US Supreme Court Issues Decision That Benefits Mountaintop Mining

The US Supreme Court has upheld a central tenet of mountaintop mining - the ability of the Corps of Engineers to regulate disposal of fill material in waters of the United States. In Couer Alaska, Inc. v. Southeast Alaska Conservation Council the Court considered whether the Corps or EPA had responsibility for regulating the discharge of gold mining waste generated by a "froth flotation" technique into a lake. Couer Alaska had a 404 permit (named for the Clean Water Act section that governs discharges of fill material to lakes, streams and wetlands) for the discharge into the lake, and a 402 (the NPDES section of the Act) permit for the discharge from the lake to the stream that drained it. Couer and the permitting agencies took the position that the discharge to the lake was of fill material, since it was largely solids, and that it didn't have to meet NPDES permit requirements until the point where the lake discharged into the downstream creek. SEACC took the position that Couer was violating the Clean Water Act for 2 reasons - a NPDES permit was required for the initial discharge of solids into the lake, and Section 306 of the CWA, relating to new source performance standards, prohibits discharge of process wastewater, including solid wastes. The Supreme Court ruled that the Corps and not EPA had authority to regulate the discharge of slurry into the lake, and that the Corps permit did not have to implement the new source performance standards of Section 306 in the Section 404 permit.



Mountaintop mines also discharge fill into headwater streams, and similar arguments have been made in WV and in the 4th Circuit that such discharges require NPDES permits instead of 404 wetlands fill permits. Challengers to the 404 permits have lost in the past, and this Supreme Court decision appears to have put this issue to rest. However, one can expect the Obama administration to consider revising the regulations on which the Supreme Court relied in reaching its decision, and there is a bill pending in Congress to accomplish the same end.



Here is a more thorough discussion of the case from Steve Jones and Laura Fandino of the Marten Law Firm, as well as articles from the LA Times and the NY Times. Earthjustice is outraged, as you might expect.

It's Environmental Rulemaking Time In West Virginia

Every year around June state agencies that have to get rules approved by the Legislature file their rules for public comment, and this year is no exception. The DEP has announced the rules that it will be taking public comment on. I can't do better than their press release, so I'll just cut and paste it below.

The West Virginia Department of Environmental Protection has scheduled public
hearings for its 2010 proposed legislative rules. All hearings will take place
at the DEP’s Charleston headquarters, 601 57th Street S.E., Charleston, WV
25304. Oral and written comments will be limited to the proposed revisions and
will be made a part of the rulemaking record. Copies of the rules are available
from the Secretary of State’s office or from the DEP at
www.wvdep.org/2010rules. You may also obtain printed copies of the information
by calling the phone numbers listed below.

Written comments may be submitted to the Public Information Office at the above
address. Comments may also be e-mailed to DEP.Comments@wv.gov. The hearing
dates, locations and comment deadlines are as follows:

Division of Air Quality
45CSR8 – Ambient Air Quality Standards
45CSR14 – Permits for Construction and Major Modification of Major Stationary
Sources of Air Pollution for the Prevention of Significant Deterioration
45CSR16 – Standards of Performance for New Stationary Sources
45CSR19 – Permits for Construction and Major Modification of Major Stationary
Sources of Air Pollution Which Cause or Contribute to Nonattainment
45CSR25 – Control of Air Pollution from Hazardous Waste Treatment, Storage and
Disposal Facilities
45CSR33 – Acid Rain Provisions and Permits
45CSR34 – Emission Standards for Hazardous Air Pollutants

The public hearing for all air quality rules will take place at 6 p.m. on July
13 in the Dolly Sods Room. The comment period will end at the conclusion of the
hearing. Upon authorization and promulgation of revisions to 45CSR8, 45CSR14
and 45CSR19, the DAQ will submit the rules to the U.S. Environmental Protection
Agency (EPA) as revisions to the State Implementation Plan pursuant to the
federal Clean Air Act (CAA). Rules 45CSR16, 45CSR25, 45CSR33 and 45CSR34 will
also be submitted to EPA to fulfill other federal obligations under the CAA,
including delegations, plans and program approvals.

