James Fallows Promotes Clean Coal in the Atlantic

The Atlantic, hardly a bastion of conservative thought, has published a piece by James Fallows in which he argues that power from coal will be needed for years to come, particularly in the developing world, and alternative energy sources are not going to take its place.  Therefore, it's better to figure out a way to use it cleanly than to try to quit using it. Read the article here.

You don't have to believe that global warming is an imminent threat, or believe the prognostications of Michael Mann, the discredited originator of the hockey stick graph, to appreciate  the courage that Mr. Fallows demonstrates in facing the fact that the need for energy is going to require us to burn fossil fuels for quite a while longer.

How to Change the Global Energy Conversation

Mike Shellenberger and Ted Norhaus of the Breakthrough Institute make a convincing case in the Wall Street Journal that the way to reduce carbon emissions is to make alternative energy cheaper, not to make fossil fuels more expensive. They explain their thinking here and  here.

West Virginai Ban on Consumer Electronics in Landfills Begins January 1

The Legislature adopted Senate Bill 398 last year, banning  many consumer electronics devices from state landfills beginning January 1, 2011. Old TVs, computer monitors and other large items can no longer just be set out with the trash. This summary comes from the WV Solid Waste Management Board:

During the 2010 legislative session, Senate Bill 398 passed into law. The bill bans certain electronics from West Virginia landfills. The bill requires the WV Solid Waste Management Board to design a program for the proper handling of covered electronic devices (CEDs). The Secretary of the Department of Environmental Protection (DEP) is required to promulgate rules for the implementation of the enforcement of the program.


CEDs include televisions, computers or video display devices with a screen that is greater than four inches measured diagonally. "Covered electronic device" does not include a video display device that is part of a motor vehicle, or that is contained within a household appliance or commercial, industrial or medical equipment.

Here is a blog from the National Center for Electronics Recycling on the ban.

Toxic Emissions Decrease Significantly in West Virginia

Good news.  EPA has published this year's report of toxics emitted by industry and reports that once again, toxic emissions are down in West Virginia.  Here is the story by Ken Ward in the Charleston Gazette.

Follansbee School Air Safe

Sometimes good news like this from EPA doesn't get reported

PHILADELPHIA (Dec. 23, 2010) – The U.S. Environmental Protection Agency made available today its final report on monitoring for air toxics near the Follansbee Middle School and Jefferson Primary School in Follansbee, W. Va. The report, posted on the agency’s website at http://www.epa.gov/schoolair/schools.html, concludes that outdoor levels of manganese near the schools were below levels that would raise health concerns. However, the agency will conduct more monitoring next spring for pollutants commonly associated with coke oven plants, since one is operating in the vicinity of the schools.


EPA’s monitoring of outdoor air found several pollutants common in coke oven emissions, including benzene, arsenic and benzo(a)pyrene. The additional monitoring will help EPA gain a better understanding of the levels of pollutants in the air and whether there are potential health concerns associated with the mixture of pollutants. The need for follow-up air monitoring is also based on the knowledge that one of the main sources of air toxics in the area was not operating at normal production levels during the original monitoring. The facility is now operating at normal production.

As part of EPA’s Schools Air Toxics Monitoring initiative, outdoor air was monitored at 63 schools in 22 states. The study was designed to help EPA and state environmental agencies understand whether long-term exposure to air toxics poses health concerns for children and staff at the schools.

EPA selected the Follansbee schools because of their proximity to air toxics sources, and based on computer models that indicated these toxics may be present at elevated levels in the outdoor air. To see a listing of all of the schools monitored in this initiative: http://www.epa.gov/schoolair/schools.html.

DEP, DNR to Recycle Christmas Trees

The DEP and DNR will once again be recycling Christmas trees by sinking them in lakes to provide fish habitat. 

In an effort to keep discarded Christmas trees out of landfills and off the sides of roads, the West Virginia Department of Environmental Protection and the state Division of Natural Resources are sponsoring their sixth annual tree recycling event in 2011.

On Jan. 8, from 10 a.m. to 5 p.m., the DEP’s Rehabilitation Environmental Action Plan (REAP) will accept used live Christmas trees at the Capitol Market in downtown Charleston. The DNR will use the collected trees to create fish habitats at the bottom of lakes and streams throughout West Virginia.

REAP’s Sandy Rogers said the recycling event gets bigger every year in terms of the number of trees collected after the holidays. Last year, close to 450 trees were dropped off at the Capitol Market.

Those who donate trees will receive a free gift and can register for more prizes, including West Virginia skiing trips. For more information, contact Rogers at 304-926- 0499, ext. 1004 or email Sandra.D.Rogers@wv.gov.

Light Emitting Diodes Are Hazardous Wastes When Disposed?

Researchers at the University of California subjected ground up LEDs to a TCLP test (a standard test for determining whether a waste is hazardous) and found that the red LEDs failed.  When subjected to a more rigorous testing, the other colors of LEDs failed  as well.  Incandescent lights are looking better and better.

WV Environmental Quality Board To Decide Hearing Key Water Quality Question

An appeal before the West Virginia Environmental Quality Board will address a key issue in water quality standards.  Environmentalists, including the Sierra Club, have appealed a permit issued to Patriot Coal, alleging that the State did not apply recent EPA guidance on discharges from mining sites.  Since April of this year, EPA has been requiring coal mining operations in the Central Appalachians to abide by a guidance that greatly limits the conductivity of water running off mining sites.  The basis for EPA's guidance is West Virginia's narrative water quality standards, which are the non-numeric limits in the standards, at Section 3.  These are the general, and vague, requirements of the standards, and include the requirement that (among other things) no one may impair the biological integrity of state waters.

The WV DEP responded with its own interpretation of its narrative standards. Presumably it should be given greater weight than EPA's guidance, since West Virginia is responsible for its own NPDES permit program under the Clean Water Act.

The following report came from the Charleston Gazette:

CHARLESTON, W.Va. -- Environmentalists and state regulators faced off Tuesday in the start of a major permit appeal hearing that puts the spotlight squarely on West Virginia's opposition to a federal crackdown aimed at reducing strip-mine pollution across the Appalachian coalfields.

Department of Environmental Protection officials sought an 11th-hour ruling Monday night to block any mention in the hearing of tougher new water quality guidelines issued by the U.S. Environmental Protection Agency earlier this year.

State Environmental Quality Board members turned down that request, and citizen group lawyers told the board the case is all about DEP's rejection of the EPA guidelines and a growing body of science they are based upon.

"DEP refuses to follow the law and the science when it issues permits for surface coal mines," said Joe Lovett, director of the Appalachian Center for the Economy and the Environment. "The permit at issue here is a prime example of DEP's recalcitrance."

Lovett's organization is working with the Sierra Club to appeal a DEP-issued permit for Scott Depot-based International Coal Group to expand a mining operation along Scotts Run near Cassville in Monongalia County.

