disturbing projects, even if done for nonmining projects like road construction, could meet the test. Furthermore, by looking at the cumulative effects of many surface mines in that area, EPA is aggregating harmful impacts in a way that make approval of permits very difficult.

The Associated Press has reported on this, as has the Charleston Gazette. As usual, the most complete analysis of mountaintop mining news is found in Ken Ward's blog, Coal Tattoo.

New Treatment for Wood Could Be Useful in WV

Ecogeek reports a new process for treating wood so that they better stand up to outside use as decking, siding, etc. At a time when the WV wood product industry is struggling, anything that would help increase the use of WV wood rather than tropical hardwoods is a hopeful development. The process, called kebonization,

" . . . is similar to pressure treating wood (which is another way to make soft woods usable for exterior use). But, instead of soaking the wood in toxic chemicals like chromated copper asrsenate (CCA, which is now banned for most uses in the US and the EU) or alkaline copper quaternary compounds (ACQ, the most widely used replacement for CCA after the ban), it is instead soaked in furfuryl alcohol, a waste byproduct from sugar cane which is also sometimes used as a food additive. There are no special handling requirements or precautions needed to deal with waste from this wood, and it can be disposed of just like any other untreated wood.
During the kebonization process, the alcohol becomes a resin that reinforces the cells of the wood. The result is a wood with excellent outdoor exposure tolerance like teak or mahogany, but with a harder surface than many of the tropical woods that it replaces. The wood also naturally fades to a silvery-grey color much like those tropical woods, as well."

Corps of Engineers to Hold Meeting in Charleston October 13

The Coal Association reports that the US Army Corps of Engineers is holding a public hearing on October 13 at 7 pm in the Charleston Civic Center Little Theater. The subject will be continued use of Nationwide Permit 21, which makes mountaintop mining possible in many instances.

Meetings will be held elsewhere as well



OCTOBER 13
Knoxville, TN
Pikeville, KY
Charleston, WV


OCTOBER 15
Pittsburgh, PA
Big Stone Gap, VA
Cambridge, OH


Attached is the notice of the meetings and the request for comment from the Army Corps of Engineers

Improved Batteries Mean More Electricity Is Needed

Electric cars are exciting. The Wall Street Journal even had an article on a hybrid Formula One car that has an advantage by having to make fewer pit stops. However, electric cars only substitute one energy source for another. Gasoline, which is pretty energy dense, is replaced by batteries, which are not yet as efficient. But work is being done to improve batteries, by companies large and small. One of the large companies is IBM, which is beginning work on the next generation of battery that uses lithium as the anode and oxygen as the cathode. I can't explain any more than that, so go to Ecogeek to learn more.

Keep in mind this, though - the more batteries we use, the more electricity we have to generate. And for the time being, that means burning more coal.

The Cost of Global Warming Prevention

Global warming doomsayers have a tough row to hoe. Not only do they need to prove that the world a) is warming b) as a result of anthropogenic activity, they also have to prove c) that the cure they propose won't hurt more than the disease. The cost of reducing carbon emissions is huge - would warming be worse than delaying development, or investing in more expensive, "greener" sources of energy?

Bjorn Lomborg is the author of The Skeptical Environmentalist, a must-read for anyone looking for the good news behind the headlines. The fact is, we're much better off now than we were a few years ago, and he has the data to prove it. He is evidently a believer in human-induced climate change, so he satisfies the a) and b) tests above, but he makes a convincing case that the cost of preventing warming is much greater than the benefits to be achieved. His most recent article on the subject was in today's Daily Mail.

Lomborg notes that "Japan's commitment in June to cut greenhouse gas levels 8 percent from 1990 levels by 2020 was scoffed at for being far too little. Yet for Japan - which has led the world in improving energy efficiency - to have any hope of reaching its target, it needs to build nine new nuclear power plants and increase their use by one-third, construct more than 1 million wind turbines, install solar panels on 3 million homes, double the percentage of new homes that meet rigorous insulation standards, and increase sales of "green" vehicles from 4 percent to 50 percent of its auto purchases." That's quite a tall order.

The costs aren't small. "Imagine for a moment that the fantasists win the day, and that at the climate conference in Copenhagen in December every nation commits to reductions even larger than Japan's, designed to keep temperature increases under 2 degrees Celsius.
The result will be a global price tag of $46 trillion in 2100, to avoid expected climate damage costing just $1.1 trillion, according to climate economist Richard Tol, a contributor to the Intergovernmental Panel on Climate Change. His findings were commissioned by the Copenhagen Consensus Center and are to be published by Cambridge University Press."

