West Virginia Proposes Changes to Storm Water Permit

The WV Department of Environmental Protection has proposed changes in its Multi-Sector Storm Water general permit. Much storm water permitting is done for construction activities, because silt runoff from land disturbance is one of the biggest contributors to water pollution. The Multi-Sector general permit applies to runoff from industrial facilities, where precipitation could fall on, and carry off, pollutants from uncovered waste piles, raw material piles, and the like. The permit is often issued to small and medium-sized facilities, because larger facilities are covered by individual permits that have storm water requirements written into them, along with process water limits. The Multi-Sector general permit is important even to these larger facilities, though, because the DEP permit writers often impose the requirements of the Multi-Sector general permit in the individual permits of the larger facilities.

More Aquaculture Development in the Gulf of Mexico

West Virginia's aquaculture is mostly limited to growing trout and other game fish for stocking in state streams, and some commercial facilities that use mine water to grow cold-water fish for sale. We don't have a coastline, along the Gulf or elsewhere (unless you count Myrtle Beach, SC), but I thought this article by Jessica Ferrell of the Marten Law Group was an interesting summary of the law that will apply to what is sure to be a growing industry - large scale commercial fish farming in the Gulf of Mexico.

Industry Group Seeks Changes in TSCA

Industry is sometimes accused of avoiding regulation at all costs. That isn't necessarily the case. The New York Times reports that a representative of the American Chemistry Council, which represents many chemical manufacturers, is seeking a revamp of the Toxic Substances Control Act, or TSCA. That is an environmental statute that governs the production and licensing of the many man-made chemicals that are necessary to modern society. The ACC is hoping that an updating of TSCA will restore faith in the protections offered to American consumers by the Act.

WV Supreme Court Rules in Oil & Gas Royalty Case

This blog is about energy law as much as environmental law, and I have been deficient in reporting on energy-related state court cases. To rectify that, I'll refer you to Drake v. Waco Oil and Gas Company, Inc., involving an unusual royalty situation. A brother and sister both believed that the sister owned a piece of property that was actually titled in both their names. The brother negotiated a lease of the oil and gas for the sister, with the sister getting the standard one-eighth interest in the value of the gas produced from her property. (The share of the value of the gas that is paid to the gas owner is referred to as the royalty.) When the brother (actually, a potential gas producer found the error when doing a title search) discovered he owned half the property, he sued Waco for the difference between the value of the gas produced, less the cost of producing it - in other words, the entire profit from the well. However, the Court agreed with Waco that the fact the brother had been involved in the negotiations changed the equities, and it was fair that he should get only his part of the 1/8 royalty he negotiated for his sister.

The case was before the Court on a certified question. For you non lawyers, that's a situation that sometimes arises when the facts of a case are not in dispute, and there is no clear guidance from statutes or past decisions of the Supreme Court as to how the law should apply to those facts. When that happens, the Circuit Court can frame a question to the Supreme Court that asks what the law is, assuming certain facts, to save the time that would be lost by deciding the case and then having it go up on appeal.

The case is instructive in two ways - it shows that the Court can redraft a certified question from a lower court to pose the question that it believes should have been asked (or that it wants to answer) and it is an example of the court trying to find the equities rather than strictly follow precedents. In some cases, courts that try to do justice rather than follow the law end up doing neither. In this case, I think they got it right.

West Virginia Watershed Network To Meet March 17

Attached is a notice I received from the West Virginia Watershed Network. If you are interested in water quality issues and sampling programs, and how the accumulated data is used, this is a great event to attend.

The West Virginia Watershed Network (WVWN) is planning to hold its semi-annual meeting in Morgantown on Tuesday, March 17, 2009, from 10:00 a.m. to 3:45 p.m. The meeting will be conducted as a forum where speakers from multiple agencies will provide information about ongoing statewide water sampling programs with emphasis on purpose, data collection process, data storage and access. The Forum agenda is available on the WVWN web site at: http://www.wvca.us/wvwn/wvwn_events.cfm. (Note.....notification of changes to or cancellation of the forum will be posted on this website, so please check for updates before traveling to the event.)