ICG subsidiary Patriot Mining's New Hill West Mine would cover about 225 acres, and discharge pollution under a modification to an existing Clean Water Act permit that covers five other adjacent mine sites. In its appeal, the Sierra Club argued that DEP wrongly did not perform detailed studies of the mine's potential water quality impacts, and ignored the need for specific water discharge limits for electrical conductivity, total dissolved solids and sulfates.

Bob McLusky, a Jackson Kelley lawyer representing the company, argued that Patriot Mining's permit -- currently suspended by the board pending the appeal -- is "small potatoes" and not the Sierra Club's real target.

"They're not in this because of 225 acres," McLusky said. "They see this as a referendum on mining. Patriot sees itself caught up in a much larger issue."

Board members set aside four full days this week for the hearing. Expert witnesses for the Sierra Club will include biologists Margaret Palmer of the University of Maryland and Emily Bernhardt of Duke University, two of the authors of a study earlier this year in the prestigious journal Science, which concluded mountaintop removal's damaging impacts are "pervasive and irreversible."

Palmer testified Tuesday afternoon that peer-reviewed scientific literature clearly shows adverse water quality impacts downstream from coal-mining operations.

"There have been a lot of studies that have shown a pretty clear relationship between mining and stream impairment," Palmer told board members. "There are a lot of papers."

Since soon after taking office, the Obama administration has been citing that scientific consensus in putting strip-mining permits under much greater scrutiny. EPA has issued new guidance and a landmark science paper detailing how increased conductivity from mining pollution is harming aquatic life.

Environmental scientist Evan Hansen of the Morgantown firm Downstream Strategies, another expert for the Sierra Club, testified Tuesday morning that Scotts Run already shows signs of aquatic life impairment from sulfates and increased conductivity.

The situation could be made even worse, Hansen said, by Patriot Mining's plan to dispose of coal ash from the Morgantown Energy Associates power plant as part of the site's reclamation plan. Hansen conceded that coal ash's alkalinity can be of some help in reducing acid mine drainage from past and current mining in the area, but testified that DEP has not considered the potential long-term implications, such as more concentrated selenium runoff from the mine.

In part, the permit appeal focuses attention on a legal dispute over West Virginia's "narrative" water quality standard.

Unlike "numeric" water quality rules, the narrative standard itself does not specifically include numeric limits on allowable pollution. Instead, the narrative standard simply outlaws any condition that "adversely alters the integrity" of state waters or causes a "significant adverse impact to the chemical, physical, hydrologic, or biological components of aquatic ecosystems."

As part of its mountaintop removal crackdown, EPA issued guidance intended to better define the narrative standard by putting numbers on what constitutes significant adverse impacts on

DEP lawyer Jennifer Hughes argued that her agency has issued its own guidance for the state's narrative standard and that therefore the EPA's guidelines are not legally relevant here. Hughes repeatedly objected to questions and testimony about the EPA guidelines.

"Science informs policy decisions, it doesn't dictate them," Hughes said. "It is the DEP's responsibility to make those policy decisions."

Hughes said that the EPA is seeking to force "unobtainable limits" on West Virginia's mining industry, and McLusky repeated the coal lobby's belief that EPA is putting the health of aquatic insects over the economy of the region.

But Palmer testified that DEP's own water quality guidance does not properly take into account the important functions of aquatic insects that provide food and energy that is vital to the overall health of streams, fish and birds. Changing the number and type of insects can have broader impacts, she said.

"When you shift the makeup of a community, that can cause many changes in ecological processes," Palmer told the board.

EPA Asks For More Time To Reconsider Boiler MACT

It appears that EPA has taken seriously the concerns of industry that the boiler MACT (Maximum Available Control Technology required for hazardous air pollutants), which would impose stringent air emission controls on industrial boilers, would have a significant effect on boiler operators.  EPA is asking for more time to reconsider its proposed rule in light of the comments it has received.  Here's EPA's press release.

WASHINGTON – In a motion filed today in the federal District Court for the District of Columbia, the U.S. Environmental Protection Agency (EPA) is seeking an extension in the current court-ordered schedule for issuing rules that would reduce harmful air emissions from large and small boilers and solid waste incinerators. The additional time is needed for the agency to re-propose the rules based on a full assessment of information received since the rules were proposed. The rules would cut emissions of harmful pollutants, including mercury and soot, which cause a range of health effects – from developmental disabilities in children to cancer, heart disease and premature death.

"After receiving additional data through the extensive public comment period, EPA is requesting more time to develop these important rules," said Gina McCarthy, assistant administrator for EPA’s Office of Air and Radiation. "We want to ensure these rules are practical to implement and protect all Americans from dangerous pollutants such as mercury and soot, which affect kids' development, aggravate asthma and cause heart attacks."

In order to meet a court order requiring the EPA to issue final rules in January 2011, the agency proposed standards in April 2010. While EPA requested and received some information from industry before the proposal, the comments EPA received following the proposal shed new light on a number of key areas, including the scope and coverage of the rules and the way to categorize the various boiler-types. Industry groups and others offered this information during the public comment period after EPA proposed the rule. After reviewing the data and the more than 4,800 public comments, the agency believes it is appropriate to issue a revised proposal that reflects the new data and allows for additional public comment. This approach is essential to meeting the agency’s legal obligations under the Clean Air Act and, as a result, provides the surest path to protecting human health and the environment.

EPA has estimated that there are more than 200,000 boilers operating in industrial facilities, commercial buildings, hotels and universities located in highly populated areas and communities across the country. EPA has estimated that for every $5 spent on reducing these pollutants, the public will see $12 in health and other benefits.



EPA is under a current court order to issue final rules on January 16, 2011 and is seeking in its motion to the court to extend the schedule to finalize the rules by April 2012.



More information: http://www.epa.gov/airquality/combustion

US Supreme Court to Hear Climate Change Nuisance Case

Bishop Hill reports that the US  Supreme Court has agreed to decide whether  emitters of greenhouse gases can be sued under a common law nuisance theory.  The Bishop refers to the SCOTUS law blog, which he evidently believes is the Supreme Court's official blog, but it appears to be the Akin Gump law firm's Supreme Court blog (which is very good and worth perusing).  I can't find that entry on the Akin Gump site, so I am reproducing below what the Bishop quoted:

Via the blog of the Supreme Court of the United States comes the news that the court will hear the appeal by five businesses that have been sued under the law of common nuisance for emitting carbon.


five entities that were claimed to be the largest sources of greenhouse gases — four electric power companies and the Tennessee Valley Authority — were sued by eight states, New York City, and three land conservation groups. Their lawsuits were filed under the federal common law of nuisance, a judge-made theory. The Second Circuit agreed that the lawsuit could proceed on that theory. The case, however, has not yet gone to trial.
When the electric generating companies appealed to the Supreme Court, the Justice Department, speaking for TVA, urged the Supreme Court to send the case back to the Circuit Court for another look instead of ruling on it now. The Department argued that the EPA was now moving on several fronts to regulate greenhouses gases under the Clean Air Act, so this activity might displace any claims made under common-law theories. The Court, however, chose on Monday to take on the case itself at this point, presumably with the aim of deciding whether such a nuisance lawsuit may now go forward as a way of attacking global warming.

