Harmonic Mean Flow - the Camel's Nose Appears Under the Tent Flap

NPDES permits issued under the Clean Water Act have limits that are set to protect water quality in the river into which pollutants are discharged.  The State's water quality standards are generally expressed as ratios, in the form of milligrams or micrograms per liter.  In order to comply with those standards most dischargers use a mixing zone, where concentrations of a pollutant (e.g., aluminum) in wastewater that are higher than allowed under the standards are allowed to mix with the receiving river, and are diluted. In order to determine how much dilution is available one has to know the flow of the river, the existing load of the pollutant in the river, and the pollutant load and flow of the discharge. The flow of the river used to calculate limits is referred to as the "critical design flow."

In issuing NPDES permits the West Virginia DEP usually uses a very conservative critical design flow referred to as the 7Q10, or the lowest 7 day consecutive flow that recurs at least once every 10 years.  It's a pretty low flow, meaning that the dilution available is low, and that means NPDES permit discharge limits are lower as well, because there's less water to mix with.  Even though the flow in the river, and therefore the amount of water available for mixing, is higher 99% of the time, the low 7Q10 flow is used to set limits  in order to protect water quality even during drought periods.

Using the 7Q10 flow for permitting makes sense if you're trying to protect aquatic life, because fish and bugs are present during low flow conditions.  But water quality standards are also set to protect drinking water supplies, and here is where the 7Q10 doesn't make sense. Human health water quality criteria for carcinogens are set at very low levels because the assumption is that the criterion for, say, benzene, must protect someone who drinks a liter of water  per day from that river for 70 years.  Since the low and high levels of the stream, and it's diluent capacity, tend to average out over that 70 years, a different flow can be used to set limits for carcinogens.  The critical design flow that should be used to calculate permit limits in that circumstance is often referred to as the harmonic mean flow, which roughly approximates the average flow of the river.

So a  low flow is used to set permit limits that  protect fish from acute effects of drought, and an average flow is used to set limits for carcinogens, which involve long term average exposures.  Or, at least, the harmonic mean flow should be used for setting permit limits for carcinogens.  Instead, for reasons I won't go into, but have everything to do with politics, and bear no relation to science, the 7Q10 is used to calculate limits for aquatic life and (overprotective) limits for human carcinogens.

All of this is background to the fact that, very quietly during the 2011 Legislative session, a change was made to the water quality standards to allow use of the harmonic mean flow to set permit limits in a certain place on the Ohio River. (See notice below.) My hat goes off to the accomplished lobbyist who put that change in the standards.  I hope that it is applied statewide in the years to come. 

The West Virginia Department of Environmental Protection has scheduled a public hearing on 2011 state legislative revisions made to Rule 47CSR2, “Requirements Governing Water Quality Standards.”

The hearing is scheduled for 6 p.m. on Tuesday, May 3, at DEP headquarters, 601 57th St., S.E., Charleston, in the Coopers Rock Training Room. In addition to oral comments provided at the hearing, the agency will accept written comments at any time up to the conclusion of the public hearing. No comments will be accepted after that time. 

Revisions made during the past legislative session added language to Rule 47CSR2 that addresses the critical design flow for determining effluent limits for carcinogens on the Ohio River between mile points 68.0 and 70.0.

DEP Appeals Environmental Quality Board Decision Remanding Patriot Mining NPDES Permit

The West Virginia Department of Environmental Protection, Division of Mining and Reclamation, has appealed the Environmental Quality Board's decision remanding the NPDES permit for Patriot Mining's New Hill West mine to require the DEP to, among other things, perform a reasonable potential analysis for arsenic, conductivity, sulfate and total dissolved solids (TDS) and to develop permit limits for conductivity, sulfate and TDS.  The appeal filing is here, courtesy of Ken Ward at Coal Tattoo.

One error alleged by the State  is the Board's refusal to restrict reliance on EPA's guidance for Appalachian coal  surface mining, in which EPA used a questionable methodology to impose limits on surface mine discharges based on conductivity. The guidance was undergoing further review, but the Board still allowed the Sierra Club to rely on the findings in it as support for its appeal. The DEP filed a motion in limine, but it was deemed to be filed late, and an oral motion in limine was rejected.

