WV Environmental Law

Learn About Oil and Gas Drilling, Fracking

2010-01-07T06:21:00.000-08:00

Questions have been raised about drilling for Marcellus Shale gas and the potential for contamination of water supplies as a result of the chemcials used to fracture the gas-producing seams. Energy In Depth offers a short video of how a well is drilled and fracked, and resources explaining why drilled wells are not a source of ground water contamination. The video is of a traditional (not horizontal) well, but the concepts are the same.

West Virginia DEP Takes New Approach to Mountaintop Mining

2010-01-07T05:33:00.000-08:00

The West Virginia DEP Mining Office has experienced more than its share of frustration over the past year. EPA has held up Clean Water Act Section 404 permits (that were issued to mountaintop mines by the Corps of Engineeers and water quality-certified by the DEP) on the grounds that the mining plans did not adequately consider the ecological and environmental effects of the mines. The DEP was understandably nonplussed by this new approach, especially the silence of EPA when DEP asked what sorts of mountaintop mining plans would be approved by EPA. A lot of time has been spent by the DEP trying to figure out what EPA wants, and I assume that is due to the fact that EPA is still trying to figure out exactly what it wants.

It appears that the WV DEP has changed tack and is going to accept that only more limited mining plans will be accepted in the future. In a report by Ken Ward of the Charleston Gazette today, Randy Huffman, Secretary of the DEP, said he is going to develop new rules for the issuance of permits that include valley fills. While EPA has not, to my knowledge, issued clear guidance as to what it expects for valley fills, the DEP has had enough experience working with EPA over the past year to learn what sorts of projects EPA is likely to approve and what it will not. As Director Huffman says, it makes no sense to issue permits that are consistent with state and federal laws, if they will only be rejected by EPA applying a different interpretation of those laws.

Expect mountaintop mines that have smaller footprints and that greatly reduce the amount of fill going into streams. Also, my guess is that you'll see more insistence on a return to aproximate original contour, or AOC, which means there will be less flat land left for future development. That's unfortunate, because despite what some may think, there's still no shortage of mountains in the Mountain State, and there is still a need for flat land on which to develop a post coal economy in the southern coalfields.

Interior Department Reconsiders Stream Buffer Zone Rule

2010-01-06T09:31:00.000-08:00

In the ongoing fight over surface coal mining, most of the attention has been directed to the section 404 permits that are issued by the Corps of Engineers, and subject to review by EPA. If any streams are going to be filled, a 404 permit is going to be required. But there is also a provision under the Surface Mining Control and Reclamation Act (SMCRA)called the Stream Buffer Zone, or SBZ, that limits the amount and location of fill material that can be placed in or near streams. The Fourth Circuit has already ruled that SMCRA contemplates placement of some excess spoil in waters of the United States, in Kentuckians for the Commonwealth, Inc v. Rivenburgh, 317 F.3d 425, 442-443 (4th Cir. 2003) and the Interior Department published a rule in 2008, toward the close of the Bush Administration, defining the SBZ in a manner favorable to mining. Several environmental groups challenged the rule, and the Interior Department (now under a new administration) asked the Court to vacate the rule. The court refused to do so, saying that to vacate the rule at the request of the Interior Department would effectively allow it to bypass the Administrative Procedure Act requirements for withdrawing or amending a rule.

Interior has now proposed revising the SBZ, and has identified 7 options for change. They can be found in the Federal Register notice, starting at 74 Federal Register 62663 (November 30, 2009). The preamble does a great job of providing an understandable history of the SBZ. The time for public comment has passed, but you may want to take a look if you're interested in mountaintop mining issues. Interior's summary of its action follows.

SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement (OSM), are seeking comments on our intention to revise our regulations concerning the conduct of mining activities in or near streams. We have determined that revision of the stream buffer zone (SBZ) rule published on December 12, 2008, is necessary to implement the interagency action plan that the Administration has developed to significantly reduce the harmful environmental consequences of surface coal mining operations in Appalachia, while ensuring that future mining remains consistent with Federal law. In this notice, we describe and seek comment on the alternatives that we are considering for revision of the SBZ rule. In addition, we request your help in identifying significant issues, studies, and specific alternatives that we should consider in the SEIS for this rulemaking initiative. The June 11, 2009, memorandum of understanding (MOU) implementing the interagency action plan also calls for us to consider whether revisions to other OSM regulations (including, at a minimum, approximate original contour requirements) are needed to better protect the environment and the public from the impacts of Appalachian surface coal mining. We have identified addition of a definition of ``material damage to the hydrologic balance'' as one such possibility. We invite comment on that option as well as whether there are other OSM regulations that could be revised to implement this provision of the MOU.

