Shell Launches Preemptive Attack On Environmental Groups

Shell has filed a declaratory judgment action that names a number of environmental groups that are expected to challenge its plans for drilling in the Alaskan arctic.   Shell expects opposition to its spill response plan, which will  have to undergo public review, and wants to deal with that now rather than later. This from Alaska Public Radio:

Shell Alaska has taken an unusual step in asking a federal court Wednesday for a declaratory judgment on their Arctic spill response plan that was approved by the department of Interior in February. Shell is seeking this judgment against a number of environmental and conservation groups in an effort to end run the litigation that will likely challenge the process that was used to approve their plan. Shell Alaska spokesman Curtis Smith says the company wants a judge to consider sooner rather than later the merits of the spill response plan approval process.

Lots of us will be watching this with interest. Ordinarily, to get an environmental permit you file an application, there is public comment, and sometimes a legal challenge thereafter.  The legal challenge occasionally alleges that the process by which the permit was granted was improperly conducted.  Evidently Shell is trying to short circuit that particular argument, although it is unclear to me whether that would work. It would seem to me that the other appeal issues could string out the permit-issuing process to the same degree.  If it works, though, expect others to try the same sort of pre-emptive action.

Here is Shell's explanation of what it is doing.

Welch Settles CSO Violations Lawsuit

I've heard people complain about the increase in sewer rates in Charleston in the last few years, as the city upgrades its system to better respond to wet weather events (i.e., heavy rains that run into  the city's sewer system, overwhelming the treatment plant), but the money is needed to prevent combined sewer overflows, or CSOs. When  there's too much precipitation for the sewage system to handle, the water is not sent to the treatment plant, but runs straight through the treatment plant, carrying raw sewage with it.  That was the problem in Welch, as discussed below in an EPA press release.  It's not clear exactly how Welch will be upgrading its treatment system, although presumably it will develop more storage.  That's what Washington DC will be doing, digging huge tunnels to store storm water until after the rainfall event, when it can be gradually introduced into the treatment system.
Date: 03/01/2012

Subject: EPA News Release (Region 3): Welch, W.Va. Settles Clean Water Act Violations

Contact: EPA: David Sternberg, 215-814-5548 sternberg.david@epa.gov

WVDEP: Kathy Cosco 304-926-0499 ext. 1331 kathy.cosco@wv.gov

Welch, W.Va. Settles Clean Water Act Violations

(PHILADELPHIA – March 1, 2012) The U.S. Environmental Protection Agency and West Virginia announced today that they have settled violations of the Clean Water Act involving sewage overflows in Welch, W.Va.

Under the settlement filed by the U.S. Justice Department in federal district court, the City of Welch has agreed to implement a long term control plan to eliminate combined sewer overflows (CSOs) at an estimated cost of $16 to $23 million. As part of this plan, Welch will completely separate its sanitary wastewater and storm sewers.

In addition, Welch will develop and implement a plan for upgrading its treatment plant and monitoring system. Once implemented, the steps that Welch is required to take under this agreement will eliminate CSOs resulting in the discharge of approximately 400,000 gallons of raw sewage annually. Welch will also pay a $5,000 penalty for past violations, split between the U.S. and West Virginia.

The settlement announced today is the third addressing West Virginia municipalities' wastewater violations in recent months. EPA and West Virginia also settled a CSO case with Elkins, W.Va. in October 2011 and a sanitary sewer overflow case with Fort Gay, W.Va. in January 2012.

Untreated sewage contains many types of organisms which can cause illness. People coming in contact with these organisms can suffer adverse health effects ranging from minor ailments such as sore throats, stomach cramps and diarrhea, to life-threatening illnesses such as cholera, dysentery, infectious hepatitis and severe gastroenteritis. Children, the elderly, people with weakened immune systems and pregnant women are more at risk of illness.

The CSO complaints, filed with the settlements, alleged numerous overflows from the municipalities' combined sewer systems. These sewer systems are designed to collect and convey rainwater runoff, domestic sewage, and industrial wastewater in the same pipe to a sewage treatment plant, where it is treated before discharge to a water body.

However, especially during periods of heavy rainfall or snowmelt, the water volume may exceed the capacity of the sewer system or treatment plant -- causing discharges of untreated wastewater directly to nearby waterways. These CSOs contain not only stormwater but also untreated human and industrial waste, toxic materials, and debris.