For more information on any of the DAQ rules call 304-926-0475.

Division of Mining and Reclamation
47CSR30 – WV/NPDES Rules for Coal Mining Facilities

The public hearing will start at 6 p.m. on Tuesday, July 14, in the Coopers
Rock Training Room. The comment period will end at the conclusion of the
hearing.

For more information on any of the DMR rules call 304-926-0490.


Office of Oil and Gas
35CSR4 – Oil and Gas Wells and Other Wells

The public hearing will take place at 6:30 p.m. on Tuesday, July 14 in the
Coopers Rock Training Room. The comment period will end at the conclusion of
the hearing.

For more information on the Oil and Gas rule, call 304-926-0450

Division of Water and Waste Management
33CSR1 – Solid Waste Management Rule

The public hearing for this rule will begin at 6:15 p.m. on Tuesday, July 14 in
the Coopers Rock Training Room. The comment period will end at the conclusion
of the hearing.

33CSR20 – Hazardous Waste Management System

The public hearing will take place at 6 p.m. on Tuesday, July 21, in the
Coopers Rock Training Room. The comment period will end at the conclusion of
the hearing.

47CSR12 – Requirements Governing Groundwater Standards
47CSR59 – Monitoring Well Rule
47CSR60 – Monitoring Well Design Standards
47CSR10 – NPDES Rule
47CSR26 – Water Pollution Control Permit Fee Schedules

The public hearing for these rules will start at 6 p.m. on Thursday, July 16,
in the Coopers Rock Training Room. The comment period will end at the
conclusion of the hearing.

For more information on any of the Water and Waste Management Rules call 304-
926-0495.

Groups Ask EPA To Take NPDES Authority From West Virginia

A petition has been filed by Joe Lovett on behalf of the Sierra Club, Coal River Mountain Watch, West Virginia Highlands Conservancy and the Ohio Valley Environmental Coalition to take back the NPDES program from the West Virginia DEP. If granted, National Pollutant Discharge Elimination System (NPDES) permits would be issued by EPA staff at Region 3 in Philadelphia.

The petition cites a number of alleged instances of failure to comply with the Clean Water Act. Most of the instances cited by the petitioners pertain to mining, but there are also references to industrial and municipal permits.

The NPDES program is authorized by the federal government, but states generally implement the program after demonstrating to the EPA that they have the resources to issue permits. West Virginia has had authority to operate the program since about 1982.

In my experience, these petitions are not usually successful. While I am sure that Region 3 under the Obama administration would love to choke off mountaintop mining, and this would be a good way to do it, I can't imagine that they want to take over the entire NPDES program, with all the work that would entail.

Here is Ken Ward's blog on the subject, and an article by Tim Huber of AP that ran in the Gazette.

Mountaintop Mining Permits to Get More Thorough Reviews

The Obama Administration is going to look more closely at mountaintop mining permits, according to a report in the Washington Post and reports in the Charleston Gazette and Charleston Daily Mail. The plan is a memorandum of understanding entered into between EPA, Interior and the Corps of Engineers to more closely scrutinize mountaintop mining permits for environmental harm. Whether this is merely a closer review of permitting and stream effects of mining, or a method of slowly cutting off permits for mountaintop mining, remains to be seen.

New Environmentalism In The New Republic

Ted Norhaus and Mike Shellenberger, founders of the Breakthrough Institute, have written a thought-provoking article in the New Republic about the nature of current environmentalism and what happens when good green intentions run up against hard times. George Will wrote about it extensively in one of his recent columns, although his take on the article may not have been exactly what the authors had in mind. I recommend both articles to you.

Disclosure - Mike Shellenberger is my cousin. I'll see him at the Yoder reunion this weekend. But you should still read his and Norhaus' material, because they're two of the most iconoclastic writers in the environmental movement.

Will Congress Regulate Gas Drilling Under the Safe Drinking Water Act?

