Ken Ward of the Charleston Gazette wrote that a biologist at the WV Department of Environmental Protection, Doug Wood, drafted an internal memorandum stating that Randy Huffman, Secretary of the WV DEP, may have misled Congress in some testimony about mountaintop mining. That struck me as a bit odd - Huffman is a pretty straight shooter, and while he defends the mountaintop mining permits his agency issues, I would be shocked to learn that he intentionally misled anyone about the effects of those permits.
I was on the DEP website the other day and saw the response from the DEP. I think it pretty well explains the situation. I don't know Doug Wood, but Mandirola and Campbell are fair and independent guys who tend to state their minds. I doubt they'd be willing to just spout the party line, so I assume what they're saying is true.
“It is important to state that Cabinet Secretary Randy Huffman’s testimony to the members of the Senate Committee on Environment and Public Works was not misleading as stated in the Gazette article,” Mandirola said. “The sentence in his testimony that is the subject of the issue should not have been construed to mean that the only impact of valley fills was a diminished number of a certain genus of mayflies.“In fact, when read in its full context, the reference to mayflies was only made to reiterate West Virginia’s use of its multi-metric West Virginia Stream Condition Index for impairment determinations. This index, which has been used since 2002 with EPA’s approval, does not use mayflies as a stand-alone determinant of stream condition. Taken out of context, one could interpret this particular part of the testimony to mean mayflies are the only impacts from valley fills. This was clearly not the intent.”
Campbell said: “It’s easy to take this statement out of context, I’ve worked with this type of information for 10 years and I, too, misinterpreted the statement when speaking with the Gazette.”
Doug Wood, the DEP biologist who wrote the memo, stated: “I did not say, nor do I believe, the Cabinet Secretary was misleading Congress. My memo’s intent was to help him be better informed on the effects of large valley fill discharges.”
Monday, August 31, 2009
Saturday, August 22, 2009
WV District Court Allows Clean Water Act, SMCRA Citizen Suit to Proceed
Judge Copenhaver, US District Court judge for the Southern Dist of WV, issued a decision earlier this week that will be of interest to all holders of NPDES permits. The case is Sierra Club et al v. Powellton Coal Company, Civil Action No. 2:08-1363 and it can be found here. Judge Copenhaver concluded that a citizen suit against a coal company, seeking penalties for failure to comply with its NPDES permits, was not precluded by the fact that the WV Department of Environmental Protection had begun an administrative penalty proceeding to assess fines for the same violations.
Citizen suits under the Clean Water Act can only be brought if notice is given to the violator, the State and the EPA Administrator 60 days before the lawsuit is filed. 33 USC 1365(b). If the State initiates and is "diligently prosecuting" its own civil or criminal action before the 60 days expires, however, the citizen suit is precluded. The rule is different if the State has brought an administrative action. In that event, the state administrative action has to be of a type comparable to EPA's administrative penalty process, and the administrative action has to begin before the citizens file their notice of intent to bring an action. The requirements are set out at 33 USC 1319(g)(6) in a very poorly written, confusing section of the Clean Water Act, which I have oversimplified in an attempt to render it intelligible.
Judge Copenhaver ruled that the West Virginia administrative penalty process was not sufficiently similar to the EPA administrative process, and therefore the citizen suit was not precluded. (This relieved the judge of having to respond to the plaintiffs' 2 other allegations, that the state action was not timely and was not being diligently prosecuted.) He stated that, “[i]n light of Smithfield Foods, and because West Virginia law does not provide for the assessment of administrative penalties without the violator’s consent, the court finds that West Virginia law is not comparable to section 309(g)."
He went on to consider whether the plaintiffs could also proceed with their citizen suit under the Surface Mining Control and Reclamation Act (SMCRA), and decided that they could. Surface mine permits issued under SMCRA have conditions requiring the mining company to comply with CWA effluent limits. Powellton had argued that allowing a citizen suit under SMCRA that was premised on violation of CWA effluent limts would run contrary to Section 702 of SMCRA, which prohibits interpreting SMCRA in a way that would modify the CWA. If the effluent limits were enforced differently under SMCRA than the CWA, Powellton argued, an impermissible conflict would arise. While Judge Copenhaver agreed there could be situations where such a conflict would arise, thereby precluding the SMCRA citizen suit, he decided that in this case that would not happen, and the citizen suit under SMCRA could proceed.