The EPA guidance poses significant problems for mining, but its underlying premise is troubling for anyone with an NPDES permit. Permits  issued pursuant to the Clean Water Act have to contain limits that will result in compliance with water quality standards.  In the past, that has meant meeting the numeric limits in the state water quality standards (47 CSR 2) for specified substances, like iron or benzene.  However, there are also vague narrative criteria (Section 3) that prohibit conditions in state waters, such as color, sediment, or toxicity to aquatic life.  The EPA seized upon the toxicity portion of the narrative water quality standards and concluded that marginal reductions in certain Mayfly populations were evidence of toxicity, and that a proxy for that toxicity was conductivity. (Conductivity is the measure of ions in water, and is often used as a means of estimating dissolved solids.)  Using imprecise biological measurements and EPA's guidance, the Sierra Club was successful in convincing the Board in this appeal that there was some impairment likely to be caused in certain aquatic or benthic species, resulting in a violation of the narrative water quality standard, and therefore additional  permit limits  were needed.

Another error alleged by the State is the Board's decision with regard to those permit limits. On the one hand, it required the DEP to perform a "reasonable potential" (RP) analysis to determine whether the mine's discharge could violate water quality standards for arsenic, conductivity, sulfate and TDS.  On the other hand, it must have presumed the RP analysis would show the need for limits, as it required limits for conductivity, sulfate and TDS.

There's another question that is posed by the DEP's appeal, but not raised in the appeal notice - whether the EQB has the authority to remand permits to the DEP for modification.  Remand is clearly allowed by the WV Administrative Procedures Act, but that section is overridden by WV Code 22B-1-7(g) which gives the Board authority to approve, vacate or revise a permit, but does not mention remand.  The Board has historically remanded permits with no objection by either party, but I believe the Board's authority to do so may be questioned in the near future. I imagine that Jennifer Hughes, the DEP's very capable attorney, felt she had enough on her hands without taking that issue up as well.

TransGas to Break Ground on Coal Gasification Project in Mingo County

I don't usually post on matters that I'm working on professionally, but I thought I'd make an exception for the Mingo County  coal-to-gasoline plant that will break ground in Mingo County on May 9th. Adam Victor of TransGas Development Systems deserves acknowledgement for the advanced coal gasification project that he'll be constructing there at a cost of billions of dollars.  A report on the project and information about the groundbreaking can be found here.

 The plant, expected to produce over 750,000 gallons of gasoline per day, is being constructed a a minor source of air pollutants.  This report from CoalGeology.com states that

The Adams Fork Energy plant will convert regional coal into premium grade, ultra clean gasoline, and will produce 18,000 barrels (756,000 gallons) per day.  Following a four year construction period, this plant will create nearly 300 full-time, direct jobs, and is expected to triple the tax base in Mingo County. The facility was permitted by the State of West Virginia’s DEP based on PRENFLO PDQ gasification technology provided by Uhde, a wholly owned company of the ThyssenKrupp Group. Uhde is the world leader in coal gasification and has decades of experience in coal gasification

Supreme Court Hears Oral Argument In Global Warming Lawsuit

The US Supreme Court is considering a lawsuit that several States and environmental groups have filed (American Electric Power, et al., v. Connecticut, et al. (10-174)) against several electric utilities, arguing that their emissions of greenhouse gases are a nuisance that is actionable at law.  The companies and the US contend that the regulation of greenhouse gases has been preempted by the Clean Air Act and federal programs, effectively prohibiting common law actions such as nuisance.  The appeals court ruled in the utilities' favor.

During oral argument the justices were concerned about the difficulty of resolving a supposed global problem with a lawsuit in which a few emitters are named, and the impossiblity of crafting a workable remedy for an international situation. Here is the report from SCOTUSblog that provides a summary of the argument before the Court.

EPA Solicits Comment On New Storm Water Permit For Construction Activity

EPA is proposing a new storm water permit for construction activities.  This general permit would apply to storm water runoff from earth-disturbing activities  in states that do not have authority to write NPDES permits.  West Virginia is a delegated state and does have that authority.  It issues its own NPDES permit for storm water discharges from construction, generally for a 5 year term.  While the West Virginia DEP does not have to follow the federal permit, it generally will do so when it reissues after the current permit expires in December of 2012. 

Here's EPA's notice of the new permit, and the opportunity to comment:

1) EPA Solicits Public Comment on Permit to Reduce Stormwater Discharges from Construction Sites The U.S. Environmental Protection Agency (EPA) is releasing for public comment a draft permit that will help improve our nation’s waterways by regulating the discharge of stormwater from construction sites. Stormwater discharges during construction activities can contain sediment and pollutants that harm aquatic ecosystems, increase drinking water treatment costs and pollute waters that people use for fishing, swimming and other recreational activities.