We in the West can talk about the costs imposed on wealthy nations, but the greatest cost is imposed on smaller nations that are deprived of reasonably-priced energy sources to power their development.

Global Temperatures HIt a Plateau, But Don't Worry, More Bad News to Follow

If it seems chillier outside, it may be more than the fall weather. Temperatures have plateaued, or are dropping, across the world. For supporters of climate change legislation, this is coming at a bad time, just before the meeting in Copenhagen where plans were to be made for further greenhouse gas reductions. George Will reports on several inconvenient truths.

Why Surface Mine?

I missed this when it ran in July, but Ken Ward offered space on his blog Coal Tattoo, to Gene Kitts of International Coal Group to explain why surface mining makes sense in some situations. It and some of the comments that followed were a thoughtful and informative debate on surface mining, its costs and its benefits. For someone like me with only passing familiarity with the technical, as opposed to legal, issues, it was very helpful. Kudos to Ken for sponsoring an opposing view.

EPA To Regulate Large Sources of Carbon Dioxide

EPA recently announced that it will be proposing regulations to regulate large sources of greenhouse gases, principally carbon dioxide. The fact sheet is here, and the proposed rule is here. This is widely seen as an attempt by EPA to force Congress into amending the Clean Air Act to regulate greenhouse gases. Republicans and moderate Democrats who aren't sold on the need to regulate GHGs may be willing to agree to some limits to avoid more stringent limits being imposed by the EPA.


You have to give EPA credit for doing this in a clever way. EPA has said it will begin regulating GHGs, and wants to help regulated industry by increasing the amount of emissions that are allowed before facilities would be dragged into PSD (prevention of significant deterioration) or new source review. EPA has basically said that the rule is intended as a way to ameliorate the terrible effect of imposing limits on CO2 and other GHGs. Of course, no mention is made of whether such regulation is really needed in the first place. Right now, EPA only intends to cover large sources (at least 25,000 tons of annual emissions), like utilities, petroleum refiners and landfills, all places that environmentalists love to hate. Later, of course, the thresholds will likely be dropped to encompass more sources.

Someone is sure to challenge this, and EPA probably doesn't care, because it is likely to win either way. If you believe in the need to control GHGs, this is a great action. If you're a skeptic like me, you just sigh.

Sixty days will be allowed for public comment. Here's a news report from the Environmental Newswire

EPA To Review 79 Mountaintop MIning Permits

You have probably seen from other sources EPA's decision to review 79 mountaintop mining permits. The action taken was a letter from Peter Silva of the EPA to Jo-Ellen Darcy of the US Army Corps of Engineers stating EPA's concern that all 79 permits it was reviewing pose environmental risks. EPA wants further review by the Corps of water quality impacts, the adequacy of mitigation for stream losses, cumulative impacts, and other concerns.

The permits haven't been denied, but they are now headed into administrative limbo where they will be studied to death. One could conclude that one of the goals of this action is to drag out the permitting process so that new mines aren't started because they're economically nonviable, and existing mines can't expand.

You can see the letter from EPA here (from Ken Ward's Coal Tattoo blog) and Ken Ward's report on what is happening, which contains a good summary of the next steps in the permitting process. The Associated Press report is here . WV Public Radio has done several stories, including this one

Dunkard Creek Fish Kill

I don't really have much to add about the Dunkard Creek fish kill, other than to refer you to the WV Department of Environmental Protection website and this article by Ken Ward of the Charleston Gazette. I do know that the DEP has been putting a lot of resources into investigating the cause, and I doubt the Consol mine discharge was the only contributor, given the fact that the algae bloom that appears to have caused the problem probably began farther upstream.

Compliance Orders in West Virginia

It's not always possible to meet water pollution discharge permit limits when they are put in a NPDES permit. Sometimes a limit in a reissued NPDES permit for a pollutant like iron will be reduced from the limit in the previous permit, and the permit holder will need time to figure out how to meet that new limit. When that happens, the only thing that can be done short of shutting down the facility is to issue a compliance order. Compliance orders are being questioned as a result of the fish kill on Dunkard Creek, and have been the subject of a recent WV Public Radio story.

Compliance orders allow a certain amount of time to meet permit limits. They are usually issued in connection with a NPDES permit reissuance, and they establish interim deadlines for evaluating treatment options and for developing a strategy for meeting the limit. The regulatory authority for compliance orders is found in the NPDES rule, 47 CSR 10, Section 8 (page 27 of the web-linked document). Without compliance orders, permittees might be in immediate violation of their revised permit, and might have to shut down their businesses in order to avoid operating in violation of the law.