The finding by Judge Copenhaver that the WV administrative penalty policy is not similar to EPA's is an important one that every NPDES permit holder should keep in mind. An administrative penalty action will not be a bar to a citizen suit unless it is completely resolved prior to notice of the suit being given.
Citizen suits under the Clean Water Act can only be brought if notice is given to the violator, the State and the EPA Administrator 60 days before the lawsuit is filed. 33 USC 1365(b). If the State initiates and is "diligently prosecuting" its own civil or criminal action before the 60 days expires, however, the citizen suit is precluded. The rule is different if the State has brought an administrative action. In that event, the state administrative action has to be of a type comparable to EPA's administrative penalty process, and the administrative action has to begin before the citizens file their notice of intent to bring an action. The requirements are set out at 33 USC 1319(g)(6) in a very poorly written, confusing section of the Clean Water Act, which I have oversimplified in an attempt to render it intelligible.
Judge Copenhaver ruled that the West Virginia administrative penalty process was not sufficiently similar to the EPA administrative process, and therefore the citizen suit was not precluded. (This relieved the judge of having to respond to the plaintiffs' 2 other allegations, that the state action was not timely and was not being diligently prosecuted.) He stated that, “[i]n light of Smithfield Foods, and because West Virginia law does not provide for the assessment of administrative penalties without the violator’s consent, the court finds that West Virginia law is not comparable to section 309(g)."
He went on to consider whether the plaintiffs could also proceed with their citizen suit under the Surface Mining Control and Reclamation Act (SMCRA), and decided that they could. Surface mine permits issued under SMCRA have conditions requiring the mining company to comply with CWA effluent limits. Powellton had argued that allowing a citizen suit under SMCRA that was premised on violation of CWA effluent limts would run contrary to Section 702 of SMCRA, which prohibits interpreting SMCRA in a way that would modify the CWA. If the effluent limits were enforced differently under SMCRA than the CWA, Powellton argued, an impermissible conflict would arise. While Judge Copenhaver agreed there could be situations where such a conflict would arise, thereby precluding the SMCRA citizen suit, he decided that in this case that would not happen, and the citizen suit under SMCRA could proceed.
The finding by Judge Copenhaver that the WV administrative penalty policy is not similar to EPA's is an important one that every NPDES permit holder should keep in mind. An administrative penalty action will not be a bar to a citizen suit unless it is completely resolved prior to notice of the suit being given.
Friday, August 21, 2009
Arctic Ice Doing Fine, Thank You
We're told that one of the surest signs of anthropogenic global warming is the reduction of the ice cover in the Arctic Ocean and on Greenland. Except that it isn't getting any thinner. As Dr. Martin Herzberg reports, the ice is about as thick as it's ever been for the past 7 years or so, and shows no indication of significant decline. He lays out the New York Times for its biased and nonscientific reporting, noting, among other things, that far from a sudden and precipitous melt off, "[t]he data show a 4 % decline in the yearly average Arctic ice cover from 2002 to 2007, and a 3 % increase in Arctic ice cover from 2007 to today."
(Lest you think Dr. Herzberg is just a right wing flamer, he also takes the Times to task for accepting the Bush Administration's statements regarding Saddam Hussein's weapons of mass destruction without independent verification.)
If you're looking for the opinion of someone who is neither a global warming skeptic nor advocate, you might want to check out this explanation of sunspot activity. Apropos of this blog, he also notes that the arctic ice melted unusually fast in July due to southerly currents that were stronger than before, not an overall increase in air or ocean temperature.
What got me started on this thread was Greenpeace stating that the Arctic would be ice free by 2030. You can see the press release here. Gerd Leipold, described as the outgoing head of Greenpeace, had to admit that its claims that the ice would be gone by 2030 was an outrageous fib. The admission was made by Greg Leipold during a BBC interview. Don Surber of the Charleston Daily Mail caught it, too.
(Lest you think Dr. Herzberg is just a right wing flamer, he also takes the Times to task for accepting the Bush Administration's statements regarding Saddam Hussein's weapons of mass destruction without independent verification.)