The proposed Construction General Permit (CGP) includes a number of enhanced protections, including enhanced provisions to protect impaired and sensitive waters. Some of the significant proposed permit modifications include new requirements for:

•         Eligibility for emergency-related construction

•         Required use of the electronic notice of intent process

•         Sediment and erosion controls

•         Natural buffers or alternative controls

•         Soil stabilization

•         Pollution prevention

•         Site inspections

•         Stormwater Pollution Prevention Plans

•         Permit termination

Many of the new permit requirements implement new effluent limitations guidelines and new source performance standards for the construction and development industry that became effective on February 1, 2010. These requirements include a suite of erosion and sediment controls and pollution prevention measures that apply to all permitted construction sites.

The permit will be effective in areas where EPA is the permitting authority, including four states (Idaho, Massachusetts, New Hampshire and New Mexico); Washington, D.C.; most territories; and most Indian country lands.

The public will have 60 days to comment on the draft permit. EPA anticipates that it will issue the final construction general permit by January 31, 2012.

The current permit is scheduled to expire on June 30, 2011; however, EPA is proposing to extend the current permit until January 31, 2012 to provide sufficient time to finalize the new permit.

More information on the proposed construction general permit: http://cfpub.epa.gov/npdes/stormwater/cgp.cfm

DEP Employee Wins Award From EPA

Congratulations go out to Greg Adolfson for winning an award from EPA for environmental achievement.

EPA Honors WV DEP Employee for Environmental Achievements

PHILADELPHIA (April 14, 2011) – The U.S. Environmental Protection Agency’s mid-Atlantic Region selected 11 winners, including Gregory Adolfson, an employee of West Virginia’s Department of Environmental Protection, for its 2010 Environmental Achievement awards. Adolfson’s work at the state DEP won him EPA’s award in the ‘individual’ category, and has been instrumental in getting businesses, manufacturing companies, and universities in West Virginia to partner with the state and EPA to implement environmentally-sustainable practices. 

“People and organizations throughout our region are making great strides in environmental protection, and these awards recognize some of the shining stars who are doing more than their share to keep our planet healthy and inspiring others to do the same,” said Shawn M. Garvin, regional administrator for EPA’s mid-Atlantic region. 

As West Virginia DEP’s sustainability officer, Adolfson helped establish a memorandum of agreement between DEP and EPA to work jointly to promote sustainable practices as a way to improve air, water and land.  This collaboration has led to sustainability partnership agreements with DOW Chemicals, Toyota Motor Manufacturing, Marshall University and West Virginia University.  The state has also created its own program to help communities become environmentally sustainable through water and energy conservation, pollution prevention, and education.   

EPA presents awards in three categories: non-profit or volunteer organization; business and industry; and state, local or other federal government agency.  For a full list winners and more information on the awards, visit: http://www.epa.gov/region03/EnvironmentalAwards/winners2010.htm

 

New Website Provides Frac Fluid Information

One of the complaints about hydraulic fracturing, the process of putting water and chemicals into shale formations to fracture them and thereby increase gas production,  is that  the composition of the frac fluid is sometimes a trade secret. Companies that produce fracking fluids want to protect their individual recipes, while landowners want to know what is going underground.  Now anyone interested in finding out what is being sent downhole can find out on a well-by-well basis.  This is a voluntary effort undertaken by some of the largest gas drilling and production companies  in the country.

National Registry Provides Public and Regulators Access to Information on Chemical Additives Used in the Hydraulic Fracturing Process

Ground Water Protection Council and Interstate Oil and Gas Compact Commission Unveil the Nation’s First Single-Source Website Disclosing Additives on a Well-by-Well Basis at www.fracfocus.org

OKLAHOMA CITY, April 11, 2011 – The Ground Water Protection Council (GWPC) and the Interstate Oil and Gas Compact Commission (IOGCC), with funding support from the United States Department of Energy (DOE), unveiled a landmark web-based national registry disclosing the chemical additives used in the hydraulic fracturing process on a well-by-well basis. The information on the website covers wells drilled starting in 2011. The initiative provides energy companies involved in oil and gas exploration and production a single-source means to publically disclose the chemical additives used in the hydraulic fracturing process.

Used in the development of deep shale horizontal wells, hydraulic fracturing fluid is a mixture of water and sand with a small amount of chemical additives to enhance the production of hydrocarbons from otherwise inaccessible oil and gas reserves deep below the earth’s surface. Water and sand generally comprise approximately 98 percent of hydraulic fracturing fluid volume. The fracturing fluid is pumped at high pressure underground to create small cracks, or fractures, releasing the trapped oil and gas from rock formations allowing it to flow through the wellbore to the surface where it is captured. The process, which has been the subject of a number of state regulatory initiatives, public interest and an ongoing study by the United States Environmental Protection Agency (EPA), is overseen by regulatory professionals at the state level in the field of earth science.  Over 90 percent of the wells drilled in the United States use the hydraulic fracturing process.

