Engage With Grace

I'm happy to pass along a link to the Engage With Grace website, which is trying to get families to talk about end-of-life decisions when they gather during the Thanksgiving holiday. An article in the Boston Globe gives more information about the project. I can tell you from personal experience that these types of conversations don't have to be depressing affairs - they can generate a lot of lively discussion that, at least with my boys, was pretty entertaining. I suppose it's a lot easier to talk about these matters before they become pressing.



I learned about this from my own blawg mentor, Bob Coffield, who operates the best health care blog in the state, and one of the most informative in the country. Check out the hyperlink, he's worth visiting. Here's what he wrote:

Last month I had the opportunity at the Health 2.0 Conference in San Francisco to watch Alexandra Drane announce the Engage With Grace: The One Slide Project. The idea behind the project is to get people to share just ONE slide that helps them and their loved ones talk about having a purposeful end-of-life experience. Alexandra's talk personally touched me because my family went through a similar experience 30 years ago when I was 12 and my mother died at home with cancer in 1978. She had the opportunity to die at home surrounded by her 5 children because both my dad and uncle were her doctors. In the past and today, not all families are given this important choice. The memories I have of my mother's final days 30 years ago are still important to me today. As a health care lawyer who has been involved in the legal aspects of end of life decisions expressing your wishes, knowing the wishes of those who you love and legally documenting them are important.

The Big Turkey Comeback

Here's an interesting take on the recovery of the wild turkey population in America. They recovered from just 30,000 birds to the millions that inhabit forests today, and much of the credit, according to this article, goes to effective game and property management by the federal government, long before the Wild Turkey Federation existed. I can't vouch for the article's accuracy, as the West Virginia DNR gives credit to sportsmen's groups for funding the restocking in West Virginia, but it's a good reminder that it takes coordination by private individuals, interest groups, and state and local governments to manage wildlife successfully.

West Virginia now has over 140,000 wild turkeys. Click here to learn more about the reintroduction of wild turkeys into the Mountain State.

New Storm Water Discharge Guidelines Proposed

One of the largest contributors to stream sedimentation is runoff from construction activities.EPA is seeking comments on its proposed guidelines to control the discharge of pollutants from construction sites. The proposal would require all construction sites to implement erosion and sediment control best management practices to reduce pollutants in stormwater discharges. This proposed rule is projected to reduce the amount of sediment discharged from construction sites by up 27 billion pounds each year.

Controlling water pollution through the NPDES system requires application of 2 types of controls. Dischargers have to meet water quality standards, which are the "safe" levels of pollutants allowed in state waters. The other is technological controls - treatment of the wastewater or runoff in order to reduce pollutants. All industries are expected to meet these technology controls, generally specified in the form of Effluent Limitation Guidelines (ELGs). EPA evaluates industry segments (e.g., steel manufacturing, chemical production, etc.) to determine what types of technological controls are available and appropriate for treating wastewater produced by that segment. As EPA explains it, "[e]ffluent limitations guidelines and performance standards are established by EPA for different industrial categories since the best control technology for one industry is not necessarily the best for another. These guidelines are developed based on the degree of pollutant reduction attainable by an industrial category through the application of control technologies, irrespective of the facility location. Using these factors, similar facilities are regulated in the same manner." U.S. EPA NPDES Permit Writer’s Manual, EPA-833-B-96-003 (December 1996), §5.1.2. Where EPA has not set national ELGs for an industry category or subcategory, technology-based limits are determined on a case-by-case basis by state permit writers and imposed in permits. The proposal by EPA is to develop ELGs for stormwater runoff from construction activities.

Stormwater is more diffuse and harder to capture than wastewater from industrial processes, and EPA generally relies upon best management practices, or BMPs, to control sediment runoff. If the BMPs are in place, the site is deemed to be using the appropriate technology. In this most recent proposal, EPA will require more than the BMPs in certain situations. For certain large sites located in areas of the country with high rainfall intensity and soils with high clay content, stormwater discharges from the construction site would be required to meet a numeric limit on the allowable level of turbidity, which is a measure of sediment in the water. In order to meet the proposed numeric turbidity limit, many sites would need to treat and filter their stormwater discharges.

The current WV construction stormwater permit does not expire until December 4, 2012, at which time the new ELGs will be added to the state permit, in whatever form they are adopted by EPA.