The meeting is open to all interested persons at no cost. The meeting will be held at the National Research Center for Coal and Energy (NRCCE) on Evansdale Campus at West Virginia University in room 101 AB. For directions to the NRCCE go to: http://www.nrcce.wvu.edu/directions.cfm *Note... Lunch is brown bag. Free parking is available at the WVU Coliseum, where a shuttle bus runs every ten minutes. See the above website for the location of paid parking near the NRCCE building, however it is our understanding, if your vehicle has state or federal license you can park anywhere at no cost.

*Contacts: Rick Buckley OSM 304-347-7162 x3019 Jim Laine WVDEP/DWWM 304-926-0499 x1061 Clairene Bailey OSM 304-347-7158 "West Virginia Forum on Statewide Water Sampling Programs" Tuesday, March 17, 2008 10:00 a.m. - 3:30 p.m. National Research Center for Coal and Energy (NRCCE) Room 101 AB Evansdale Campus at West Virginia University, Morgantown WV Open to the Public and No Cost to Attend Sponsored by the West Virginia Watershed Network

AGENDA 10:00 am Welcome and Logistics - Jim Laine (WV DEP)
10:05 am Water Monitoring Data Uses and Current Issues - Patrick Campbell (WV DEP) TMDL update, Marcellus Shale, Selenium
10:15 am USGS Flow Gauges/USGS databases - Doug Chambers
10:35 am EPA Region III Water Quality Exchange (WQX) database - Lou Reynolds
10:55 am Ohio River Sanitation Commission (ORSANCO) Ohio River Program - Sam Dinkins 11:15 am WV DEP Watershed Assessments - John Wirts
11:35 am WV Department of Agriculture - Matt Monroe
11:55 am Lunch (Brown Bag)
1:00 pm WV DEP Abandoned Mine Lands (AML) - Shelia Vukovich
1:10 pm WV DEP Special Reclamation (Bond Forfeiture) - Alyce Lee
1:20 pm WV DEP Division of Water & Waste Management - NPDES - Bob Bates
1:35 pm WV DEP Division of Mining and Reclamation - NPDES Article 11 Surface Mining Control and Reclamation Act (SMCRA) Article 3 Mining & Trend Network Information - Ken Politan 2:00 pm WV Division of Natural Resources (TBA) 2:15 pm Friends of Cheat - Keith Pitzer
2:30 pm Break
2:40 pm WV Department of Health & Human Resources - Rick Shaver
2:55 pm WV Save Our Streams (WV SOS) Program - Tim Craddock
3:10 pm WV DEP GIS information - Larry Evans
3:30 pm Wrap-up/Comments

Presenter Speaking Points Introduction to the Agency including Agency mission Sampling Plans- purpose for sampling with brief explanation (regulatory, research, program mandate, trends, etc) Locations - How are locations determined? How are locations recorded (GPS)? Collection - Type of collection (grab, composite or continuous) Parameters sampled - water chemistry (pH, dissolved oxygen, fecal, etc) Is flow monitoring included? Does the organization do macroinvertebrate sampling? Frequency of Sampling - how often are samples collected? Analysis - Field or laboratory Agency or contract laboratory Analytical methods reference Data Storage - Paper or electronic Agency database or stand alone Is GIS data available? (Type and date of coverage) Contact for GIS files or questions Data Availability - Is it available to the public Web based system or must it be requested (Is a Freedom of Information Act request required?) Overview of future monitoring plans - brief and concise Final Points Any website links you would like to provide? Identify any reports generated based on sampling program and how reports are accessed (electronic / hard copy) Identify contacts in your organization for follow-up questions or additional information. ~PLEASE PASS THIS ANNOUNCEMENT ALONG TO OTHERS THAT MAY BE INTERESTED IN ATTENDING!

West Virginia 2008 Integrated Water Quality Report Available

West Virginia's 2008 Integrated Water Quality Monitoring and Assessment Report is available from the WVDEP. I can't describe it any better than they do, so here's the press release.