This is, of course, the lawsuit brought by several northeastern states against TVA and other power generators alleging that they should be held accountable for the emission of greenhouse gases that allegedly contribute to climate change.    This is one report, of the Supreme Court's action yesterday, and I'm sure there are others. It is worth noting that the Second Circuit's decision conflicts with the Fourth Circuit's decison in a case brought by North Carolina that such emissions are not public nusiances. Here is the New York Times take on  that case.

EPA Announces New Rules to Govern Carbon Capture and Sequestration

EPA has come out with several new rules pertaining to sequestration of carbon dioxide and protection of underground sources of drinking water.  EPA is encouraging carbon sequestration as a way to deal with its perception that it is contributing to global climate change.  Of particular interest is the development of a new Safe Drinking Water Act Class VI underground injection control (UIC) well category for wells used to sequester carbon dioxide. Here is EPA's summary of what it did, and hyperlinks for follow up:

EPA Finalizes Rules to Foster Safe Carbon Storage Technology:

As part of efforts to reduce barriers to widespread deployment of carbon capture and sequestration, an important set of technologies to combat climate change Today, the U.S. Environmental Protection Agency (EPA) finalized two rules related to the capture and sequestration of carbon dioxide. Carbon capture and sequestration (CCS) technologies have the potential to enable large emitters of carbon dioxide, such as coal fired power plants, to significantly reduce greenhouse gas emissions. This technology allows carbon dioxide to be captured at stationary sources like power plants and large industrial operations and injected underground for long-term storage in a process called geologic sequestration.

The new rules aim to protect drinking water and to track the amount of carbon dioxide that is sequestered from facilities that carry out geologic sequestration. Together, these actions are consistent with the recommendations made by President Obama’s interagency task force on this topic and help create a consistent national framework to ensure the safe and effective deployment of technologies that will help position the United States as a leader in the global clean energy race.

In August 2010, President Obama’s Interagency Task Force on Carbon Capture and Storage, co-chaired by the EPA, delivered a series of recommendations to the president on overcoming the barriers to widespread, cost-effective deployment of CCS within 10 years. The task force concluded that the rules being announced today were an important part of the strategy to promote development of this technology. CCS can play an important role in domestic greenhouse gas emissions reductions while preserving the option of using coal and other abundant domestic fossil energy resources.

Drinking Water Protection:

EPA finalized a rule that sets requirements for geologic sequestration of carbon dioxide, including the development of a new class of injection well called Class VI, established under EPA’s Underground Injection Control (UIC) Program.  The rule requirements are designed to ensure that wells used for geologic sequestration of carbon dioxide are appropriately sited, constructed, tested, monitored, and closed. The UIC Program was established under the authority of the Safe Drinking Water Act.

Greenhouse Gas Reporting:

EPA also finalized a rule on the greenhouse gas reporting requirements for facilities that carry out geologic sequestration. Information gathered under the Greenhouse Gas Reporting Program will enable EPA to track the amount of carbon dioxide sequestered by these facilities. The program was established in 2009 under authority of the Clean Air Act and requires reporting of greenhouse gases from various source categories in the United States.

More information on the geologic sequestration rule: http://water.epa.gov/type/groundwater/uic/wells_sequestration.cfm

More information on the greenhouse gas reporting final rule: http://www.epa.gov/climatechange/emissions/ghgrulemaking.htm

West Virginia DEP Announces Mandatory Electronic Permitting and Reporting for Water Permits

The West Virginia DEP Division of Water and waste Management has sent out the following notice regarding mandatory epermitting that will go into effect next year.

In an effort to more efficiently handle permit applications, the West Virginia Department of Environmental Protection’s Division of Water and Waste Management will soon shift to all electronic permitting for water resources permits and NPDES discharge monitoring reporting.

The DWWM plans to mandate electronic permitting

(ePermitting) by July 1, 2011. More detailed information, including training dates for the new system, will be released at a later time. The WVDEP’s Division of Mining and Reclamation mandated ePermitting on Jan. 1, 2009.

Currently, most DWWM permit applications are prepared by a private entity and submitted to the WVDEP as a hard-copy bundle of forms and documents. Using ePermitting, permit applicants can submit all of the same information to the WVDEP via the Web in a secure environment. Permit applications can be prepared, delivered, reviewed, corrected and approved using Web-based technologies that tie together industry, regulators and the public in a common interface. The only technical requirements are an Internet connection, an email account, and Internet browser software such as Microsoft’s Internet Explorer, version 7.0 or higher.

Beginning in July 2011, all discharge monitoring reporting and the following permits will require ePermitting: NPDES (National Pollutant Discharge Elimination System) Industrial Individual; NPDES Municipal Individual (sewage collection and treatment systems); Vehicle Washing Establishments (car washes); Hydrostatic Testing Water; Sewage-General less than 50,000 gallons per day (GPD); Multi-Sector Industrial Storm Water; Wastewater Discharges from Highway or Municipal Maintenance Facilities; Groundwater Remediation; Water Treatment Plants; Underground Injection Control (sewage, industrial and storm water); Disposal of Sewage Sludge to POTW (publicly owned treatment works); Land Application of Sewage Sludge; Sewage- General 600 GPD or less Individual Residence or Small Business; and Storm Water Associated with Construction Activity.

For more information, contact Mavis Layton, of the DWWM’s permitting branch, at 304-926-0499, ext. 1025 or Mavis.L.Layton@wv.gov.

Fourth Circuit Upholds Decision Requiring DEP to Issue NPDES Permits to Itself

The Fourth Circuit has upheld Judge Irene Keeley's decision that the WV Department of Environmental Protection must issue NPDES permits to itself when it assumes responsibility for reclamation at abandoned coal mines. Here is how the 4th Circuit opened its decision: 

("WVDEP") appeals an injunction requiring it to obtain

National Pollutant Discharge Elimination System permits

under the Clean Water Act ("CWA"),

see 33 U.S.C. § 1342

et seq.

The injunction was based on the district court’s conclusion

that the plain language of the CWA and applicable EPA regulations

require such a permit.

The trial court’s ruling was correct. The text of the CWA,

as well as the corresponding regulations issued by the Environmental

Protection Agency, confirm that the permit requirements

apply to anyone who discharges pollutants into the

waters of the United States. Under the CWA, it does not matter

that a mining company may have created the conditions

, for reclamation efforts at abandoned coal mining sites.

that call for reclamation. What matters is that an entity, private

or public, is currently discharging pollutants into the

waters of the United States. In fact, the statute contains no

exceptions for state agencies engaging in reclamation efforts;

to the contrary, it explicitly includes them within its scope.