There's talk in Congress about regulating oil and gas drilling under the Safe Drinking Water Act. This interest in Congress coincides with increased drilling in the Marcellus Shale plays in NY, PA and WV, as well as plays elsewhere like the Barnett in TX. The following article by Ian Talley was in the Wall Street Journal, and is being reprinted verbatim, and provides some context for the debate. One thing to keep in mind, though, is that the areas in which hydraulic fracking is happening are generally far below drinking water sources. The more immediate environmental problem is what to do with the produced water after it is drawn out of the well, as it is often high in chlorides and other total dissolved solids (TDS). Here in West Virginia most of this water is land applied or sent to an underground injection well, and therefore can't get into surface water or underground drinking water supplies. Other states, like PA, have allowed more surface water disposal, and have seen a corresponding increase in TDS in their streams.

)--U.S. lawmakers Tuesday unveiled a bill that industry warns could prevent development of trillions of cubic feet of natural gas by putting regulation of a key production technique under federal oversight.

It is unclear how much support the proposal could get in Congress or from the White House, but the oil and natural-gas industry has already geared up for a fight to oppose the provision given its potential impact on the sector.

The legislation would repeal an exemption for the process of "hydraulic fracturing" in the Safe Drinking Water Act that requires disclosure of the chemicals used the production process.
By forcing hydraulic water, sand and a small percentage of lubricating chemicals into unconventional types of reservoirs called tight sand and shale gas, companies are able to fracture underground rocks and release the trapped gas not traditionally accessible. States' offices, such as Pennsylvania's Department of Environmental Protection, currently regulate the 60-year-old practice.

Despite its history, "fracking" has gained recent attention as geologists have discovered massive unconventional natural-gas resources around the U.S., multiplying estimates of the nation's future production. For example, the Marcellus deposit that lies under Pennsylvania, Virginia, Ohio and New York is estimated to hold more than 500 trillion cubic feet, compared to total conventional natural-gas resource estimates in the U.S. of around 378 trillion cubic feet, according to the U.S. Geological Survey.

Critics of the exemption say federal oversight is needed to protect drinking-water supplies, but proponents say state regulation is sufficient. Industry officials say the EPA isn't prepared to administer oil and gas permitting and federal regulation could lead to long delays, court cases and possible permit rejections.

That's why companies such as Range Resources Corp. (RRC), EOG Resources Inc. (EOG), Devon Energy Corp. (DVN), Royal Dutch Shell PLC (RDSA) and Chesapeake Energy Corp. (CHK) are lobbying against the measure.

Anadarko Petroleum Corp. (APC) spokesman John Christinansen said given state oversight, federal regulation is unnecessary and could at the very least delay new development of unconventional natural gas. "It would result in higher energy costs because it will discourage production," he said.

Jay Ewing, the manager of completion and construction at Devon Energy's Barnett field in North Texas, says the ultimate fear of federal regulation "is totally eliminating hydraulic fracturing, and that would eliminate a lot of resources."

Pressed at a recent congressional hearing, Environmental Protection Agency Administrator Lisa Jackson said her office would review the EPA's previous decisions not to push for federal regulation.

Under Carol Browner, currently President Barack Obama's energy and climate czar, the EPA in the mid-1990s decided that federal regulation was unnecessary. "There is no evidence that the hydraulic fracturing at issue has resulted in any contamination or endangerment of underground sources of drinking water," Browner wrote in 1995 as head of the EPA in a letter rejecting federal oversight of a potentially precedent-setting case in Alabama.

In the House, the bill was introduced by Rep. Diana DeGette, D-Colo., and Rep. Maurice Hinchey, D-N.Y., and in the Senate, by Sen. Bob Casey, D-Pa., and Sen. Charles Schumer, D-N.Y.
Hinchey said the exemption "enabled energy companies to pump enormous amounts of toxins such as benzene and toluene into the ground that then jeopardize the quality of drinking water." Also, some environmentalists and lawmakers are concerned the water supplies needed for the fracking process could over-tap sources used for drinking.

But the natural-gas industry says that operators are required by law to report the chemicals they use to the state authorities and wouldn't be granted permits if their operations threatened public health, safety or supplies.

Devon's Ewing said the three main chemicals used in the process besides water and sand are guar - which is used in chewing gum - soap similar to what's used in dish detergent, and biocides that kill bacteria in the reservoir. Chemicals such as benzene can be released from the reservoir, but are contained and regulated by the state.