CAFOs of the Sea

Last week EPA finalized its NPDES effluent limitations guidelines and standards rule governing wastewater discharges from Concentrated Animal Feeding Operations (CAFOs). The rule was originally finalized in 2003, was challenged by environmentalists, and portions of it were set aside by the Second Circuit in Waterkeeper Alliance et al. v. EPA, 399 F.3d 486 in 2005. EPA made changes to address the issues that were vacated or remanded by the Court, and last week's final rule is the result.

This article on salmon farming brought to mind that rule. Although salmon farms are not CAFOs, they are attempts to produce healthy protein in a cost-efficient manner, like terrestrial CAFOs. The article, and some of the commenters, point out some of the problems that are posed by large-scale farming operations - the concentration of pollution, the use of antibiotics, and the possibility of disease spreading to wild stocks. There is a place for the government to step in and regulate these concerns. But these problems should be weighed against the growing demand for fish protein, and the likelihood that commercial fishing has almost depleted tuna and other high-end fish stocks. Large scale farming, properly regulated, is a middle course that can relieve some pressure on wild stocks until they can rebound.

Mine and Industrial Asccident Rapid Response System Update

For those of you who are following the Governor's decision to expand the immediate reporting of accidents (presently required of mining facilities) to industrial plants in West Virginia, Anne Blankenship, one of my colleagues at Robinson & McElwee, put together the following update. If you would like to know more, particularly the types of facilities likely to be reporting, give her a call at 304 347-8344 or contact her at acb@ramlaw.com if you have any questions.

During the 2006 West Virginia Legislative Session, Senate Bill No. 247 was introduced by the Governor and successfully passed, creating the Mine and Industrial Accident Rapid Response System, W.Va. Code §15-5B-1 et seq. (“MIARRS”). Among other requirements, the new legislation set forth notification requirements in the event of an accident in or about any mine. Although the express language of the legislation included the industrial sector, it only included specific performance requirements for the mining sector and required that the state Division of Homeland Security conduct a study to determine the feasibility of providing emergency coverage to “other industrial, manufacturing, chemical or other emergencies” through MIARRS. The results of that study, issued on November 1, 2006, found that these types of emergencies are “best left in the current system of local emergency call systems.” Regulations to implement MIARRS were promulgated shortly thereafter and, after considering the comments of the West Virginia Manufacturers Association, the West Virginia Oil and Natural Gas Association and other industry trade associations, the Division of Homeland Security opted to exclude non-mining industries from the MIARRS regulation (170 CSR 1). Recently, the notion of including non-mining industries in MIARRS has resurfaced and it is anticipated that the Governor will propose legislation in the upcoming 2009 West Virginia Legislative Session that will require other industry sectors to report accidents. The stated objectives of such reporting would be to provide the prompt and accurate reporting of an incident that may require response resources beyond the capability of the facility; to ensure that the appropriate mitigation resources respond to the event; and to ensure that adequate and accurate information is available to the responders and to the public. The details of any such legislation are still being worked on at this time. However, it is anticipated that the industrial community, including manufacturers in the chemical industry, would be expected to report.

Making Biodiesel in West Virginia

An article in the Sunday Gazette -Mail from Nov. 16 reports on 2 different - very different - organizations making biodiesel in West Virginia. AC&S is a corporation making biodiesel as a sideline to its other industrial activities, like cleaning railcars. It is supplying several school districts with biodiesel in the area. They have a reported capacity of 5 million gallons per year. This is the very sort of home-grown industry that the state should be doing everything it can to promote. It's great to see entrepreneurs doing well in the Kanawha Valley.

For his part, Zoe of the Zendiks (a local branch of a national art commune I knew nothing of until I read this article) has done the same sort of biodiesel manufacturing on a smaller scale. He learned everything the hard way, like thousands of basement tinkerers before him. He's evidently offering to share his knowledge with others, and will be offering classes. I went online to try to find out when the classes might be offered, and because I was curious about the organization, but I was blocked by the firm's computer security/porn blocking system. I don't know why, unless the art they produce registers as something too salacious for attorneys' eyes.

The Mid Atlantic Technology, Research and Innovation Center (MATRIC), a local think tank that is quietly doing tremendous things with less financial support than the coffee and doughnut budgets for Research Triangle organizations, is also working on a biofuel project, among many others. Check them out.