At bottom, WVDEP’s arguments stem from little more than

policy disagreements with the statutory text. Finding that to

be an insufficient basis for deviating from the law as written,

we affirm the judgment of the district court.

The Court was unpersuaded by  arguments that requiring the DEP to obtain permits from itself was contrary to the intent of the Clean Water Act, or that enforcing against itself was a practical impossibility.

The decision can be found here.  A story on the decision can be  found in the AP report in the Gazettte

DEP Proposes Certification for Water Quality Samplers

The West Virginia DEP Division of Water and Waste Management has proposed a certification system for those persons who take samples of wastewater to determine compliance with wastewater discharge permits. A meeting was held early last month to discuss how the system might be structured.  It has not received a warm welcome from industry, who don't see any need for the certification.  The following description of the history of the proposal came in from William Chambers of Acacia Environmental, who wrote it shortly before the first meeting:

A discussion regarding the certification of samplers first began within a committee formed by the WVDEP in 1995, formed to discuss certification of laboratories performing analytical work for statutory programs within the purview of the WVDEP. The results of the meetings during 1995 resulted in legislation establishing the laboratory certification program; however, the field sampler certification program was dropped from consideration. Again in February 2003 the WVDEP sponsored another meeting to discuss a sampler certification program. The meeting again failed to gain support for the program and the issue has remained dormant until announcement of this recently scheduled meeting.

According to Dan Arnold, the certification of field samplers would assist in removing questions regarding the collection and handling of samples. The program envisioned would provide standardized procedures for sampling in accordance with professional standards that includes documentation of the sample collection.   The goal is to obtain more accurate data being reported by the laboratories and result in better decisions regarding each site. Mr. Arnold pointed out that the adjoining states of Pennsylvania and Virginia are working on some component of a field sampler certification program.

If a program for certification would be developed by the WVDEP, a certification would be required for each type of sampling, such as: monitoring wells, surface water, soil, soil gas, air, etc.

EPA Discusses Chesapeake Bay Restoration Plans for West Virginia

Tom Boggs has sent in reports of EPA's meetings with  citizens in the Eastern Panhandle who are interested in the effect that the Chesapeake Bay renewal effort will have on them.  EPA is proposing to limit discharges of sediment and nutrients into the Chesapeake Bay, in order to restore it to its former health.  That will mean some additional controls on discharges from WV municipalities, agriculture, and other sources of nutrients.  Here is the report from the Journal, and the report from WV Public Radio

WV Supreme Court Affirms Rights of Mineral Owners

On November 3, 2010, the West Virginia Supreme Court of Appeals released its opinion in Cabot Oil & Gas Corporation, et al. v. Randy Huffman, et al., Nos. 35508, 35509, 35510 and 35511 (November 3, 2010) (per curiam), affirming the ruling of the Circuit Court of Logan County, which overruled the DEP’s denial of well work permit applications filed by Cabot for drilling within the confines of Chief Logan State Park.

The Court held that a 1960 deed from the mineral owner, the Lawson Heirs, Inc., was clear and unambiguous in reserving to the Lawson Heirs the right to produce oil and gas in the future. The Court further held that a 1961 statute enacted by the West Virginia Legislature which prohibited the Director of the DNR from allowing the “exploitation of minerals” within state parks had no preclusive effect upon the requested permits and thus the DNR and the DEP did not have the authority to prevent the Lawson Heirs, and their lessee, Cabot, from locating wells within the State park. The Court also rejected arguments by several environmental groups that Cabot would be prohibited from drilling in the park because federal funds had been allocated by the Department of Interior for the park, and federal law prohibited the use of the lands for anything other than public outdoor recreation uses. The Court upheld the sanctity of deeds and written contracts reserving surface uses to the mineral owner.

The opinion is an important one for mineral owners and lessees who hold reserved mineral estates under public lands. A full copy of the opinion can be obtained from the West Virginia Supreme Court’s website (http://www.state.wv.us/wvsca/Fall2010.htm). Cabot was represented by Timothy M. Miller of Robinson & McElwee. For more information, contact Timothy M. Miller at 304-347-8336, or tmm@ramlaw.com.

West Virginia A Geothermal Hotspot?

A new report from Southern Methodist University says that there is tremendous geothermal energy potential in West Virginia, principally in the eastern part of the state. Furthermore, it's in a geologically stable area,which means that operations would be less likely to cause the sort of minor earth tremors that stopped a geothermal project in Switzerland.

Any renewable resource that holds the promise for reliable, base load electrical supply is welcome. The wells would have to be fairly deep, but there's a great deal of knowledge of well drilling in the state, thanks to the presence of an innovative oil and gas industry. I'll look forward to hearing more about this.

ORSANCO Passses on TDS Criterion; Adopts Variance From Mixing Zone Prohibition

The Ohio River Valley Water Sanitation Compact (ORSANCO) has approved changes to its Pollution Control Standards at a meeting held late last week. They include specification of design flows to be used for setting permit limits to protect human health criteria (the 7Q10 for noncarcinogens; the harmonic mean flow for carcinogens), and a provision to allow consideration of variances to mixing zone requirements. This latter was in response to requests by industry for relief from ORSANCO’s prohibition of mixing zones for bioaccumulatives, such as mercury, which resulted in discharge limits that were more stringent than could be met with current technology.

The proposed adoption of a total dissolved solids criterion of 500 ppm was deferred until additional information on occurrence and sources can be obtained. That matter will be reconsidered at the Commission’s February meeting.

You can see a press release from ORSANCO at http://www.orsanco.org/images/stories/files/pressreleases/2010standardsrelease.pdf

Environmental Groups File Citizen Suit Against Fola Coal

The Sierra Club and WV Highlands Conservancy announced today that they have filed suit in federal district court against Fola Coal Co's Surface No. 3 mine in Clay and Nicholas Counties, alleging violations of the Clean Water Act and the Surface Mining Control and Reclamation Act. The public statement from the organizations is found here. The opening of the statement is set forth below.

(Charleston, WV) –Prompted by stream pollution from the Fola Coal Company’s Surface Mine No. 3 in Nicholas and Clay counties, the Sierra Club and West Virginia Highlands Conservancy today filed an enforcement action against the company in federal court. Water quality tests conducted by the U.S. Environmental Protection Agency (EPA), the West Virginia Department of Environmental Protection, and the company itself have shown that the waters immediately below the mine are significantly degraded. These studies reveal that Twenty Mile Creek and Boardtree Branch, both of which receive waste discharges from the 1700-acre surface mine, are biologically impaired and toxic to aquatic life.