For more information on CSOs: http://cfpub.epa.gov/npdes/home.cfm?program_id=5

EPA Proposes No Change to GHG Tailoring Rule Thresholds

What follows below is a press release from EPA, announcing that it is not going to change the greenhouse gas (GHG) thresholds for requiring a major source permit.  Under the Clean Air Act, permits should be required for those sources of greater than 100 or 250 (depending on industry category) tons of GHGs per year.  EPA, realizing that this would result in permitting tens of thousands of new sources, set higher thresholds, so that only the largest emitters will be permitted. EPA had been considering going to lower levels, though higher than the 100/250 tons , but evidently decided not to do that.

There are a number of lawsuits challenging the Tailoring Rule.  It will be interesting to see whether EPA will be allowed to ignore the terms of the CAA,  on the grounds that complying with the law would result in an unmanageable situation.

WASHINGTON –The U.S. Environmental Protection Agency (EPA) is proposing not to change the greenhouse gas (GHG) permitting thresholds for the Prevention of Significant Deterioration (PSD) and Title V Operating Permit programs. Today’s proposal is part of EPA’s common-sense, phased-in approach to GHG permitting under the Clean Air Act. EPA is also proposing steps that would streamline the permitting process for large emitters already covered by the agency’s program, including sources that account for nearly 70 percent of the total GHG pollution from stationary sources.

EPA’s proposal is consistent with its phased-in approach, announced in 2010, to “tailor” the requirements of the Clean Air Act to ensure that industrial facilities and state governments have the tools they need to minimize GHG emissions and that only the largest emitters need permits.

After consultation with states and evaluating the process, EPA believes that the current approach is working well, and that state permitting authorities are currently managing PSD permitting requests. Therefore, EPA has proposed not to include additional, smaller sources in the permitting program at this time.

EPAs GHG permitting program follows the same Clean Air Act process that states and industry have followed for decades to help ensure that new or modified facilities are meeting requirements to protect air quality and public health from harmful pollutants. As of December 1, 2011, EPA and state permitting authorities have issued 18 PSD permits addressing GHG emissions. These permits have required new facilities, and existing facilities that have chosen to make major modifications, to implement energy efficiency measures to reduce their GHG emissions.
The GHG Tailoring Rule would continue to address a group of six greenhouse gases: carbon dioxide (CO2), methane (CH4), nitrous oxide (N2O), hydrofluorocarbons (HFCs), perfluorocarbons (PFCs), and sulfur hexafluoride (SF6). The PSD permitting program protects air quality and allows economic growth by requiring facilities that trigger PSD to limit GHG emissions in a cost effective way. An operating permit lists all of a facility’s Clean Air Act emissions control requirements and ensures adequate monitoring, recordkeeping and reporting. The operating permit program allows an opportunity for public involvement and to improve compliance.

Under the approach maintained in this proposal, new facilities with GHG emissions of at least 100,000 tons per year (tpy) carbon dioxide equivalent (CO2e) continue to be required to obtain PSD permits. Existing facilities that emit 100,000 tpy of CO2e and make changes increasing the GHG emissions by at least 75,000 tpy CO2e, must also obtain PSD permits. Facilities that must obtain a PSD permit, to include other regulated pollutants, must also address GHG emission increases of 75,000 tpy or more of CO2e. New and existing sources with GHG emissions above 100,000 tpy CO2e must also obtain operating permits.
EPA will accept comments on this proposal for 45 days after it is published in the Federal Register. A public hearing will be held on March 20, 2012, in Arlington, Virginia to listen to public comment about the proposal.
More information: http://www.epa.gov/nsr/

Supreme Court Muddies Navigable Waters

On February 22 the US Supreme Court issued a decision  in Montana PPL v. Montana, another in a series of cases that only adds to the confusion of those of us with an interest in understanding "navigable waters", which are the basis for Clean Water Act jurisdiction.  The case involved an attempt by the State of Montana to assess rent to Montana PPL, a utility with hydrolelectric facilities that occupy portions of the Missouri, Madison and Clark Fork Rivers.  The State argued that the hydro facilities were located in part on stream beds that are state property and as such should have been paying rent.   The Court concluded that the areas where the hydroelectric plants were located were not navigable, and  Montana was not the owner of the stream beds.