EPA Approves More Restrictive Hobet 45 Permit, Wants More Time for Spruce 1 Permit

2010-01-06T05:50:00.000-08:00

EPA announced that it is approving the Hobet 45 mine Section 404 permit, albeit with additional conditions the mining company agreed to in order to continue in operation. EPA also and the company asked a federal court for more time to reach a resolution on the Spruce 1 mine, which I interpret as meaning that EPA wanting more time to twist arms and further restrict the mining footprint. The press release follows.

WASHINGTON – The U.S. Environmental Protection Agency today announced a path forward on two coal mining operations in West Virginia.

EPA is informing the U.S. Army Corps of Engineers that it supports issuing a Clean Water Act permit for the Hobet 45 mine in Lincoln County, operated by Hobet Mining, LLC. EPA made this decision after extensive discussions between EPA and the company resulted in additional significant protections against environmental impacts.

In a second action, the Federal District Court in Southern West Virginia will extend the court-established deadline to respond to the company's earlier request to end the litigation on the proposed Spruce No. 1 mine in Logan County. EPA and the mining operator, Mingo Logan Mining Company, a subsidiary of Arch Coal, agreed to ask for the extension in order to continue discussions to determine if a revised mining plan can be developed that will comply with the Clean Water Act. After close study, EPA determined that the proposed mine raised significant environmental and water quality concerns.

“These are important examples of EPA’s work to bring clarity to this process. Our role, along with the Army Corps of Engineers, is to ensure that mining companies avoid environmental degradation and protect water quality so that Appalachian communities don’t have to choose between jobs and their health,” said EPA Administrator Lisa P. Jackson. “Working closely with mining companies, our federal and state partners, and the public, our goal is to ensure Americans living in coal country are protected from environmental, health and economic damage.”

In a letter sent today, EPA advised the Army Corps of Engineers that, as a result of changes agreed to by Hobet Mining LLC after discussions with EPA, the Hobet 45 mine now meets the requirements of the Clean Water Act, clearing the way for a final permit. EPA worked closely with Hobet Mining LLC and the Corps to redesign the proposed Hobet 45 mine to eliminate nearly 50 percent of stream impacts, reduce anticipated stream contamination, and protect public health. The Hobet 45 operation is expected to employ 460 United Mine Workers of America coal miners.

EPA’s request to extend the court deadline for the Spruce No. 1 mine will allow EPA, the mining company, and the Corps to continue their coordination until early March 2010. In the meantime, no additional mining operations may occur at the site until EPA determines the project complies with the Clean Water Act. EPA initiated a process to restrict or prohibit mining activity based on its conclusion that Spruce No. 1 mine, one of the largest mountaintop removal mines proposed in the Appalachian coalfields, presents significant environmental and water quality concerns. The agency made clear it is willing to continue communications with the Mingo Logan Company to amend the project so that it may comply with the nation’s clean water laws. If an agreement with the company can not be reached, EPA may take the next step in the process to prohibit or restrict mining activity under section 404(c) of the Clean Water Act.

Appalachian coal mining has buried an estimated 2,000 miles of streams in states including West Virginia. Scientific studies have increasingly identified significant water quality problems below surface coal mining operations that can contaminate surface waters for hundreds of years. Data from coalfield communities also indicate that coal mining is responsible for causing fish kills and contaminating fish and wildlife. EPA has committed to use its Clean Water Act regulatory authorities to reduce environmental and water quality impacts associated with surface coal mining.

More on the Hobet 45 Mine:

As originally proposed, the Hobet 45 mine would have buried nearly six miles of headwater streams and contaminated downstream waters that now support healthy streamlife and are used by local residents for fishing and swimming. EPA recommended key changes to the mine plan in consultation with Hobet Mining and the Corps that will:

Reduce stream impacts by more than 16,000 linear feet;
Require that contaminated mine drainage be directed away from surface waters;
Ensure more effective compensation for environmental losses;
Establish an adaptive management plan to further protect water quality; and
Protect highly productive streams on the mine site.