Judge Rules on Definition of Deep Well

State law provides different rules for deep and shallow gas wells. Deep wells are subject to pooling and field rules, and the spacing required between wells is different, depending on whether they are deep or shallow. The Oil and Gas Conservation Commission has authority over deep wells, while the Shallow Gas Review Board hears appeals on shallow gas wells.

Shallow wells are those that are drilled no further than 20 feet into the top of the Onondaga formation. (The 20 feet is needed to drill the "rat tail" and complete the well, but no gas can be produced in the Onondaga.) The dividing line between deep and shallow wells never was much of an issue until development of the Marcellus Shale, which lies directly on top of the Onondaga formation. Drilling of horizontal wells in the Marcellus is preceded by a vertical well and a rat tail that usually goes more than 20 feet into the Onondaga. The Onondaga isn't produced, and after the rat tail is logged out it can be filled with cement.

The question arose as to whether a well drilled more than 20 feet into the Onondaga is a deep well, and subject to deep well spacing, or a shallow well. The issue was originally taken to Supreme Court on a writ of prohibition, which sent it to Judge Murensky in McDowell County. Judge Murensky went with a strict interpretation of the statute and said that if a well went more than 20 feet into the Onondaga it is a deep well, even if only the formations above the Onondaga is produced. You can see his opinion here.

An effort was made during the last Legislative session to change the definition to allow drilling into the Onondaga without converting the well to a deep well. A similar effort may be made in 2011.

Manchin Announces Lawsuit Against EPA, Corps Over Coal Mining Policies

Governor Manchin held a press conference today to announce the filing of a complaint later today against EPA and the Corps of Engineers, alleging that they have unlawfully interfered with coal mining in West Virginia. The state will be represented by Ben Bailey, a well-regarded attorney who has represented the state before in matters involving the DEP. The West Virginia record report is found here, and the AP report is here.

Gov. Manchin is in an unusual position. He remains very popular in West Virginia, where he has done an excellent job as governor. In fact, the Republicans are running ads praising his work as governor, suggesting he should stay in the state to continue that work. I've heard a number of people say the same thing - the state could keep a good governor, and send a vote against Pres. Obama to the Senate in the form of Manchin's opponent, John Raese. Who would have thought that a popular governor would be defeated because he was too good? This lawsuit may be part of the Manchin counterattack, to show he wouldn't be an Obama yes-man, but to be fair it can't be solely a political ploy, as it was being discussed in the state before Sen. Byrd even died.

Secretary Huffman Appoints Task Force To Study Marcellus Drilling

DEP Secretary Randy Huffman has appointed a commission to advise him with regard to Marcellus Shale development in West Virginia. You can read the Daily Mail/AP report about the commission and Secretary Huffman's appointments here.

Marcellus Shale is a hot topic in West Virginia, but not quite the battleground that it is in Pennsylvania. There they have had total dissolved solids problems in some state streams, somerimes as a result of drillling activities, but TDS from drilling activities hasn't been a problem in West Virginia, because discharges of produced water to state streams is generally forbidden.

EPA Issues Draft Chesapeake Bay ‘Pollution Diet’

EPA has just announced its draft Total Maximum Daily Load for the Chesapeake Bay, limiting the amount of nutrients that each state can send to the Bay. I tried to get onto the EPA website and see what West Virginia's apportionment is, but error messages kept appearing, probably because so many people are trying to get on the website. Here's EPA's press release:

(PHILADELPHIA – September 24, 2010) The U.S. Environmental Protection Agency today released a draft Chesapeake Bay Total Maximum Daily Load (TMDL), a mandatory “pollution diet” designed to restore the Chesapeake Bay and its vast network of streams, creeks and rivers. The Bay is a complex ecosystem and an economic engine for the region, supporting a variety of industries from fishing to tourism.

The draft TMDL -- which EPA is legally required to produce – sets limits on the amount of nitrogen, phosphorus and sediment pollution discharged into the Bay and each of its tributaries by different types of pollution sources. It is designed to meet water quality standards that reflect a scientific assessment of the pollution reductions necessary to restore the health of the Bay ecosystem. The draft TMDL calls for 25 percent reductions in nitrogen and phosphorus and at least a 16 percent reduction in sediment to achieve a healthy Bay and local rivers. These reductions, which the science indicates are necessary to achieve a healthy watershed, would be achieved by a combination of federal and state actions.

Development of the draft TMDL followed careful EPA review of pollution reduction measures proposed by the States and the District of Columbia earlier this month in their Watershed Implementation Plans.

As a result, the draft TMDL allocations released today reflect a combination of defined state commitments and supplemental EPA measures which tighten controls on permitted “point sources” of pollution, such as wastewater treatment plants, large animal agriculture operations and municipal stormwater systems.

EPA will now work with federal partners like the Department of Agriculture, to assist Bay watershed states and the District of Columbia as they revise and strengthen the implementation plans before final versions are due on November 29.

“While EPA felt that the plans submitted by Maryland and the District of Columbia represented a strong start, others still contained gaps that reduced EPA’s confidence that the State could achieve all the pollutant reductions necessary to meet its contribution to Bay restoration,” said EPA Regional Administrator Shawn M. Garvin,. “We are hopeful that the jurisdictions will provide a greater level of assurance in their final plans, so that EPA can reduce the federal measures in the final TMDL. EPA strongly prefers to achieve the necessary pollution reductions through the state plans rather than federal actions because the states have more flexibility and can achieve reductions from a wider range of sources than EPA.”

The Draft TMDL which contains evaluations of the plans and EPA adjustments for all seven jurisdictions can be found at http://www.epa.gov/chesapeakebaytmdl.

The release of the draft TMDL begins a 45-day public comment period that will include 18 public meetings in all six watershed states (Virginia, Maryland, Pennsylvania, Delaware, New York and West Virginia) and the District of Columbia. A full public meeting schedule, including registration links for online broadcast is available on the Bay TMDL web site: http://www.epa.gov/chesapeakebaytmdl. The web site also provides instructions for accessing the draft TMDL and providing formal comments.

The TMDL is designed to ensure that all pollution control measures to fully restore the Bay and its tidal rivers are in place by 2025, with 60 percent of the actions completed by 2017. The final TMDL will be established December 31.

On July 1, EPA set draft Bay-wide limits for nitrogen and phosphorus at 187.4 million and 12.5 million pounds per year, respectively, and on Aug. 13 set a range of allowable sediment pollution levels at between 6.1 and 6.7 billion pounds per year. These Bay-wide pollution limits were further divided by jurisdiction and major river basin based on state-of-the-art modeling tools, extensive monitoring data, peer-reviewed science, and close interaction with state partners.

The TMDL is supported by accountability measures to ensure cleanup commitments are met, including short-and long-term benchmarks, a tracking and accounting system, and additional federal actions, if necessary, to spur progress. It will build on state programs already in place, some of which are helping reduce pollution and improve the Bay’s health – for instance, Maryland reported a record sign-up this fall for one of its most successful agricultural pollution control programs, achieving more than 150% of its two-year goal for the Chesapeake Bay.