The new website, www.FracFocus.org, features an easy-to-use interface that gives the public and regulators access to comprehensive information about hydraulically-fractured wells nationwide. Searchable fields allow users to identify wells by location, operator, state and county, as well as a standard well identification number, known as an API number. The site also contains general information on the hydraulic fracturing process, water protection programs, descriptions of the chemicals used and their function in the process, and the Chemical Abstract Services registry number of each additive. A “Frequently Asked Questions” section is also included. The site also features information on private water wells, outlining steps landowners can take to learn more about operating and maintaining their water wells.

Participating energy companies voluntarily upload information about the chemical additives and the proportion used in each hydraulic fracturing job using a standard template. As of the launch, 24 energy companies are participating in the www.FracFocus.org project.  In addition, several state regulators are actively encouraging energy companies to disclose information through the national chemical registry.

“For the past six months, our two organizations have been working together to build this first-of-its-kind web-based national chemical registry,” said Mike Paque, executive director of the GWPC. “As more and more questions were asked about the hydraulic fracturing process the past couple of years – particularly relating to chemical additives used in the process – we recognized an obstacle to greater disclosure was the lack of a uniform and efficient way to collect, report, and ensure public access. Information about additives used in the process was widely distributed, but difficult to access.”

“States have regulated the hydraulic fracturing process for more than half a century,” said Mike Smith, executive director of the IOGCC. “Until now, regulators and the public had no single site where they could easily access useful information on hydraulic fracturing and the additives used in the process. That said, the website will be a useful new tool to help the public learn about the hydraulic fracturing process. Our organizations have a responsibility to keep the public informed. We see this site as a step forward, and we expect it will evolve even more in the future.”

List of Participating Energy Companies

Anadarko Petroleum Corporation

Apache Corporation,

BP America Production Company

Cabot Oil & Gas Corporation
Chesapeake Energy Corporation.  
Chief Oil & Gas LLC
ConocoPhillips Company
Devon Energy
El Paso E&P Company
EOG Resources, Incorporated
EQT Production
High Mountain Exploration & Production LLC
Marathon Oil Corporation
Newfield Exploration Company
Pioneer Natural Resources
Plains Exploration & Production Company
QEP Resources, Inc.
Seneca Resources Corporation 
Shell Exploration and Production Company  
SM Energy
Southwestern Energy Production Company
Talisman Energy USA Incorporated
Williams
XTO Energy / ExxonMobil

About the IOGCC and GWPC

            The IOGCC is an organization that represents the governors of more than 30 oil and gas producing states. Its mission is to conserve domestic oil and gas resources while ensuring environmental protection. The GWPC is an organization composed of state water and Underground Injection Control agencies unified by a mission to protect and conserve groundwater as a critical component of the ecosystem.

DEP Schedules Training For Electronically-Submitted Discharge Monitoring Reports

  

Beginning July 1, 2011, West Virginia’s Division of Mining and Reclamation will require coal companies to electronically submit water discharge monitoring reports

(DMR) to the state’s Hydrological Protection Unit.

The state is mandating eDMR to facilitate a quicker and more efficient flow of information between industry and state regulators. 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. Companies unable to participate in the mandatory eDMR process are required to submit a letter to the Division of Mining and Reclamation explaining why. Those who hold a valid login for ePermitting will not need an additional login to submit eDMRs.

Free e-DMR training sessions have been scheduled for May 6, 13, 27 and June 3, 10, 17 and 24 at the state Department of Environmental Protection headquarters, located at 601 57th St., S.E., in Charleston. Seating is limited to 24. All training sessions will run from 10 a.m. to 3 p.m. 

To reserve a spot for training, please contact Angela Dorsey at (304) 926-0499, ext. 1513 or preferably by email:

Angela.H.Dorsey@wv.gov.

Earthquakes in West Virginia, Arkansas Not Caused by UIC Wells

Natural gas wells drilled horizontally into the Marcellus Shale generally require use of water for fracturing the rock to make it more permeable and produce economic quantities of gas. After fracking, this water often returns from the drill hole laden with dissolved solids that make it unuseful for further fracking. 

