WV DEP Holds Water Quality Standards Meeting

On May 18 the DEP Division of Water and Waste Management held a public meeting to discuss its plans for the 2011 triennial review of water quality standards (47 CSR 2). The DEP does not intend to propose changes to the water quality standards this year, for adoption by the Legislature in 2010, as it is still trying to get approval from EPA for the changes adopted by the Legislature in 2008. Scott Mandirola, Director of the DWWM, believes that the only holdup from those 2008 rule changes, which will not become final until EPA approves them, has to do with the nutrient criteria proposed for lakes. The rest of the changes should be approved, he hopes in the next couple months.

Selenium criteria are not currently on the list of issues the DEP is looking at for 2011, because EPA implementation guidance for the body burden criteria has been delayed, as EPA goes to public notice again. Also, the DEP is doing more fish tissue and water quality testing, particularly around the Mud River.

There were 4 presentations regarding changes that might be proposed for 2011. I will just hit the highlights here, as the PowerPoint presentations are available on the website now, which can provide more detail.

Mike Arcuri spoke about the fish consumption survey that was conducted for DEP by Responsive Management and its relation to the mercury criteria. There are presently 2 sets of criteria for mercury – those that set a limit for mercury (.5ug/g) in fish tissue, where it bioaccumulates, and water column criteria (.14 ug/l or 15ug/l) that are used to set NPDES permit limits. The fish consumption survey revealed that West Virginians do not eat as much locally caught fish as other states’ citizens, and using EPA’s criteria formula, the acceptable body burden criteria ranged from about .51 to .54 ug/g. This is substantially higher than the EPA recommended criterion of .3 ug/g. In short, there is no reason to decrease the body burden criteria.

James Summers presented the findings on nutrients. The DEP has found a correlation between phosphorus and hardness in causing algae growth in state streams. Criteria for phosphorus may therefore be linked to hardness for purposes of state streams, but lower levels eventually may be required for protection of the Chesapeake Bay and Gulf of Mexico. Other potential nutrients, like nitrogen, don’t seem to be implicated on a state-wide basis, although they may have local effects.

Dave Montali explained that the low criterion (.5 ppm) for iron in trout waters was causing problems with developing achievable TMDLs. Iron levels are tied to sediment runoff during storm events, and some sediments in the state are so high in iron that, even eliminating all human-induced effects, state streams can’t meet the .5 standard during storm loading. That standard is lower than any other state, as far as can be determined, and is not justified by studies done 30 years ago by the DNR. Most states that have an iron criterion for trout water set it no lower than 1 ppm, and EPA does not recommend a lower number. Pat Campbell mentioned that the DEP is looking at several options, including raising the criterion, or leaving the criterion the same, but allowing larger or more frequent exceedances, since episodic storm-related iron increases don’t seem to be a problem.

Pat Campbell spoke about total dissolved solids, primarily in the Monongahela River, and what the DEP is doing to decide whether there is need for TDS criteria. The DEP is currently gathering data and talking with EPA about the need for criteria, and Pat requested input from interested parties by July 2, 2009. There does not appear to be a widespread problem in West Virginia, at least not to the extent experienced by Pennsylvania, which allows oil and gas produced waters to be discharged to state streams. It appears that TDS loading in the West Virginia portion of the Mon River is associated with mining, not produced fluids from oil and gas production. The DEP is in the process of analyzing frac waters from Marcellus shale wells for chlorides and other substances, such as benzene, to get a handle on what would be discharged with the produced water when it is sent to POTWs.

Scott Mandirola closed the meeting by stating that the DEP is interested in other changes to water quality standards, and is soliciting other proposals for changes. He expects to hold another meeting in 3 to 4 months.

US Supreme Court Issues Seminal Decision in Superfund Case

The US Supreme Court recently issued a decision in Burlington Northern & Santa Fe Railroad v. United States, a case that will have important ramifications for Superfund practice in the US. A recent article by Bradley Marten does a great job explaining the decision, but for those of you not versed in Superfund, here's a short background.