The TMDL was prompted by insufficient restoration progress over the last several decades in the Bay. The TMDL is required under federal law and responds to consent decrees in Virginia and D.C. dating back to the late 1990s. It is also a keystone commitment of a federal strategy to meet President Obama’s Executive Order to restore and protect the Bay.

West Virginia DEP Continues Work on Long Term Brownfields Maintenance Program

Remediation of land contamination is seldom completed at the time earth moving ends. Cleaning up contaminants to background levels is usually not cost-effective or necessary, as long as future exposure to the contaminants will be limited. That might be done by, for example, by placing a concrete cover over the affected area, or putting a restriction in the deed against use of the land for residential housing. Those institutional and environmental control obligations stretch into the future, and there's always a chance that the party who makes the commitment won't be around in the future to maintain physical structures, or that the protections will simply be forgotten.

In order to provide for long term closure obligations, the DEP is establishing a program to carry out long term maintenance. Here's a fact sheet explaining the process, which opens with the following explanation of the program:

In February 2009, the West Virginia Department of Environmental Protection (WVDEP) established the WV Institutional Controls Focus Group (IC Focus Group) to provide an independent perspective to WVDEP about the feasibility of utilizing a public-private land stewardship program for the long-term safeguarding of remediated sites using institutional controls (ICs) and engineering controls (ECs) (collectively, IECs) to ensure that the remedy remains protective of human health and the environment. . .

The primary outcomes of this initiative will be recommendations and pre-implementation activities concerning the structure and operation of the voluntary land stewardship program. To date, this effort has resulted in an agreed organizational structure, site acceptance criteria and procedures, model agreements, as well as approaches to inspection, monitoring, reporting and notice.

Beginning later this year, several pilot projects will be conducted to demonstrate, strengthen and refine the proposed program. The pilot sites include sites from the State Voluntary Remediation Program (VRP) and completing corrective-action under the Resource Conservation and Recovery Act (RCRA). In addition, financial analysis will be conducted to ensure the design of a viable entity with the necessary safeguards and standards needed for a permanent perpetual-care solution. Approximately a year after the pilots are implemented, the voluntary land stewardship program will begin to offer its services to the public and will accept additional sites into the program. The program will be available for sites with IECs remediated or closed under any federal or State environmental or remediation program, including brownfields, underground storage tanks, landfill closures, open dumps, hazardous waste sites, or sites with ongoing water treatment as part of mine reclamation efforts. More detailed information is available in the WV Institutional Controls Focus Group Interim Report dated September 9, 2010.

Thanks to Rob Lannan of Robinson & McElwee and others who worked on this process.

WVU Participates in EPA Sustainability Initiative

EPA Welcomes West Virginia University as Newest Partner

in Regional Sustainability Initiative

MORGANTOWN, W. Va. - - September 21, 2010 Today, West Virginia University became the latest organization to join the U.S. Environmental Protection Agency’s Sustainability Partnership Program (SPP) in a signing ceremony held at the University President’s Office. EPA Regional Administrator Shawn M. Garvin joined Cabinet Secretary Randy Huffman of the West Virginia Department of Environmental Protection (WVDEP) in recognizing West Virginia University (WVU).

University President James P. Clements signed the agreement on behalf of the school, formalizing the new working partnership.

“WVU has already taken many progressive steps to reduce the overall environmental footprint of the campus, and EPA is pleased to support and further those efforts” said EPA mid-Atlantic Regional Administrator, Shawn M. Garvin. “Through our partnership we expect that both sides will benefit as we build on current successes and then share those practices with other colleges and organizations.”

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.

The centerpiece of West Virginia University's sustainability effort is a performance contract to make existing buildings energy efficient. By 2016, the university expects to spend $50 million on updating equipment and installing energy saving upgrades in all of its campuses, including WVU Tech, Potomac State College and WVU-Parkersburg. So far the Evansdale campus has been completed, and the university has already spent about $20 million.

Following this project, the university is expected to reach a carbon dioxide emission level that is 31.5 percent less than a typical educational complex its size.

"We are pleased to partner with the EPA as part of our commitment to a sustainable campus," said WVU President James P. Clements. "We have integrated sustainability practices throughout the University - from buildings to our transportation systems, to the cleaning products we use. I would like to thank Clement Solomon, WVU's director of sustainability, and all those throughout the University who demonstrate this commitment daily."

The West Virginia Department of Environmental Protection has entered into an agreement with EPA and is helping to promote the SPP throughout the state.

“It is a great day for West Virginia University with the signing of the Sustainability Partnership Agreement,” said WVDEP Cabinet Secretary Randy Huffman. “West Virginia University’s commitment to developing sustainable energy, water, and waste conservation practices in harmony with preserving West Virginia’s economy, environment, and communities for future generations speaks volumes of the many contributions already made to create a sustainable school. By signing this agreement, West Virginia University is well on their way to preparing our young people for generations of sustainable living, through its education, its fabric, and its daily practices.”

For information on the Sustainability Partnership go to: http://www.epa.gov/reg3wcmd/spp/index.html or call, 215-814-3110.

Business Groups Challenge Greenhouse Gas Regulation

Joseph P. Koncelik has a great blog entry about a challenge by several large business organizations, including the National Association of Manufacturers, to the application of all of EPA's GHG regulations other than the automobile tailpipe rules limiting GHG emissions from vehicles. This is not a direct attack on the Tailoring Rule, but a broader effort to stay the effect of all other GHG rules. As he explains it,

Business groups had no alternative but to seek a stay given the ramifications of EPA embarking on this regulatory path. Typically, you would ask to stay the effectiveness of a specific rule. However, delaying the legal effectiveness of the Tailoring Rule would arguably subject all businesses to the ridiculously low permitting thresholds 100/250 tons in the Clean Air Act.

As result, business group are challenge the very premise the EPA had to enact the Tailoring Rule because otherwise the 100/250 ton thresholds would take effect after enactment of the vehicle tailpipe rule.

This type of lawsuit, and similar challenges to EPA's Endangerment Finding (that CO2 presents a danger) and Tailoring Rule (explaining how EPA will regulate GHGs), as well as environmentalists' challenge to EPA's decision to ignore the 100/250 ton threshold for regulation of GHGs that would otherwise be required by the Clean Air Act, are all pending before courts. Some of them will likely rule one way or the other on stay requests before the end of the year, before the Tailoring Rule goes into effect.

National Mining Association Sues EPA Over Water Guidance

The National Mining Association filed suit in federal district court in Washington over the June, 2009 and April, 2010 guidance on the application of water quality standards to Appalachian coal mining. I have not seen the complaint, which seeks injunctive relief preventing EPA from enforcing the guidance, but there is a report from Amena Saiyid at Platts here that provides more information about the lawsuit.