A comprehensive report detailing the health of the state’s waters and a list of impaired streams has been approved by the U.S. Environmental Protection Agency.

The Department of Environmental Protection submitted the West Virginia 2008 Integrated Water Quality Monitoring and Assessment Report to the federal agency for review and approval after soliciting public input.

The report, which fulfills requirements of Section 303(d) and Section 305(b) of the federal Clean Water Act, was approved Jan. 17. Section 303(d) requires the creation of a list of impaired streams in the state and Section 305(b) necessitates an overall assessment of West Virginia’s waters. The DEP’s Division of Water and Waste Management’s Watershed Assessment Branch compiled, evaluated and summarized all readily available water quality data for West Virginia’s waters. The integrated report contains assessment methodologies and results, information on Total Maximum Daily Load (TMDL) development, water pollution control programs and various other water resource management issues. The 303(d) list is the comprehensive list used for TMDL selection and development in West Virginia.

Individuals may request a CD version of the West Virginia
2008 Integrated Water Quality Monitoring and Assessment Report or download all or part of the report from www.wvdep.org/wv303d.

For more information about this report, please contact Steve Young at (304) 926-0495.


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Alternative Energy Continues to Make Inroads

It appears that the United States took the lead in total wind-generated power production last year, although as several bloggers noted, on a per capita basis we're still far behind Germany, Denmark, Spain and other countries. This follows hard on the heels of a post from earlier this month, where I noted that in 2007 total newly-installed wind-generated power had exceeded new coal-generated power for the first time. They still haven't solved the level load, storage problem, but that may change. In the meantime, we'll have to keep producing coal and oil and gas. There is no alternative.



Also needing a power storage solution, but exciting nonetheless, is the development of what is billed as the largest solar power plant in the world, in southern California. I was interested to see that it is a solar thermal plant - that is, it generates power by using mirrors to concentrate sunlight and produce high temperatures, heating steam to drive a turbine, just like a coal plant, rather than relying on photovoltaics. Solar thermal is much cheaper to develop than photovoltaics, and while PV remains the holy grail, as a practical matter solar thermal probably will be the way to go for quite a while.

WVDEP Secretary Grilled on Coal Slurry

The Legislature is going to keep an eye on coal slurry this year, if Sen. Unger and Del. Manchin have their way. This article from the Gazette explains that Randy Huffman, Secretary of the WVDEP, was called before the Joint Legislative Oversight Commission on State Water Resources and asked why his agency has failed to report to the Legislature on disposal of coal slurry in underground mine voids in the state.

Coal slurry is generally composed of coal refuse, or the rock and dirt that come out of the mine with the coal, along very small coal particles. The rock and fine coal is separated from the coal, often in a flotation system at a preparation plant, and has to be disposed somewhere. Sometimes it is sent to a pond to decant and either closed in place or hauled off, or it can be pumped back underground into old mine tunnels and shafts as a slurry. It differs from the slurry that was released from the TVA plant last year, in that the TVA plant handled coal combustion byproducts (ash and other material left after burning coal in the boilers) and coal slurry is mostly non coal rock and dirt. For an update on what national legislation Nick Rahall (D-WV) has introduced regarding regulation of coal combustion byproducts, you can see what Cindy Rank of the WV Highlands Conservancy has to say.

Last of the Coal Burning Power Plants?

Kent Higgins has passed along this article from the New York Times about the campaign against coal-burning power plants that is occurring elsewhere int he country. Some speculate that the coal burning plants that are on the drawing boards now are the last that will be built, at least with no carbon capture built into the plant. We'll see.

Fourth Circuit Rules for Industry in Mountaintop Mining Lawsuit

The United States Court of Appeals for the Fourth Circuit has overturned Judge Chambers' rulings of March 23 and June 16, 2007 that the US Army Corps of Engineers (the Corps) had improperly issued permits for stream fills at several mountaintop removal sites in West Virginia. The decision had been long awaited, as there are several other lawsuits challenging mountaintop removal permits that will be affected by this decision.