Compliance orders are not the same as consent orders, which are agreements with the WV DEP to pay penalties for violations of the West Virginia Water Pollution Control Act. The rule governing assessment of consent orders is found at 47 CSR 1. Consent orders are punitive in nature, usually involving a monetary penalty. They are administrative actions that are offered in lieu of civil litigation. If no agreement is reached on a penalty in a consent order, the DEP will usually file an action in the appropriate circuit court, where the penalties are usually higher.

Incredible Battery Breakthrough, Or Too Good To Be True?

I'm a cynic, which keeps me from being unpleasantly surprised when great advances turn out to be con jobs. But I'm passing on this report from Ecogeek about new

"power storage devices" (not technically batteries, more like peculiar capacitors) that can hold 10x more power than advanced lithium ion cells. These "electrical energy storage units" will be lighter than the most advanced batteries in the world, can charge in minutes and will last forever.

Ecogeek thinks it sounds too good to be true, but the company evidently has garnered backing from some pretty astute investors, so they're taking a wait and see attitude. If you want to see it to judge for yourself, try going here.

EPA Establishes Greenhouse Gas Reporting System

Thanks to Anne Blankenship, who passed this along to me. And no, this isn't the first greenhouse gas reporting system in the country. It's the first EPA effort. West Virginia and other states have had GHG reporting requirements for a couple years.

EPA Finalizes the Nation’s First Greenhouse Gas Reporting System

Monitoring to begin in 2010

WASHINGTON – On January 1, 2010, the U.S. Environmental Protection Agency will, for the first time, require large emitters of heat-trapping emissions to begin collecting greenhouse gas (GHG) data under a new reporting system. This new program will cover approximately 85 percent of the nation’s GHG emissions and apply to roughly 10,000 facilities.

“This is a major step forward in our effort to address the greenhouse gases polluting our skies,” said EPA Administrator Lisa P. Jackson. “For the first time, we begin collecting data from the largest facilities in this country, ones that account for approximately 85 percent of the total U.S. emissions. The American public, and industry itself, will finally gain critically important knowledge and with this information we can determine how best to reduce those emissions.”

EPA’s new reporting system will provide a better understanding of where GHGs are coming from and will guide development of the best possible policies and programs to reduce emissions. The data will also allow businesses to track their own emissions, compare them to similar facilities, and provide assistance in identifying cost effective ways to reduce emissions in the future. This comprehensive, nationwide emissions data will help in the fight against climate change.

Greenhouse gases, like carbon dioxide, are produced by burning fossil fuels and through industrial and biological processes. Fossil fuel and industrial GHG suppliers, motor vehicle and engine manufacturers, and facilities that emit 25,000 metric tons or more of CO2 equivalent per year will be required to report GHG emissions data to EPA annually. This threshold is equivalent to about the annual GHG emissions from 4,600 passenger vehicles.

The first annual reports for the largest emitting facilities, covering calendar year 2010, will be submitted to EPA in 2011. Vehicle and engine manufacturers outside of the light-duty sector will begin phasing in GHG reporting with model year 2011. Some source categories included in the proposed rule are still under review.

More information on the new reporting system and reporting requirements: http://www.epa.gov/climatechange/emissions/ghgrulemaking.html

R269

West Virginia Department of Environmental Protection Wants You To Pick 5

Picking 5 in this case isn't about playing the lottery. It's selecting 5 ways to conserve resources. Here's the press release from the WV DEP:

West Virginia is joining the U.S. Environmental Protection Agency during national Pollution Prevention Week to let every Mountain State resident know they can make an important contribution toward improving the environment.

The West Virginia Department of Environmental Protection’s Pollution Prevention Program is challenging all state residents to take a “Pollution Solution Challenge” by committing to “Pick 5” things that anyone can do to positively affect the environment and reduce pollution. Pollution Prevention Week is Sept. 21-27.

This challenge is a way to raise awareness about pollution prevention, from business owners to corporate leaders, from students to parents -- it doesn't matter who you are -- we want everyone to make pollution prevention a fabric of their everyday life.

Pollution prevention, also known as P2, means not creating pollution in the first place and focuses on reducing waste at its source, reusing what can't be recycled and recycling what otherwise would be thrown away. P2 also helps to save energy and to prevent the emission of greenhouse gases and water pollutants.