Superfund is another name for the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) which has, as one of its primary purposes, the clean up of sites contaminated by hazardous substances. Remediation of contaminated property can be extremely expensive, and if the contamination occurred years ago, the people that were responsible for it may have been out of business for years. When no one can be found to pay for the clean up, the Superfund is tapped. However, there isn't nearly enough in that fund to pay for everything, so courts would stretch some in order to impose liability on existing corporations whenever possible. They did this by something called joint and several liability - if you were responsible for a small portion of the overall contamination, you were responsible for all of it, in conjunction with the other solvent defendants. In addition, courts ruled that companies that sent product, like insecticide, to a site, were responsible parties simply because a bag would occasionally break open and spill its contents on the ground, even though the seller had no way to control how its product was used or handled. The goal was to bring as many solvent companies to the table and force them to fund the clean up, even though they may have contributed to a very small portion of the site contamination. The result was a high stakes game where it was worth spending millions on lawyers and consultants to avoid liability at a site, or to be declared a de minimis contributor, because once in the mix, you could be liable for a large portion.

The Supreme Court changed this somewhat by limiting the when someone could be an arranger, and clarifying joint and several liability. Determining whether you are an arranger will be determined by whether the facts suggest you were transferring a product in the ordinary course of business, or whether you were were instead looking to discard a waste. Many transactions will fit somewhere between the two, but there is now a clearer defense for those that are merely sending product to a customer. As for joint and several liability, the Court approved an apportionment based on Shell's ability to demonstrate that its product could only have contaminated a limited area of the site, and therefore it should only be responsible for that portion, not a share of the entire remediation.

If you're interested in learning more about Superfund, Rob Lannan has done that type of practice for years, and can be reached at rel@ramlaw.com

Status of MACT Area Source Delegation Available

Rick Wilson, President of Acacia Environmental Group, has developed an Area Source MACT guidance table that includes the DEP's Division of Air Quality delegation status of area source MACTs. It is based upon information received by Rick from Renu Chakrabarty at DAQ. It is a helpful guide to determining the compliance date and notification dates for existing sources, the status of delegation, and contacts at the DAQ who are responsible for the MACT. Please remember that this information was based upon EPA and DAQ guidance as of March 24, and that the information is subject to change.

Sorry, I haven't explained that MACT is the Maximum Available Control Technology required for certain sources of hazardous air pollutants. It's a long story, and not of interest to anyone who's not responsible for air permitting (and you know if you are). If you have questions about the MACT standards, call Anne Blankenship at 304 347-8344 or contact Rick by clicking on the hyperlink.

Court Rules on Superfund Liability; GE Dredges the Hudson River as Superfund Remedy

Superfund is a federal program that requires companies to clean up pollution long after it was created, and often imposes liability on companies that merely bought the offending polluter, or who created the pollution at a time when the waste disposal was lawful, standard industry practice. This story from the New York Times reports on a recent US Supreme Court decision that tightens the criteria for holding a company liable under Superfund.

This story from the New York Times is about the dredging of the Hudson to remove PCBs, which has been a huge fight between GE and EPA for years. The PCBs were disposed years ago, lawfully, by discharging them into the Hudson River. EPA wanted GE to dredge the River to remove those that are still there, and GE resisted, saying the dredging was not the best way to deal with the problem. It is a classic example of the extensive legal battles and expensive clean ups that can result from the Superfund program.

I am not familiar with the remedy in this case, so I have no reason to believe that the dredging is not useful. However, one wonders whether it's a good idea to disturb PCBs in the sediment by dredging them, rather than leaving them in place. There are cases, like some asbestos removal, where the cure is worse than the disease.

EPA Relaxes Grip on Mountaintop Mining Permits

Last month EPA announced it was putting a hold on 48 mountaintop mining permits to allow further review. EPA has recently announced that it was releasing the hold on 42 of those permits. You can see a statement from Rep. Rahall here in the State Journal. Here's another take on the story by Ken Ward of the Charleston Gazette.

DEP Holds Meeting on Water Quality Standards

The WV DEP Division of Water and Waste Management held a meeting yesterday to discuss plans for changes to water quality standards that it will propose in 2010 for adoption by the Legislature in 2011. This is pre-planning for the state's triennial review of water quality standards, mandated by the Clean Water Act.

The Power Point presentations that they used will be up on the website shortly, and when they're there I'll link them to an article here. In the meantime, it maybe helpful to know that they addressed nutrient criteria for rivers and streams, which turned out to be phosphorus only; mercury criteria and the results of a fish consumption study; total dissolved solids criteria; and iron criteria for trout waters.