The Court's opinion provides a good summary of the programs that govern mountaintop mining. The National Environmental Policy Act (NEPA), the Clean Water Act (CWA) and the Surface Mining Control and Reclamation Act (SMCRA) are implicated, and are administered and interpreted by the Corps, the US EPA, and the WV Department of Environmental Protection, with sometimes overlapping jurisdictions. It can be a little confusing, and the Court's exegesis of the statutory and regulatory maze is pretty good.

The following summary assumes some basic understanding of mountaintop mining and permitting requirements.

The Court made several favorable rulings for the Corps and the mining companies who received permits from the Corps. First, in issuing the 404 permit, the Corps was correct to consider only the effect of filling the jurisdictional streams in the course of constructing the valley fill, and was not required to look at the environmental impact of the entire valley fill. NEPA requires the Corps to take a "hard look" at the environmental aspects of its actions, which may at times extend beyond the geographical limits of its permitted fill area, but that was not required in this case. Consideration of the larger effects of the valley fill is the province of the WVDEP, as the delegated agency with responsibility for implementing SMCRA.

Second, the Court determined that the Corps had not adequately supported its decision to issue a "mitigated FONSI" or a Finding of No Significant Impact under NEPA, with regard to the proposed filling of streams that are covered by the valley fills. The Court reviewed the decision using an abuse of discretion analysis under the Administrative Procedures Act. The District Court had rejected the Corps' analysis of the effect of the permitted fills on the structure and function of the buried streams; the sufficiency of mitigation measures, and the adequacy of the assessment of the cumulative impact of all the fills. The 4th Circuit engaged in a lengthy discussion of what constitutes an acceptable analysis of "structure" and "function" and ruled the Corps had not acted arbitrarily or capriciously. Mitigation (replacement of the buried streams by improvements to, or creation of, streams and wetlands in other locations) was found to be satisfactory, which allowed the Corps and the Court to conclude that there would be no net adverse effect on water resources. This counterbalancing of the stream burial with the creation or rehabilitation of other water resources was the justification for the mitigated FONSI. Finally, the 4th Circuit ruled that the Corps had fairly considered the overall effect of all the stream fill activities in conducting its cumulative impact analysis.

The Court also addressed the perpetual conflict between Sections 404 and 402 of the CWA in the mining context. Sitting at the base of any valley fill is a sediment pond, and to discharge from that pond requires a CWA 402 NPDES permit. Sometimes there is a short length of stream that runs from the toe of the valley fill to that sedimentation pond, and the District Court had ruled that a NPDES permit was required for the discharge from the toe of the fill, because that stretch is a water of the United States, and no discharge can be made to it without a permit. This has been a matter of contention for years, with case law, changing rules and contradictory memoranda of understanding between EPA and the Corps to throw into the mix. The Corps contended that those stretches of stream are part of a wastewater treatment system, and therefore no permit was needed to discharge into it. The 4th Circuit agreed that the Corps' interpretation of the CWA and its regulations was not unreasonable and was entitled to deference.

Judge Michael concurred in part and dissented in part. He felt that the Corps had not conducted a proper functional analysis of the streams that would be buried, and the permits should be remanded to the Corps to carry out that analysis. He believed that the use of EPA's Rapid Bioassessment Protocol and the WVDEP's Stream Condition Index did not necessarily gauge the health and qualities of the streams, and therefore it would be impossible to say that the mitigation measures approved by the Corps would be sufficient to fully replace the streams that were being buried.

I can't imagine that the Ohio Valley Environmental Coalition, which was the plaintiff in the lawsuit, will not appeal this decision to the US Supreme Court. It will be interesting to see if the Supreme Court accepts the petition. For a take on what some people have said in response to the decision, here's an article by Ken Ward.

EPA Approves State SIP Changes

People want to talk about sexy environmental issues that are easy to understand and discuss in general terms - things like global warming, coal ash spills, ocean acidification and the like. The real nuts and bolts of environmental law, though, is done at the state and federal regulatory level, where standards and restrictions are put in place and enforced. For air pollution, the State Implementation Plan, or SIP, is the means by which each state shows how it is going to meet the requirements of the federal Clean Air Act. The West Virginia SIP consists of multiple state rules that set the air emission limits, monitoring requirements, and other restrictions necessary to comply with the Clean Air Act.