New Concentrated Animal Feedlot Operation Rule Announced

There aren't many, if any, concentrated animal feedlot operations (CAFO) in West Virginia, but those that are produce large quantities of manure that can result in pollution if not properly managed. The animals at a CAFO (poultry houses, large hog operations, cattle feedlots) often produce waste that is the equivalent of a small city. Getting rid of it all is often difficult because, although it is useful as a fertilizer, it can quickly overload the area where it can be economically hauled. It then tends to pile up, and leach or run off into nearby streams, causing nutrient pollution that is blamed for a host of troubles, primarily the Chesapeake Bay decline and Gulf of Mexico hypoxic area (along with agricultural and domestic lawn fertilizers). To address the problem, EPA has adopted new regulations for CAFOs. I'm reprinting their summary of the rule below; a link at the end will provide even more information.


) New Requirements for Controlling Manure, Wastewater from Large Animal Feeding Operations EPA has finalized a rule helping to protect the nation's water quality by requiring concentrated animal feeding operations (CAFOs) to safely manage manure. EPA estimates CAFO regulations will prevent 56 million pounds of phosphorus, 110 million pounds of nitrogen, and 2 billion pounds of sediment from entering streams, lakes, and other waters annually.

"EPA's new regulation of animal feedlots sets a strong national standard for pollution prevention and environmental protection, while maintaining our country's economic and agricultural competitiveness," said Assistant Administrator for Water Benjamin H. Grumbles. "This clean water rule strengthens environmental safeguards by embracing a zero discharge standard and requiring site-specific management plans to prevent runoff of excess nutrients into our nation?s waters."

This is the first time EPA has required a nutrient management plan (NMP) for manure to be submitted as part of a CAFO's Clean Water Act permit application. Manure contains the nutrients nitrogen and phosphorus, which, when not managed properly on agricultural land, can pollute nearby streams, lakes, and other waters.

Previous rules required a CAFO operator to use an NMP for controlling manure, but the regulation builds on that by requiring the NMP to be submitted with the permit application. The plan will be reviewed by the permitting authority and conditions based on it will be incorporated as enforceable terms of the permit. The proposed NMP and permit will be available for public review and comment before going final.

The regulation also requires that an owner or operator of a CAFO that actually discharges to streams, lakes, and other waters must apply for a permit under the Clean Water Act. If a farmer designs, constructs, operates and maintains their facility such that a discharge will occur, a permit is needed. EPA is also providing an opportunity for CAFO operators who do not discharge or propose to discharge to show their commitment to pollution prevention by obtaining certification as zero dischargers.

In addition, the final rule includes technical clarifications regarding water quality-based effluent limitations and use of best management practices to meet zero discharge requirements, as well as affirming the 2003 rule requirement for reducing fecal coliform through the use of best conventional technology.

EPA worked closely with the U.S. Department of Agriculture during the development of the rule and will work closely with states during implementation. The rule deadline for newly defined facilities to apply for permits is February 27, 2009.

EPA has been regulating CAFOs for more than 30 years. The final rule responds to a February 2005 federal court decision that upheld most of the agency's 2003 rule, but directed further action or clarification on some portions.

Information on the concentrated animal feeding operation rule: http://www.epa.gov/npdes/caforule

Water Quality Standards Protected in West Virginia

Opponents of development, and of mountaintop mining, often decry West Virginia's alleged failure to comply with federal water quality standards. But take a look at this article from the Columbia Tribune, which highlights a crucial difference between some states and West Virginia. In Missouri, evidently, not all streams are protected by all criteria necessary to protect beneficial uses. They are only protected by narrative criteria, or "free-froms", that require streams to be free from floating scum, odors, deposits or sludge banks, visible color, toxic concentrations of chemicals, and other qualitative and aesthetic concerns. While those limitations also apply in West Virginia, they are not the only water quality protections that are in place.

For those new to water quality standards, numeric criteria can be thought of as the "safe levels" that protect the uses that are assigned to the stream. The "uses" are just what they sound like - the use of a stream for recreation (e.g. wading or boating), or by aquatic life (e.g. fish or invertebrates). If a stream is assigned an aquatic life use, numeric criteria are to be set at levels that, if they are not exceeded, will not kill aquatic life or interfere with reproduction. For example, in West Virginia total mercury levels cannot exceed 2.4 micrograms per liter (ug/l) to protect aquatic life, but the limit for protection of human health is .14 ug/l if the stream is a public water supply. EPA has some good background information on water quality standards that explains this.

In West Virginia, every stream is assigned at least 2 uses - protection of aquatic life and water contact recreation, as required by Section 101 of the Clean Water Act. See section 6.1 of West Virginia's water quality standards. Unlike Missouri, you never have a situation where a stream is without numeric criteria assigned to it.