The EPA estimates that each individual generates about 1.5 tons of solid waste per year, which equals about 4.5 pounds per person, per day.

The EPA has created a Web site where people can register for the “Pollution Solution Challenge.” To register, go to www.epa.gov/pick5, then pick five or more ways you plan to reduce pollution. Among items on the list are using less water and electricity; using chemicals safely; recycling electronics; and taking public transportation, walking or carpooling to work or school.
For more information about Pollution Prevention Week, contact Greg Adolfson at: 304-926-0499, ext. 1332, or gregory.e.adolfson@wv.gov.

Clean Water Act Jurisdiction Still Unclear Three Years After Rapanos

I have been waiting for sometime to blog on the questions that have arisen about the scope of the Clean Water Act in the wake of the Rapanos decision. Much has been made of the Supreme Court's split opinion, which left everyone wondering exactly what constitutes a water of the United States that would be subject to federal jurisdiction under the Clean Water Act. The question is important, because many activities take place in locations far from streams that could be considered navigable, the traditional test of the CWA's reach under the Constitution. When that occurs, is the activity subject to federal programs, such as NPDES permitting and 404 wetlands permits, or is it subject only to state regulation?

Now Jessica Ferrell of the Marten Law Group beat me to the punch and did a fine job of summarizing the current state of the law. Rather than try to duplicate her work, I've provided a link to her article.

Congress has tried on several occasions in the last couple years to clarify the scope of the CWA and has failed. For all the grief the Supreme Court has taken on the fuzziness of its Rapanos test, it is fair to say that they are probably waiting on Congress to clear up any jurisdictional questons. That seems to me to be the best place to resolve a basically political question. Here's hoping they limit the federal reach to some reasonable extent that is consistent with a more reasonable application of the Commerce Clause.

Comparing Apples and Oranges: Energy Subsidies

My friend Bill Porth doesn't much like the hoary admonition not to compare apples and oranges - he thinks the comparability of dissimilar things is one aspect of logical thought. Why can't you compare the attributes of an apple with those of an orange? Well, anyway, the idea is that you should compare things using a similar reference point. If that's the goal, the Environmental Law Institute seems to have failed it in its analysis of energy subsidies given to various energy sources.

ELI reports that renewable sources of energy were provided with less than half the subsidies given to fossil fuel sources. Yet the amount of energy produced by fossil fuels in America would be much greater than the relatively small amount of energy produced by renewables. On a cost-per-unit-of-energy basis, subsidies of fossil fuels would cost far less than subsidies of renewables. That is something to keep in mind when groups cite ELI's study as evidence that fossil fuels have a competitive advantage derived from subsidies. The fact is, fossil fuels pay their own way, and renewables still need to be subsidized.

You can see reports and summaries on the web, such as this article from Biodiesel magazine, and outraged bloggers, such as this one from a Science and Technology News Forum.

Alternative energy subsidies can be money well-spent. Tax breaks for solar, wind, geothermal et al are reasonable means of encouraging a diversification of energy sources, allowing greater competition among energy producers and flexibility in our energy use. But if ELI is suggesting that fossil fuels currently have an advantage because of tax breaks, I think they are mistaken.

Spending Land to Buy Energy

Lamar Alexander wrote a piece in the Wall Street Journal about the downside of some renewable energy - the amount of space they occupy. Land use is something to be considered, although I don't think that alternative energy represents "an unprecedented assault on the American landscape". Here is a restatement of that article.

Secretary of the Interior Ken Salazar recently announced plans to cover 1,000 square miles of land in Nevada, Arizona, California, Colorado, New Mexico and Utah with solar collectors to generate electricity. He’s also talking about generating 20% of our electricity from wind. This would require building about 186,000 50-story wind turbines that would cover an area the size of West Virginia – not to mention 19,000 new miles of high-voltage transmission lines.

The House of Representatives has passed climate legislation that requires electric utilities to get 20% of their power mostly from wind and solar by 2020. These renewable energy sources are receiving huge subsidies – all to supposedly create jobs and hurry us down the road to an America running on wind and sunshine as outlined in President Obama’s Inaugural Address.
Yet all this assumes renewable energy is a free lunch – a benign, “sustainable” way of running the country with minimal impact on the environment. That assumption experienced a rude awakening on August 26, when The Nature Conservancy published a paper titled “Energy Sprawl or Energy Efficiency: Climate Policy Impacts on Natural Habitat for the United States of America”. This report posed a simple question: How much land is required for the different energy sources that power the country? The answers deserved far greater public attention.