My colleague Anne Blankenship reports that EPA recently approved changes to West Virginia's SIP by establishing new ambient air quality standards in 45CSR8, updating and incorporating all six criteria pollutants to be equivalent to the national ambient air quality standards. The revision repeals rules 45CSR9--Ambient Air Quality Standards for Carbon Monoxide and Ozone and 45CSR12--Ambient Air Quality Standard for Nitrogen Dioxide, and moves these ambient air quality standards into Rule 45CSR8. This final rule is effective on March 12, 2009.

EPA's summary of the rule is as follows:


On April 25, 2008, the State of West Virginia submitted as a SIP revision Rule 45CSR8--Ambient Air Quality Standards, which updates and incorporates all six criteria pollutants to be equivalent to the national ambient air quality standards. The revision repeals rules 45CSR9--Ambient Air Quality Standards for Carbon Monoxide and Ozone and 45CSR12--Ambient Air Quality Standard for Nitrogen Dioxide, and moves these ambient air quality standards into Rule 45CSR8. The revision includes a correction of the sulfur dioxide annual primary standard from 0.003 to 0.030 parts per million (ppm), removes the annual PM₁₀ standard, and incorporates the annual PM_2.5 standard, the 24-hour PM_2.5 standard of 35 μg/ m3, the primary and secondary standards for lead, and the primary and secondary 1-hour and 8-hour ozone standards. The SIP revision includes the revocation of the 1-hour ozone standard except for Berkeley and Jefferson Counties and it identifies the 1-hour ozone maintenance areas. The SIP revision also adds new reference conditions for PM_2.5 and measurement methods for PM_2.5 and lead. Other specific requirements of West Virginia's ambient air quality standards and the rationale for EPA's proposed action are explained in the NPR and will not be restated here. No public comments were received on the NPR.

Surface Owner Legislation Being Considered

Ken Ward of the Charleston Gazette reports that a legislative interim committee is considering a Surface Owner's Bill of Rights. Presumably it is not the same as the one posted on the Surface Owner's website, which is in rough legislative form but is awkwardly written. The intent of the group is to protect the rights of surface owners who no longer own the oil and gas under their property. In many places in West Virginia, ownership of the oil and gas was severed from ownership of the surface, with the owner maintaining the surface, and oil and gas owners taking the minerals and the right to drill from the surface. When the time comes to drill, disputes can sometimes arise as to how much land can be used for the drilling site and the roads leading to it.

In my experience the oil and gas companies have worked hard with landowners to avoid disputes over surface usage, and have accommodated landowners where possible. It's not to their benefit to get into a fight with landowners, and they generally work things out. In addition, there is the Oil and Gas Production Damage Compensation Act, W. Va. Code 22-7-1 et seq. that allows landowners to receive money for damages suffered as a result of drilling activity. We'll follow the Surface Owners Bill of Rights if it is introduced in this session of the Legislature.

Environmental Rules to be Considered by LRRC

Tom Boggs of the WV Chamber of Commerce passed along the following regarding environmental rules that will be taken up by the Legislative Rule-Making Review Committee (LRRC) tomorrow. For those unfamiliar with the West Virginia rulemaking process, an explanation follows Tom's notice:

The Joint Legislative Rule-Making Review Committee will meet on Tuesday, February 10, (9:00 am - 11:00 am) in the Senate Judiciary Committee Room. The agenda is attached. This meeting is expected to be the Committee's last before the start of this year's regular legislative session. Four WVDEP rules being considered.
________________________________

45CSR1 Office of Air Quality

This rule contains ozone season Nox reduction requirements which apply to large fossil fuel-fired industrial boilers with heat inputs greater than 250mmBtu/hr. 45CSR1 also contains ozone season Nox reductin requirements for certain large cement kilns and internal combustion engines.