Industry officials also say most of the reservoirs are thousands of feet below drinking water tables, with massive rock barriers preventing any type of contamination.

Anadarko's Christiansen said "Since 1947, there's been a million applications of hydraulic fracturing and not a single documented case of water contamination credibly tied to fracking."
It is unclear how much support the bill will received in both chambers, as lawmakers have been so far unsuccessful in their attempts to include the legislation in energy bills considered in the key committees. Although House Energy and Commerce Committee Chairman Henry Waxman, D-Calif., has indicated he supports federal regulation, he didn't allow it to be added as an amendment to the energy and climate bill his panel passed last month, not wanting to upset the delicate compromise he had crafted.

The proposal also isn't included in the oil and gas section of the broad energy bill the Senate Energy and Commerce Committee is near completing.

Furthermore, it's unclear whether the Obama Administration would want to place a hurdle of any sort in front of natural gas development. Natural gas has much lower carbon dioxide emissions compared to oil and coal, and is vital to the administration's goal of cutting greenhouse gases in a low-carbon economy. In their congressional offices, both Obama and his now chief of staff Rahm Emanuel sponsored legislation encouraging natural gas vehicles, which would largely rely on unconventional resources.

Ocean Acidification the Next Lawsuit Subject?

According to the website Business Green, the Center for Biological Diversity filed a notice of intent to sue EPA under the Clean Water Act for failing to list the ocean off the state of Washington as an impaired water, due to ocean acidification caused by excessive carbon dioxide in the air. This was done under the total maximum daily load (TMDL) program, Section 303 of the CWA, which requires all states to list water bodies that aren't meeting water quality standards, and to prepare a plan for limiting discharges to the water bodies until they meet those standards. The TMDL program was originally conceived to reduce pollutant loading from storm water and process water discharges, but some of the most intractable problems are caused by air deposition of substances like mercury. Violations of water quality caused by air deposition, like acid rain, can't be addressed by the usual means of limiting point source and nonpoint source discharges to the waters.

Notices of intent to sue are filed 60 days before suit can be filed, to allow the EPA Administrator to take appropriate action. I doubt that, in the next 60 days, the Pacific Ocean will be listed on the 303(d) list for pH violations. Even if it is, what will the plan be for coming into compliance?

The Center should be careful what it asks for. Congress is already reportedly looking at overhauling the TMDL program because of problems like this one. Trying to control greenhouse gases through the TMDL program might be the sort of thing that exposes the difficulties and even absurdities that are inherent in both programs, and may lead to changes that make them more reasonable and, at the same time, less far reaching.

Nothing's Free, Even Tossing Trash Away

One of the costs of advanced society is ever more complex, and potentially toxic, trash. Take computers . . . please. They're full of metals and other substances that might qualify them as hazardous or toxic waste. All sorts of electronic materials contain metals, and compact fluorescent lamps have a smidgen of mercury in them. And yet people (and I mean me) don't want to properly dispose of them, so we try to give them away or just dump them in the trash, rather than pay someone to properly recycle them.

This article from the Pittsburgh Post Gazette points out part of the problem. Evidently someone in the Keystone State, and probably elsewhere, is taking computers and other electronic equipment and shipping them off to Third World countries, where they are disassembled in unsafe conditions, exposing workers to health hazards. The advantage is that it is much cheaper to do it that way rather than pay a more conscientious recycler to do the work in a place where there are worker health protections. Legitimate recyclers like Greenspan Computer Recycling are harmed when we take the easier, and less expensive option, of fobbing our waste off on someone who will do dangerous work for next to nothing. Keep that in mind when you're throwing away your next worthless item. And if you're looking for a place to recycle in West Virginia, call Carroll Cather at the WV DEP, 304 926-0499.

Fourth Circuit Rejects Mountaintop Mining Lawsuit Again

I haven't had a chance to read it, but the Fourth Circuit Court of Appeals recently refused to reconsider its decision to uphold a Corps of Engineers project review for a mountaintop mine. The Court took the unusual step of publishing its decision, and the concurring and dissenting opinions, which I have not had a chance to read.

You can also see Ken Ward's take on the decision.