The following is a report from Ken Ward on the meeting. What Ken has reported is accurate, but it doesn't convey the whole story. The DEP is considering raising the iron criteria for trout streams because it is lower than necessary to protect trout and, in many locations, it is lower than natural levels of iron in streams, even if you took out all effects of human activity. And the reference to Marcellus Shale discharges contributing to high TDS is misleading, at least in West Virginia, since almost all Marcellus shale water is injected through UIC wells or otherwise disposed, not put in state rivers. High TDS is generally driven by discharges from old mining sites.

DEP considering relaxed iron rules for trout streams

West Virginia regulators are working on a plan that would double the legal limit of iron allowed in the state's trout streams, state Department of Environmental Protection officials announced Monday.
By Ken Ward Jr.
Staff writer
CHARLESTON , W.Va. -- West Virginia regulators are working on a plan that would double the legal limit of iron allowed in the state's trout streams, state Department of Environmental Protection officials announced Monday. DEP officials said the change is one being considered as part of their review of state water quality standards, required every three years by the U.S. Environmental Protection Agency.

Dave Montali, head of the DEP's stream cleanup unit, said agency officials are having trouble devising plans by which some trout streams can meet the state's current limit of 0.5 parts per million of iron. So they want to increase the limit to 1.0 parts per million, the level currently recommended by the EPA. Montali said surrounding states all have limits that are looser than West Virginia 's, and DEP officials could not find a single state with a standard as strong as West Virginia 's. Montali also cited a more than 30-year-old state study that said trout could survive iron levels as high as 1.37 parts per million. "There is information out there that suggests a more lenient criteria might be appropriate," Montali said. "We're committed to taking a look at the criteria." If eventually approved by the DEP and the Legislature, the change would loosen pollution permit limits for companies, including coal operations, that discharge iron into state streams that support reproducing trout populations.

The announcement of the proposal came during a Monday afternoon meeting held to begin public outreach on the DEP's latest triennial review of water quality standards. It's the second such review to be conducted by the DEP since the agency took over water quality standards' authority from the state Environmental Quality Board in 2005.

DEP officials also said they have no plans to propose a tightening of West Virginia 's limit on the amount of mercury considered legal in fish tissue. Currently, the state's limit is 0.5 parts per million. The EPA recommends a lower limit of 0.3 parts per million. Mike Arcuri of the DEP said a survey conducted last year found that West Virginians eat only about half as much fish as they catch from local streams as the nationwide estimate the EPA used to develop its recommended standard. If the state survey figure -- a little more than 9 grams of fish per month, compared to EPA's national average of 17.5 grams per month -- is used, the state's mercury limit turns out to be perfectly adequate, Arcuri said. Arcuri said the DEP's survey, conducted by an outside contractor, did not account for whether low-income populations in West Virginia eat more fish they catch than other state residents.

Also during Monday's meeting, DEP's Pat Campbell said the agency is studying but not currently proposing any sort of water quality limits for total dissolved solids to address growing concerns about disposal of fluids from large-scale oil and gas drilling in the Marcellus Shale formation. EPA recommends standards in the range from 250 parts per million to 500 parts per million, and surrounding states such as Pennsylvania, Kentucky, Ohio and Virginia have or are moving to adopt such standards. West Virginia does not have a water quality standard for total dissolved solids. "This is the beginning of the state considering whether to have a TDS criteria and what that number should be," Campbell said.

WV Department of Environmental Protection Announces Water Quality Standards Meeting

Here's a press release from the WV DEP regarding a meeting to discuss water quality standards in the state.

Charleston, W.Va. – The Department of Environmental Protection’s Water Quality Standards Program is having a public meeting to discuss issues related to requirements governing water quality standards.

Staff from the Water Quality Standards program will discuss criteria for iron, mercury, total dissolved solids and nutrients in the state’s waterways.

The meeting will take place Monday, May 18 at 1 p.m. in rooms 1203 and 1204 in the Department of Environmental Protection’s headquarters, located at 601 57th Street SE, Charleston, WV.

Interior Makes Surprise Call on Endangered Species Act

Kudos to Ken Salazar and, by extension President Obama, for his decision to retain the Bush Administration's position that the Endangered Species Act (ESA) should not be used to regulate climate change. Environmental groups had been pressing the Interior Department to reject a rule that limits use of the ESA to control greenhouse gases. A listing under the ESA triggers some pretty drastic action in defense of the listed species, and the environmentalists' hope had been that, with a rule change, they could force greater controls on carbon dioxide production in order to protect polar bear habitat. Salazar believes that more may need to be done for polar bears (questionable, since their numbers have been rising since the 1950's) but that it isn't good policy to regulate greenhouse gases through the ESA. There are plenty of other avenues EPA is exploring for that purpose, and it's reasonable to use those direct avenues rather than a roundabout approach.