I follow navigable waters cases because, in theory, they help to flesh out the extent of Clean Water Act jurisdiction.  However, each case only seems to make the term "navigable waters" a little more difficult to interpret. At one point, the Court seems to be suggesting that this case will be useful in understanding Clean Water Act jurisdiction limits, as it describes the Daniel Ball method of determining jurisdiction, and notes that it was applied in Rapanos, the most recent elucidation of the reach of the Clean Water Act:

The Daniel Ball formulation has been invoked in considering the navigability of waters for purposes of assessing federal regulatory authority under the Constitution, and the application of specific federal statutes, as to the waters and their beds. See, e.g., ibid.; The Montello, 20 Wall. 430, 439 (1874); United States v. Appalachian Elec. Power Co., 311 U. S. 377, and n. 21 (1940) (Federal Power Act); Rapanos v. United States, 547 U. S. 715–731 (2006) (plurality opinion) (Clean Water Act); id., at 761 (Kennedy, J., concurring in judgment) (same). It has been used as well to determine questions of title to water beds under the equal-footing doctrine. See Utah, supra, at 76; Oklahoma v. Texas, 258 U. S. 574, 586 (1922) ; Holt State Bank, supra, at 56. It should be noted, however, that the test for navigability is not applied in the same way in these distinct types of cases.

Ah, note that last sentence, "the test for navigability is not applied in the same way in these distinct types of cases."  A little further on, the Court gives us some idea of how the tests of navigability can differ, depending on the context:  

In reaching its conclusion that the necessity of portage does not undermine navigability, the Montana Supreme Court misapplied this Court’s decision in The Montello, 20 Wall. 430. See 355 Mont., at 438, 229 P. 3d, at 446. The consideration of portage in The Montello was for a different purpose. The Court did not seek to determine whether the river in question was navigable for title purposes but instead whether it was navigable for purposes of determining whether boats upon it could be regulated by the Federal Government. 20 Wall., at 439, 445. The primary focus in The Montello was not upon navigability in fact but upon whether the river was a “navigable water of the United States.” Id., at 439, 443. The latter inquiry is doctrinally distinct. It turns upon whether the river “forms by itself, or by its connection with other waters, a continued highway over which commerce is, or may be, carried with other States or foreign countries in the customary modes in which such commerce is conducted by water.” Id., at 439 (citing The Daniel Ball, 10 Wall. 557). 

So for purposes of establishing Montana's or the U.S.'s title to the river beds, these Montana rivers were not navigable, but for purposes of the United States asserting jurisdiction  to the river under the Commerce Clause (and under the CWA?), the rivers are or may be navigable.

I'll be interested in seeing the take of CWA scholars as they review this decision, and what they glean from it.

"Frenzied Pursuit Of Decarbonization At Any Cost"

  There has been a great series of op-eds in the Wall Street Journal regarding the seriousness of man-made climate change. The most recent piece by Claude Allegre and about a dozen other highly-regarded scientists and engineers was in the WSJ on  February 21.   This final paragraph sums up their position nicely:

The computer-model predictions of alarming global warming have seriously exaggerated the warming by CO2 and have underestimated other causes. Since CO2 is not a pollutant but a substantial benefit to agriculture, and since its warming potential has been greatly exaggerated, it is time for the world to rethink its frenzied pursuit of decarbonization at any cost.

If you visit the Wall Street Journal article that's in this post, you can find links to the original op-ed, and the counter opinions that were published by the Journal.

Hawks Nest Documentary

In the early 1930's hundreds of men, a large number of them black, and almost all of them poor, died of silicosis building the Hawks Nest Tunnel.  It's no secret in West Virginia, but it's not well-known outside the state.  Now a documentary film maker, Mari-Lynn Evans, is trying to change that, as reported in the Register-Herald. I heard her talk to the Vandalia Rotary Club and showed bits and pieces of the documentary, which is still being finished.  It looks like it will be a very compelling film.

 Here's an article from the WV Encyclopedia about the Hawks Nest tunnel and its aftermath. 

Corps of Engineers Reissues Nationwide Permits

The Army Corps of Engineers has announced the renewal of the Clean Water Act Section 404 Nationwide Permits (NWPs).   These have not yet been published in the Federal Register, but are available for review at   http://www.usace.army.mil/Missions/CivilWorks/RegulatoryProgramandPermits/NationwidePermits.aspx

Here is a short overview from Dredging Today.  Most of the previous NWPs are unchanged. There are 2 new NWPs, for certain renewable energy projects. Perhaps of most interest to West Virginians in the mining industry is the decision to reissue the previously-suspended  NWP 21, which allowed small fills associated with surface mining.  Ken Ward reports on that  here.  NWP 21 fills can't be more than a half acre or longer than 300 feet, unless the Corps' district engineer waives those limits and allows larger fills that he determines will have minimal adverse effects.