45CSR26 Office of Air Quality

This rule contains NOx reduction requirements which apply to electric generating units which have and electric generating capacity greater than 250 megawatts

38CSR2 Mining and Reclamation

This rule establishes general and specific rules for permit application requirements and contents; haulageways or access roads; drainage and sediment control systems; blasting; premining and postmining land use; fish and wildlife considerations; revegetation; prime farmlands; insurance and bonding; replacement, release, and forfeiture of bonds; requirements of notice of intent to prospect; performance standards; performance standards applicable to underground mining operations; subsidence control; small operator assistance program; citizen's actions; designation of areas unsuitable for mining; inspection and enforcement; Surface Mine Board; and Coal Refuse

47CSR30 Water Resources

This rule sets the requirements implementing the powers, duties, and responsibilities of the WV Code §22-11-1 with respect to all coal mines, preparation plants and all refuse and waste there from in the State

The Committee will also deal review and act on a rule under the Economic Development Office, 145CSR11, Brownfield Economic Development Districts.

Almost all rules, and all environmental rules, that are proposed in West Virginia have to be approved by the Legislature. Most of those rules are reviewed by the LRRC before they are sent on to the Legislature, where they are bundled and voted on in omnibus rules. The rulemaking process in West Virginia is rather convoluted, and at some point will be the subject of a blog entry. for the time being, if you're interested in the process, check WV Code Chapter 29A, Article 3

Philippine Loggers and the West Virginia Economy

We often hear about the global economy and the effect local events can have half a world away. This article from the Business Mirror is a report of a crack down on illegal logging in parts of the Philippines. The reason given is the environmental importance of the intact forests for other land uses. "'We need to secure these areas from destructive elements because millions of people depend on these areas for irrigation and drinking water,' the DENR official pointed out, adding the DENR needs the support of the military in most of its tactical operations to flush out timber poachers and illegal loggers operating in the region’s forest areas. " While that is important, it bears noting that trees that are cut illegally depress the price of timber everywhere, reducing the demand for West Virginia timber to be used in furniture that is being made in the growing East Asian economies. Our timber operators in this state suffer when timber is cut cheaply elsewhere, without the operators paying taxes and engaging in necessary reforestation.

We are lucky in West Virginia to have forests that are operated in a sustainable fashion. Trees are growing faster than they are being cut. Best management practices reduce the sediment that washes into streams, and prevent increased peak flows during heavy rains. For more information about logging practices in West Virginia, and reports on forest health, try the WV Division of Forestry website.

Wind Largest Source of New Power in 2007

Ecogeek says that the US Department of Energy has reported that of 8.6 gigawatts of new electrical generation capacity installed in 2007, 5 gw were produced by windmills, with most of the rest supplied by natural gas. New coal plants provided about 1 gw, but with retirements of coal-fired boilers, coal -generated power shrank by 200 megawatts. The DoE put it this way:

"In 2007, for the first time, renewable energy sources, other than conventional hydroelectric capacity, accounted for the largest portion of capacity additions. Total net summer capacity increased 8,673 MW in 2007. Wind capacity accounted for 5,186 MW of this new capacity. Natural gas-fired generation accounted for 4,582 MW. Two new coal-fired plants with summer capacity totaling 1,354 MW were placed in service in 2007. However, retirements and downward adjustments to existing capacity resulted in a 217 MW net reduction in coal-fired capacity."

Interestingly, the amount of electricity generated by coal grew to its highest level ever. "In 2007, electricity generation from coal-fired capacity increased 1.3 percent, reversing the decline from 2005 to 2006. Coal-fired generation increased from 1,991 million MWh in 2006 to 2,016 million MWh in 2007. This is a new record, exceeding the previous all-time high of 2,013 million MWh set in 2005." However, "[i]n spite of setting a record level for generation in 2007, coal’s share of total net generation continued its downward trend in 2007. It accounted for 48.5 percent of total net generation in 2007 as compared to 49.0 percent in 2006 and 52.8 percent in 1997. Nevertheless, it remains the primary source of baseload generation. The decline in coal’s share of total net generation in 2007 was attributable to continued increase in the share of total net generation produced by natural gas-fired and nuclear capacity, as well as renewable sources, other than conventional hydroelectric capacity. "

An interesting development. For those interested in the details, the report can be found here. I didn't see cost comparisons of the various types of generation, but they may be somewhere in the report. It would be interesting to compare the cost of wind power, without subsidies, against other sources of power.