This article from the New York Times provides more detail.

WV DEP Holds Meeting to Discuss Minor Source Air Permit Issuance

The West Virginia Division of Air Quality held a meeting last week to explain 45 CSR 13, the minor source permit rule. The rule was changed during the past Legislative session, and it should be reviewed by anyone responsible for permit applications. One of the purposes was to allow certain types of activities to occur before permit issuance. Anne Blankenship and others worked hard to get these changes made. If you would like to see the materials that were presented at that meeting, including the PowerPoint presentations, go here to where we've put them.

EPA Rule Will Govern Renewable Fuel Use

Here in WV we focus on domestic sources of energy - coal, natural gas and increasingly wind power - and not biofuels. There isn't much row cropping in West Virginia that would support a biofuels industry. However, the Charleston Vandalia Rotary Club recently heard a presentation from an impressive group of ladies from the Lincoln County Future Farmers of America who are in the process of developing a biodiesel production program. More impressive, to me, is their ambitious plan to move to algae as the biological source of the biodiesel. This is cutting edge stuff, and they are to be commended for heading in that direction.

This article in the Des Moines Register explains that a recent EPA rule could have an effect on the biodiesel industry, which started with such fanfare as a green source of energy, but became less of a renewable energy poster child when the full effects of the production cycle were considered, such as the energy required to plant and harvest the plant material, and the carbon-sucking plant life that is removed to make room for the row crops. It's worth looking at to see some of the hurdles renewable energies like biodiesel will have to overcome.

EPA recently published a rule establishing volumes of biofuels that are to be in transportation fuel each year, and definitions of what qualifies as a renewable fuel. A fact sheet describing the EPA rule can be found here, from which the following introductory material was taken:

The U.S. Environmental Protection Agency is proposing revisions to the National Renewable Fuel Standard program (commonly known as the RFS program). Today’s proposed rule intends to address changes to the Renewable Fuel Standard program as required by the Energy Independence and Security Act of 2007 (EISA). The revised statutory requirements establish new specific volume standards for cellulosic biofuel, biomass-based diesel, advanced biofuel, and total renewable fuel that must be used in transportation fuel each year. The revised statutory requirements also include new definitions and criteria for both renewable fuels and the feedstocks used to produce them, including new greenhouse gas emission (GHG) thresholds for renewable fuels. The regulatory requirements for RFS will apply to domestic and foreign producers and importers of renewable fuel.

Filter Solves Urban Storm Water Runoff Problems?

If you think that chemical factories, or steel mills, or mining are the biggest causes of water pollution in WV, you'd better go take a look in a mirror. The fact is, storm water runoff, so-called nonpoint source runoff, is a greater problem. All those lawn chemicals you use, the salt you put on your sidewalk and the city puts on your roads, the body waste from your pets, the oil that drips from your car, the gas that spills out of your car tank, . . . well, you get the point. All of that lies around on the ground, waiting to be carried off by the next heavy rain that can flush it into the city's storm sewers, or directly to a stream.

If a city's storm sewers carry the runoff directly to the river, the loading of chemicals and pathogens can be tremendous. If the storm sewers carry the water to the sanitary sewer for treatment, a heavy flow can overwhelm treatment, causing the city to bypass treatment and dump storm water and raw sewage into rivers, in something called a combined sewer overflow, or CSO. Fixing these systems, which require constructing huge amounts of storage, or additional treatment capacity, or rerouting sewers, is tremendously expensive, and cities have lagged in doing it. When they do it right, as I believe Charleston is, you're going to see large increases in sewer fees to pay for it.

Glenn Rink thinks he has the answer with a special filter that can be put in catch drains and at the end of storm water pipes. The filter not only catches sediment and other particles, it absorbs oil and certain other pollutants. I hope he's right, but I have a few questions - does it capture all, or even many, of the pollutants that are removed by conventional treatment? How often must filters be replaced? How much does it cost to change out and dispose the filters? Having said (or asked) that, this sounds like a great idea, if only to provide treatment for storm water while cities are looking for other, more permanent solutions.