The Hobet 45 mine is one of 79 projects identified by EPA as raising environmental concerns under a special enhanced coordination process with the Corps to make decisions on a large group of permits that were delayed for several years because of litigation.

More on the Spruce No. 1 Mine:

The Spruce No. 1 mine is one of the largest mountaintop removal mines ever proposed in the Appalachian coalfields and would clear more than 2,200 acres of forestlands, bury more than seven miles of headwater streams, and further contaminate downstream waters already heavily impacted by previous mining activities. EPA is concerned that the Spruce No. 1 mine may:

Bury 7.5 miles of healthy headwater streams under 6 valley fills;
Contaminate downstream surface waters with pollutants from the mine including selenium, conductivity, iron, and aluminum – pollutants that would continue to drain into streams long after the mine is closed;
Cause additional harm to the Little Coal River watershed already significantly impacted by previous mining activities – 73 percent of streams are already impaired by mining;
Deforest 2,200 acres of mature, productive forestlands; and
Impact human health by contributing to water quality degradation and contaminating fish and wildlife.

The Spruce No. 1 Mine has been delayed for more than 10 years by citizen suits alleging the mine does not meet the requirements of federal laws. The current Clean Water Act permit for Spruce No. 1 has been held up in federal court since it was issued in 2007.

More information on the Hobet letter: http://www.epa.gov/owow/wetlands/pdf/Hobet_Jan_5_2010_letter.pdf

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West Virginia To Help Clean the Chesapeake Bay

2009-12-29T09:33:00.000-08:00

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

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

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

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

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

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

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

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

West Virginia DEP to Allow Mining Discharges to Dunkard Creek

2009-12-21T13:17:00.000-08:00

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

West Virginia DEP Issues Order to Dunkard Creek Mining Facility

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

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

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

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

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

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

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

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

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

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

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

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

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

West Virginia DHHR Releases Sport Fish Advisory

2009-12-14T04:44:00.001-08:00

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

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

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

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

West Virginia Wind Project Put On Hold By District Court Ruling

2009-12-11T05:34:00.000-08:00

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

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

Geothermal Power and Earthquakes

2009-12-11T05:16:00.000-08:00

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

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

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

2009-12-11T05:00:00.001-08:00

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

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

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

EPA Shares Toxics Release Inventory Data for 2008

2009-12-08T12:04:00.000-08:00

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

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

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

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

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

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

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

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

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

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

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

Cap and Trade Debate At The University of Charleston

2009-12-08T04:49:00.000-08:00

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

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

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

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

West Virginia, Federal Greenhouse Gas Reporting Rules in Conflict

2009-12-06T10:02:00.000-08:00

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

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

2009-12-04T10:32:00.000-08:00

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

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

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

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

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

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

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

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

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

Cheating at the Game of Climate Change

2009-12-01T05:00:00.000-08:00

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

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

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

2009-11-30T09:24:00.000-08:00

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

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

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

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

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

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

Greenhouse Gas Reporting Rule Published

2009-11-30T07:16:00.001-08:00

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

The final rule is effective on December 29, 2009.

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

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

New NESHAPs Adopted for Area Sources

2009-11-30T07:13:00.000-08:00

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

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

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

This final rule is effective on October 29, 2009.

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

More on the Marcellus Shale in West Virginia

2009-11-30T05:13:00.000-08:00

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

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

Sustainable Development, One Inventor at a Time

2009-11-29T09:28:00.000-08:00

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

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

Surprising End to Landmark Public Domain Case

2009-11-23T04:53:00.001-08:00

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

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

Comparison of House and Senate Cap and Trade Legislation

2009-11-20T10:52:00.001-08:00

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

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

Cap and Trade Debate Set for December 7 in Charleston

2009-11-19T13:42:00.000-08:00

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

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

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

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

2009-11-17T10:09:00.000-08:00

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

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

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

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

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

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

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

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

EPA Finds No Imminent Threat at Sporn Plant Coal Ash Impoundment

2009-11-17T04:50:00.000-08:00

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

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