DEP and Marshall Sponsor Sustainable Schools Summit

Marshall University, in partnership with the West Virginia Department of Environmental Protection, will present the 2010 Sustainable Schools West Virginia Summit April 10-11, 2011.

The previously scheduled summit was moved due to scheduling conflicts.

The free event is designed to bring together educational leaders in elementary, secondary and higher education – both public and private – to discuss the important roles schools, colleges and universities have in creating sustainable campuses across West Virginia. The summit will take place on Marshall’s Huntington campus and is open to public and private higher education, as well as public and private K-12 schools.

Online registration is available at

http://apps.dep.wv.gov/registration. An agenda is also available at this site.

The summit is presented in concert and partnership with the WVDEP, Marshall University’s Sustainability Department, State Electric Supply Company, and ZMM, Inc.

For information, contact MU Sustainability Manager Margie Phillips at philli10@marshall.edu or 304-696-2992.

Internal Combustion Engines Here to Stay

In our race to the future of all electric vehicles, we sometimes forget that the internal combustion engine is going to be with us a long time. For many years to come, the primary effort will be to wring more power out of a gallon of fuel, rather than convert wholesale to electric vehicles. That's why diesel is likely to make a comeback, because of greater fuel efficiency and new standards that make them less smelly and more environmentally friendly. Marry a diesel to a hybrid, as Peugeot is doing, and you have quite a car. The same can be said about a new version of an old idea, the opposable cylinder engine concept, which has received fresh attention from venture capitalists, including Bill Gates, as it overcomes some of its two-stroke problems.

On the other hand, some new, brilliant ideas have to be shelved when they just turn out to be impractical. Say goodbye to the compressed air car, which could never overcome its efficiency problems, or difficulties with low temperature exhaust.

WVMA Comments on Boiler Rule MACT

The West Virginia Manufacturers Association filed comments on the EPA's proposed boiler MACT, which can be seen here. The WVMA was lending its voice to the many trade associations and companies that are concerned about EPA's proposal to impose new restrictions on hazardous air pollutants emitted by industrial boilers. Industrial plants have large boilers that are used to heat chemical processes, provide power, and otherwise make products. Such emissions are subject to Maximum Achievable Control Technology, which is a Clean Air Act term that specifies the type of pollution control that is required. More about MACT can be found here.

Thanks to Anne Blankenship, who drafted the letter and forwarded it to me.

Obama Administration Opposes Nuisance Suit Against Utilities

The Obama Administration has joined sides with those opposing a lawsuit by several states and NGOs seeking to enjoin Eastern coal-fired power plants from operation under a nuisance theory. The Tennessee Valley Authority, a federal agency, is one of the coal-burning entities under attack, and the Justice Department filed a brief on its behalf asking the Supreme Court to review a decision by the Second Circuit that allows the suit to proceed. The Administration argues that it has regulated greenhouse gases, leaving no room for nuisance actions by private entities. The Washington Post story is here, while the Natural Resources Defense Council blog expressing umbrage at the Administration is here.

There have been a number of lawsuits by entities (Inuit villages, states, coastal communities) seeking damages from corporations they believe are harming them by contributing to global warming. Global warming and, more importantly, its alleged harmful effects, are gospel among true believers, but it would be interesting to see whether the science holds up if it is subjected to the sort of scrutiny that would occur in a court of law.

WV DEP Expands Environmental Advocate Office

I question whether increasing the size of the Office of the Environmental Advocate is the best use of taxpayer dollars, as opposed to hiring more inspectors, but here we go:

The Department of Environmental Protection has expanded its Office of the Environmental Advocate with the addition of two staff members.

“I wanted to expand the office because the citizens of West Virginia have an increased interest and awareness of environmental issues and we want to be responsive to their need for information and involvement,” said DEP Cabinet Secretary Randy C. Huffman.

Dennis Stottlemyer and John King joined the staff Sept. 1, and will assist Pam Nixon, who has been the sole environmental advocate since she joined the agency in November 1998. The Office of the Environmental Advocate has been in existence since the establishment of the DEP in 1992. This is the first time in the office’s 18 years of operation that is has been expanded.

Stottlemyer will be located in the Charleston office and King will work out of the Fairmont office. Huffman said their role will be to interact with individual citizens in the state, as well as work with community organizations and citizen’s groups

“Their main focus will be to close the gap between the agency and the citizens of the state,” Huffman said.

Stottlemyer is a 1995 graduate of West Virginia University, with a bachelor’s of science degree in environmental protection. Prior to being selected for this position, he was mitigation coordinator for the DEP’s Division of Mining and Reclamation. He also served as an executive assistant to the cabinet secretary for the DEP and was an environmental consultant prior to joining the agency. He is a member of the Davis Creek and Coal River watershed associations.

King earned a bachelor’s degree in criminal justice in 2002, and a master’s degree in physical science in 2007 from Marshall University. His experience includes being an inspector with the DEP’s Division of Water and Waste Management, and a regional coordinator for the Youth Environmental Program. He is also a member of the DEP’s dive team, and a founding member of the Morris Creek Watershed Association.

“This addition will allow DEP to reach more of its citizens,” Nixon said. “When it was just me, no matter how hard I tried, I was never able to address everyone’s concerns and issues. Now, DEP will be better able to meet with and communicate with more of West Virginia’s citizens.”

To reach the Office of the Environmental Advocate, call 800-
654-5227 or 304-926-0441. To reach Nixon email:
Pamela.Nixon@wv.gov. Stottlemyer can be reached at:
Dennis.O.Stottlemyer@wv.gov; and King at:
John.M.S.King@wv.gov.

Secretary of Energy Chu Visits Charleston, Discusses Carbon Capture

In an event co-sponsored by Robinson & McElwee, Secretary of Energy Chu came to town yesterday to talk about carbon sequestration, a process which would separate the carbon dioxide from power plant emissions and force it underground under great pressure in order to prevent its contribution to global warming. Grants are being given to WVU and other research institutions to investigate ways this can be accomplished. The Associated Press/WSAZ reports on it here. The Gazette and Daily Mail reports are not yet available.



Carbon capture and sequestration (CCS) is not easily accomplished. Not only is the technology involved in sequestering carbon difficult to implement on a large scale, there are improtant public policy issues to be resolved, such as who owns the underground geologic formations into which the carbon is sent, and will the costs of obtaining those rights cause CCS to be prohibitively expensive. The WV Legislature has a group studying the issue under the leadership of former DEP Secretary Stephanie Timmermeyer, and anyone interested in the subject would benefit from a review of its preliminary report, released in July.

Kanawha River Clean Up Is This Weekend

The 21st annual Great Kanawha River Cleanup, sponsored by the West Virginia Department of Environmental Protection, is scheduled from 8 a.m. to noon on Saturday, Sept. 11.