Residents Allege Damage to Water Supplies from Coal Slurry

The Associated Press reports that residents of Prenter in Boone County have filed suit against Massey Energy and other coal companies for allegedly poisoning their water supplies. The lawsuit states that the damage is caused by slurry, pumped from coal prep plants into underground mining voids, although that does not seem to be established yet from the scientists that were interviewed, or the DEP. These allegations are common in southern West Virginia, where water sources are often bad or unreliable regardless of mining. With luck, some of the Obama infrastructure stimulus will go to providing water lines to these people.

For those of you who are not from West Virginia and follow the hyperlink, please note that Prenter is not where the Google map indicates. That's Morgantown, where the story was filed. Boone County is in Southern West Virginia.

Fourth Circuit Allows Interstate Lawsuit Under Nuisance Theory

The Fourth Circuit Court of Appeals in its State of North Carolina v. Tennessee Valley Authority decision ruled on January 13 that upwind air pollution sources can be sued by downwind states under state nuisance causes of action. One blogger has described the lawsuit in this fashion:

In the case, the State of North Carolina sues TVA under the North Carolina common law of nuisance to enjoin the way that the TVA operates its coal-fired power plants in other States, namely Tennessee, Alabama, and Kentucky. North Carolina alleges that the "lawful emissions" from the TVA’s power plants in other States travel downwind and reach North Carolina airspace, where they damage human health and the environment in North Carolina. "Even though such emissions are regulated by and in compliance with the federal Clean Air Act and State law at the location of the plants," North Carolina contends that the emissions, whether permitted under applicable statutory laws, nonetheless create a public nuisance under North Carolina common law.

You can see the rest of the entry at http://environmentalappealscourt.blogspot.com/2008/02/state-of-north-carolina-v-tennessee.html

The TVA decision by the Fourth Circuit could lead other states to bring similar actions based on that state's own nuisance law. States downwind of West Virginia may be inclined to bring such actions against West Virginia sources, to the extent that they can prove that West Virginia emissions are interfering with their attainment of air quality standards. Of course, given the complexities of air modeling, that may be more easily said than done.

National Water Quality Inventory Available from EPA.

EPA reports that the National Water Quality Inventory Report is available at http://www.epa.gov/owow/305b/2004report/. It summarizes water quality assessments submitted by the states to EPA under section 305(b) of the Clean Water Act. The report finds that the states assessed 16 percent of the nation's 3.5 million river and stream miles, 39 percent of its 41.7 million acres of lakes, ponds and reservoirs, and 29 percent of its 87,791 estuary square miles. Forty-four percent of assessed river and stream miles, 64 percent of assessed lake acres, and 30 percent of assessed estuary square miles were found to be impaired for one or more of the uses designated for them by the states. Leading causes of impairment included pathogens, mercury, nutrients, and organic enrichment/low dissolved oxygen. Top sources of impairment included atmospheric deposition, agriculture, hydrologic modifications, and unknown or unspecified sources. This report is a companion to electronically-submitted state water quality information available on EPA's Web site, known as ATTAINS, at
http://www.epa.gov/waters/ir. In addition to viewing the national summary and information by state at this Web site, users can click down to the individual waterbody level to find out more about water quality conditions.

If you're interested in the 305(b) report filed by West Virginia, the most recent on the DEP website is from 2002, although there should be reports for every 2 years since then. It provides a wealth of information about water quality in West Virginia, including program goals that may not be reflected in the EPA data summary.

For those of you who want updates from EPA on water topics, you might want to subscribe to Water Headlines. To subscribe to the Water Headlines listserve, send an email message, leave the subject line blank, and address it to waterheadlines-join@lists.epa.gov