Presently, many drillers are recycling the water, using reverse osmosis or some other method.  That leaves a highly concentrated residue that must be disposed somewhere.  Some drillers are putting the frac water into underground injection control (UIC) wells under high pressure. The UIC wells are put far below drinking water aquifers and are sealed off from them, to avoid contamination.

Some question has arisen as to whether the forcing of water into the earth under pressure triggers earthquakes.  Officials in Arkansas think they do, and questions have been raised as to whether disposal activities contributed to earthquakes in BraxtonCounty.  WVU professorTim Carr  says they didn't.

The Statistics Behind Climate Change

If you're like me, even the mention of statistics causes the head to swim and the feet to move toward the  nearest exit. But understanding statistics is a necessity for those who are interested in most scientific issues, including climate change.  The beliefs of those who claim that anthropogenic global warming  is accelerating beyond natural levels rests in large part on the  UN  IPCC's premise that the warming seen over the past half century is statistically significant. Most scientists agree that there has been warming over the last hundreds of years, but there is substantial debate as to whether the warming has increased as a direct result of rising levels of carbon dioxide in the atmosphere. Figuring out whether the record reflects an increase in warming requres evaluating the temperature record to determine whether the temperature increase is statistically significant - i.e., whether there is no reasonable  likelihood that the temperature has remained the same or fallen during that period.

This article from the Wall Street Journal does as good a job as any in explaining in layman's terms how climate data should be analyzed, and why the UN and US study groups looking into the matter may have gotten things wrong. It was written by Douglas Keenan, who was described in this fashion:

Mr. Keenan previously did mathematical research and financial trading on Wall Street and in the City of London; since 1995, he has been studying independently. He supports environmentalism and energy security. Technical details of this essay can be found at http://www.informath.org/media/a41/b8.pdf.

Articles On Shale Gas Potential

The enormous potential of shale gas deposits was the subject of a cover story in TIME and a lengthy piece in the Wall Street Journal by Daniel Yergin.

WVMA To Hold Greenhouse Gas Seminar

The West Virginia Manufacturers Association will be holding a Greenhouse Gas Seminar for those interested in learning about what is happening in West Virginia on this topic. If you'd like to attend, contact Anne Blankenship at acb@ramlaw.com or Patty Barnhart at patty@wvma.com

West Virginia Manufacturers Association

Greenhouse Gas Seminar

April 14, 2011

10 a.m. – 3:00 p.m.

$100 per person

(Includes lunch, breaks and handout materials)

South Charleston Technology Park

 South Charleston, West Virginia

Topics to include:

History and Background of Greenhouse Gas Reporting and Permitting Requirements

Jim Elliot, Esq., Spilman Thomas & Battle, PLLC

Pending Litigation Challenging Federal Greenhouse Gas Regulations

Anne Blankenship, Esq., Robinson & McElwee PLLC

Industry Response to Greenhouse Gas Regulations

Jeff Novotny, American Electric Power

Carbon Capture and Sequestration

Stephanie Timmermeyer, Esq.

Greenhouse Gas Permitting and the Federal Tailoring Rule

William Durham, WV Department of Environmental Protection, Division of Air Quality

Best Available Control Technology for Greenhouse Gases

Joe Kessler, West Virginia Department of Environmental Protection, Division of Air Quality

Update on Congressional Efforts to Halt Greenhouse Gas Regulation

Kelly Goes, State Director, United States Senator Joe Manchin’s Office

Better LIving Through Electricity

We cannot address third world poverty without providing sources of power, and for the foreseeable future, that means fossil fuel power. That is necessarily going to require increased greenhouse gases until renewables become cost-effective.  Until then, as this article points  out, Africans will, quite understandably,  burn trees for charcoal as fast as conservation groups can plant them. As the author says,

You cannot champion the poor, but support anti-energy policies that perpetuate poverty

MACT Rule May Close Coal-Fired Generating Units

Greenhouse gas restrictions have long been seen as the major enemy of coal-fired electric generating units (EGUs), but it may be that there are other forces at work.  One is the lower price of natural gas, arising from the abundant supplies  found in shale formations nationwide.  The other is the Boiler MACT rule (Maximum Achievable Control Technology), which will impose new limits on certain hazardous air pollutants that are emitted by large boilers that burn coal.  The upgrades that will be required to enable some EGUs to meet the Boiler MACT limits will make it more cost-effective to shutter plants  rather than retrofit them with controls.

That's what is happening in North Carolina, where a coal fired EGU will be shut down 6 years ahead of schedule because a gas-fired turbine is coming on line, and the Boiler MACT makes continuing operation of the coal-fired unit infeasible.  The full story is here.