Cleanup sites along the Kanawha River will include the beach at Winfield Locks; Roadside Park in St. Albans; Magic Island in Charleston; and Gauley Bridge (next to the former Save-A-Lot location).

Those wishing to volunteer are urged to register with the DEP so enough supplies can be obtained for each cleanup location. The DEP’s REAP program (Rehabilitation Environmental Action Plan) will supply bags and gloves for volunteers and will arrange for trash to be hauled away.

Last year, close to 100 volunteers collected 6.15 tons of debris and 70 tires.

For more information or to register to volunteer, contact Travis Cooper at 304-926-0499 ext. 1117, or e-mail:

Travis.L.Cooper@wv.gov.

West Virginia Gas Industry Faces New Regulations

The natural gas drilling industry has grown in West Virginia since the development of the Marcellus Shale formation began a few years back. The Marcellus Shale is a geological formation that holds lots of natural gas, but that gas is tightly locked away, unlike conventional formations of, say, sandstone, where the gas can flow more easily through the pore space in the formation. Horizontal drilling and fracturing the formation along the drill hole has opened up huge areas to drilling in WV, PA and NY, but has also created concern among residents over water withdrawals, the use of fracking chemicals, and the size of drill sites. Horizontal wells require much larger pits to hold the water used for fracking, and for the produced water that comes out of the hole. It also means there are lots more trucks on smaller secondary roads, bringing heavy equipment and water into the drill site.

Last month Gov. Joe Manchin called together the industry and opponents to discuss the future of gas drilling, and announced there would be changes coming in the future. There was the implied threat that those who do not cooperate may see permits harder to come by. He's putting together a group to study possible changes and to make recommendations. As Gov. Manchin is widely expected to become Senator Manchin in November, he'll leave someone else to see this process to completion.

In the meantime, lots is going on. Here is a guidance from the Department of Highways on dealing with damages to roads and requiring bonds for possible road damage. Here is a report from the Associated Press regarding plans to increase the number of inspectors and other actions by the DEP, including a possible two-tier approach to permitting, one for smaller conventional wells and the other for larger horizontal wells. In addition, the Office of Oil and Gas recently took comment on revisions to its sediment and erosion control best management practices, and those will likely be changed in the near future to require additional pit construction controls and reclamation requirements for horizontal wells.

Judge Chambers Holds Mining Company in Contempt

Judge Robert C Chambers of the USDC for the S. Dist of WV has been hearing, and ruling intermittently on, a long-running citizen suit brought against Apogee Coal and Hobet Mining. Ohio Valley Environmental Coalition, et al, v. Apogee Mining et al. His most recent ruling orders the coal companies to come into compliance with selenium limits at specified outfalls by Spring, 2013, and orders the installation of selenium treatment developed by their experts, CH2M Hill. A special master will be appointed to oversee the implementation of the selenium treatment.

The ruling is somewhat remarkable in that it holds Apogee in contempt for not exercising reasonable diligence in complying with an earlier order of the Court to install selenium treatment. The Court will consider what penalties to impose and whether to award attorneys fees and issue a ruling later this month.

Spark Iginition Engine NESHAPS Issued by EPA

Anne Blankenship reports that EPA has issued its final national emission standards for hazardous air pollutants for existing stationary spark ignition reciprocating internal combustion engines that either are located at area sources of hazardous air pollutant emissions or that have a site rating of less than or equal to 500 brake horsepower and are located at major sources

of hazardous air pollutant emissions. These types of engines are frequently used for natural gas compression on pipelines.

This final rule is effective on October 19, 2010. A summary of the final rule is attached. You can find the complete federal register publication of the final rule at this link: http://edocket.access.gpo.gov/2010/2010-20298.htm

Coal Power Plant Construction Speeds Ahead

Roger Pielke Jr. reports on the increase in coal-burning power plants, both here and in China. A an editorial was in yesterday's Daily Mail. The Associated Press also has an article on the issue. Given the long lead time for these plants, one wonders if companies weren't trying to get coal-fired base load plants in place so they could be grandfathered under anticipated climate change legislation. It looks less and less likely like that will happen.

West Virginia DEP Issues Narrative Criteria Guidance for Surface Mines

The West Virginia Water quality standards, 47 CSR 2, provide limits on the amount of pollutants that are allowed in state waters. Some of those limits are set as numbers that are not to be exceeded, but there is a section that describes, in words, what conditions are not allowed, like color in the water, or toxic effects. That has always raised some questions as to implementation, particularly as the narrative criteria are being used by EPA to deny mountaintop removal permits. The DEP has now come out with a guidance for implementing the narrative standard for surface mines. Below is the DEP's press release.

As the West Virginia Department of Environmental Protection committed to doing in March, the agency has developed a guidance document for implementing and enforcing West Virginia’s narrative water quality criteria. The guidance document was developed in accordance with parameters set forth in the federal Clean Water Act and applied through the West Virginia Water Pollution Control Act.

The guidance document is a tool to be used by the DEP to develop National Pollutant Discharge Elimination System

(NPDES) permits for the coal mining industry. The goals of the document are to advance water quality and assure that surface mining operations are conducted in ways that protect the narrative water quality standards.

Comments submitted by members of the public, as well as data and studies conducted by DEP staff were used in the development of the guidance document.

“We trust that EPA will give deference to West Virginia’s guidance document, as it was created to satisfy requirements outlined in the Clean Water Act,” DEP Cabinet Secretary Randy Huffman said.

The guidance document addresses matters such as reasonable potential analyses for aquatic impacts downstream and extensive monitoring before and during mining to ensure that aquatic life use is being adequately protected.

“This document will result in changes that are markedly different from how mining has been conducted for the last 30 years,” Huffman said.

The DEP considers the guidance a dynamic document that will likely be modified in the future as technology and best management practices develop and improve.

In addition, while this document specifically addresses concerns related to the mining industry, it is designed to be adapted in the future to address all discharges to water bodies that will cause, or that have the reasonable potential to cause or contribute to, excursions from narrative water quality standards.

BACKGROUND

It became apparent in 2009 that the absence of a written plan to address narrative water quality criteria at the state level led the US Environmental Protection Agency to insert itself into the 404 and 402 permitting processes.

Not only is EPA exercising its veto authority, it has completely taken control of all water-related permitting for mining activities.

On April 1, when the EPA issued its “comprehensive guidance” regarding requirements of the 402 and 404 Clean Water Act permitting programs, it allowed for the states to establish their own requirements. That is what West Virginia is doing.

Huffman said, “We developed this guidance document for West Virginia in a manner that we are confident is consistent with the Clean Water Act.”

The guidance document, an accompanying justification and background document and the comments submitted by the public in March are available on the agency’s website at www.dep.wv.gov under the Permitting section of the home page.