Ø Nuclear energy requires one square mile to produce one million megawatt-hours per year, enough electricity for about 90,000 homes.

Ø Geothermal energy requires three square miles to produce the same megawatt-hours per year.

Ø Biofuels – ethanol and biodiesel - requires up to 500 square miles producing the same amount of energy.

Ø Coal requires four square miles.

Ø Solar thermal takes six square miles.

Ø Natural gas takes eight square miles.

Ø Oil requires 18 square miles.

Ø Wind farms require over 30 square miles.

There’s one more consideration regarding Secretary Salazar’s plan. Solar collectors must be washed down once a month or they collect too much dirt to be effective. They also need to be cooled by water. Where amid the desert and scrub land will we find all that water? No wonder the Wildlife Conservancy and other environmentalists are already opposing solar projects on Western land.

Renewable energy is not a free lunch. It is an unprecedented assault on the American landscape. Before we find ourselves engulfed in energy sprawl, it’s imperative that we take a closer look at the current Administrations plans and promises.

New York Times Blasts West Virginia, US Clean Water Act Enforcement

The New York Times ran a story today on lax enforcement of the Clean Water Act, with the exemplar being the drinking water problems being suffered by people in Prenter, West Virginia. Many of the people in Prenter are suing coal companies, and I have no doubt a jury will be able to fairly decide the validity of their claims that injection of slurry is affecting their water source. What struck me was the interactive map that went with the article, and for which the Times made this claim:

The Times obtained hundreds of thousands of water pollution records through Freedom of Information Act requests to every state and the E.P.A., and compiled a national database of water pollution violations that is more comprehensive than those maintained by states or the E.P.A. (For an interactive version, which can show violations in any community, visit www.nytimes.com/toxicwaters.)

I have quickly looked at the interactive map for industrial facilities that I am aware of, and found many errors. One egregious error was that, for some reason, the date of last inspection always seemed to be 1979 or 1980. That is laughable, since most of the major facilities I'm familiar with have regular inspections on an almost yearly basis, and some more frequently. Similarly, the database shows no fines for some locations that I know were penalized significant amounts. The Times may have been doing the best it could with what was given to it under Freedom of Information Act requests, but what you see shouldn't be taken as the gospel in West Virginia and I doubt that it is the best compendium of enforcement actions or violations available.

I should disclose that one of the persons interviewed for the article, Matt Crum, was an associate at my firm, Robinson & McElwee, for several years at the start of his career.

Ohio River Dams To Be Retrofitted For Hydropower

Environmentalists don't think much of hydropower, when it involves damming pristine streams. But what about dams that are already in place and that are unlikely to go away anytime soon? Ecogeek reports on a plan to retrofit 5 dams on the Ohio River, to produce 350 MW of power. They also have a link to a list of dams in the US that could be retrofitted to supply power; currently, only about 3% of all dams harness their hydroelectric potential.


If you want to see the Army Corps of Engineers study on dam decommissioning, go here.

EPA Lists Mountaintop Removal Sites For Review

Ken Ward of Coal Tattoo reports that EPA has published its list of mountaintop removal mines subject to further review. The list can be found here. "Further review" could be a euphemism for "kill by the death of a thousand paper cuts."

EPA has already asked to review the permit of one of the largest proposed MTR mines in the state, Arch Coal's Spruce No. 1 in Logan County. Ry Rivard reports in the Charleston Daily Mail that

"An Arch Coal subsidiary was issued a permit by the U.S. Army Corps of Engineers to mine the 2,300-acre site in early 2007, though a court fight has held up mining there. But in a Sept. 3 letter the EPA questioned the entire permit, saying mining at the site could damage downstream water quality and suggesting the corps had failed to comply with clean water laws."

You can see Ry's full story here.

WV DEP Seeks Water Quality Data

Don't say you were never asked - the West Virginia Department of Environmental Protection is asking for water quality data. This is the public's chance to provide evidence that streams should, or should not be listed on the 303(d) list of impaired streams. The notice follows:


The West Virginia Department of Environmental Protection is compiling water quality data on the state’s streams and lakes for its next Integrated Water Quality Monitoring and Assessment Report.
This report is developed by DEP and submitted to the U.S.
Environmental Protection Agency every two years as required by the federal Clean Water Act. The report includes the Section 303(d) list of impaired waters.
The next report is due in April 2010 and will be based upon water quality data collected through June 30, 2009.
In addition to data collected directly by the DEP, the agency will compile and assess water quality data collected by other persons, agencies, watershed associations, or permitted facilities. Data should be sent to Steve Stutler at Stephen.J.Stutler@wv.gov, (304) 926-0499, Ext. 1086, or Steve Young at Stephen.A.Young@wv.gov, (304) 926-0499, Ext. 1042. The deadline to submit data is Sep. 30, 2009.
A data form is available to download at www.wvdep.org/wv303d.
Documentation describing the collection and analytical methodologies associated with the data should be provided as it will help the agency assess data quality. If data was subject to a quality assurance/quality control plan, submit it with the data. For an example of a QA/QC plan, go to http://www.epa.gov/quality/qs-docs/g5-final.pdf.
Although electronic data submission is highly preferred and encouraged, non-electronic submissions may be sent to the DEP at the Division of Water and Waste Management, Attn: Steve Young, 601 57th St. S.E., Charleston, WV 25304.

Mountaintop Mining Decision Appealed to US Supreme Court

The West Virginia Highlands Conservancy, OVEC and Coal River Mountain Watch have filed a petition for appeal with the US Supreme Court, asking them to overturn the Fourth Circuit's decision in Ohio Valley Environmental Coalition v. Aracoma Coal Co. The Fourth Circuit ruled that the US Army Corps of Engineers properly applied the Clean Water Act in issuing mountaintop removal permits. You can find the groups' press release here.

Chances of success are not great, considering how few appeals the US Supreme Court hears.

Wisconsin Biomass Power Generator an Example for West Virginia?

Here's a report of a 50 megawatt power plant that will be built next to a paper mill in Wisconsin. It will burn biomass, mostly tree products, from within a 75 mile radius. One wonders whether something similar could be done with the detritus from West Virginia's timber products industry.

Where do Byrd and Rockefeller Stand on Cap and Trade?

Senators Byrd and Rockefeller haven't made their positions clear on cap and trade legislation, which would charge power companies for credits that allow them to emit carbon dioxide. They are truly between a rock and a hard place, as their hearts are probably with the Democratic mainstream, which supports cap and trade legislation, but their constituents will be angered if that legislation a) increases utility bill and b) costs jobs in the energy sector. So far they've stayed mum on what they plan to do, according to this Daily Mail article.

Under cap and trade, the government would sell power plants limited allowances for carbon dioxide emissions, and then reduce them, driving down CO2 emissions and increasing the cost of credits. The idea is that it would make carbon-based energy more in line with the costs of alternative energy. But as this Wall Street Journal article shows, getting alternative energy sited is no sure thing.

Cap and trade is doomed to fail. I can't see that the Senate is going to put meaningful limits on greenhouse gas emissions when developing countries are certain to continue pumping out CO2 unabated. If you believe in climate change, it would be more cost effective to learn to live with it than try to stop CO2 build up.

Goals Coal and the Rule of Law

Done properly, the role of a judge must be boring at times. Sure, sometimes you'll hear interesting disputes, but most of the time a jurist should be applying the law to the facts of a case and reaching a result that is unaffected by personal prejudice. There's little opportunity for a judge who is true to his calling to make public policy decisions. That's probably why judges are occasionally tempted to stray, and do what they think is right rather than implement what the Legislature thought was right when they wrote the law. When judges do that, though, they sometimes prove that maxim that (and I paraphrase) "he that would do justice rather than follow the law ends up doing neither."

That's why it's so satisfying to see the WV Supreme Court applying the law as written - whether they agree with the result or not. Coal River Mountain Watch challenged a permit for the construction of a second coal silo by Goals Coal on property it permitted in Raleigh County near Sundial. The permit map had been hand drawn in 1982 and markers were placed in the ground at that time, marking the boundary of the property . There was a discrepancy between the map and the boundary markers, and Coal River Mountain Watch challenged the second coal silo on the grounds that it wasn't located on the permitted property, as represented on the map, even though it was within the area marked at the site itself. Sounds pretty nitpicking, but the real impetus for the appeal was local opposition to the construction of the coal silo near Marsh Fork Elementary School.

The Supreme Court noted that it was not a super legislature, empowered to decide whether this was a good location to build a silo. Instead, it limited itself to a review of the state and federal surface mine acts, and concluded that the permit area was identifiable by appropriate markers on the mine site. the silo could be built because it was within the area marked at the site.

Is it a good idea to put a coal silo that close to an elementary school? It may or may not be, but the Supreme Court wasn't called on to make that decision. It merely interpreted the law honestly and objectively. In the opinion of some, that wasn't always the case with the Supreme Court in the past.