If you're looking for the opinion of someone who is neither a global warming skeptic nor advocate, you might want to check out this explanation of sunspot activity. Apropos of this blog, he also notes that the arctic ice melted unusually fast in July due to southerly currents that were stronger than before, not an overall increase in air or ocean temperature.
What got me started on this thread was Greenpeace stating that the Arctic would be ice free by 2030. You can see the press release here. Gerd Leipold, described as the outgoing head of Greenpeace, had to admit that its claims that the ice would be gone by 2030 was an outrageous fib. The admission was made by Greg Leipold during a BBC interview. Don Surber of the Charleston Daily Mail caught it, too.
Wednesday, August 19, 2009
EPA and the High Hazard Dams
EPA has recently amended its list of high hazard coal refuse dams, and you can find out more about it here. Some of them are in West Virginia. But it is worth pointing out that these are not dams that present a high hazard because they are likely to fail. The dams in question are generally designed to high standards, and are unlikely to cause damage to downstream property owners. The designation merely means that, if they fail, significant damage or loss of human life could result. By this definition, the Hoover and Columbia Dams, and thousands of others in the country, are high hazard dams. As EPA explains it,
The National Inventory of Dams hazard potential ratings address the potential consequences of failure or misoperation of the dam. A high hazard potential rating indicates that a failure will probably cause loss of human life; the rating is not an indication of the structural integrity of the unit or the possibility that a failure will occur in the future; it merely allows dam safety and other officials to determine where significant damage or loss of life may occur if there is a structural failure of the unit. EPA’s assessment of the facilities that have units with high hazard potential ratings continues to be an Agency priority. EPA plans to make public the results of our assessments as soon as they are completed.
In short, these dams are not listed because coal ash itself presents some particular hazard, but because any liquid piled up behind a dam has potential energy that could cause damage if released to where people are located.
The National Inventory of Dams hazard potential ratings address the potential consequences of failure or misoperation of the dam. A high hazard potential rating indicates that a failure will probably cause loss of human life; the rating is not an indication of the structural integrity of the unit or the possibility that a failure will occur in the future; it merely allows dam safety and other officials to determine where significant damage or loss of life may occur if there is a structural failure of the unit. EPA’s assessment of the facilities that have units with high hazard potential ratings continues to be an Agency priority. EPA plans to make public the results of our assessments as soon as they are completed.
In short, these dams are not listed because coal ash itself presents some particular hazard, but because any liquid piled up behind a dam has potential energy that could cause damage if released to where people are located.
Hydrogen Conference Held in Charleston
Daily Mail reporter Michelle Saxton reports today on the results of the 5th Annual Hydrogen Implementation Conference in Charleston. There was the usual praise for hydrogen's potential, as well as talk about the potential drawbacks, most notably the lack of infrastructure for refilling hydrogen vehicles. The conference was sponsored by the Mountain States Hydrogen Business Council and featured appearances by several state political heavyweights, including Gov. Manchin and Rep. Capito.
It wasn't immediately clear to me whether the vehicles that were being touted were burning hydrogen instead of gas, or using it to power a fuel cell. I assume the former, since there aren't that many fuel cell vehicles available, but plenty of internal combustion engines that can be retrofitted to burn hydrogen.
It wasn't immediately clear to me whether the vehicles that were being touted were burning hydrogen instead of gas, or using it to power a fuel cell. I assume the former, since there aren't that many fuel cell vehicles available, but plenty of internal combustion engines that can be retrofitted to burn hydrogen.
Monday, August 17, 2009
Check Out West Virginia Business Litigation Blog
The best blog covering West Virginia civil litigation is published by Jeff Mehalic, who operates the West Virginia Business Litigation. I write on a pretty narrow topic, but Jeff's is much more comprehensive, and he provides a good summary of the decisions in WV federal and state courts that should be accessed by anyone who has an interest in WV civil litigation. Please check him out.
Evidently There's No Good Place to Put Power Production
Sen. Diane Feinstein gives us an example of why it is going to be difficult to site any type of power production, even renewables, in the future. She is opposing solar energy projects in the Mojave desert. As the LA Times reported, this is an example of how hard it is going to be to realize Pres. Obama's dream of expanded generation from renewables.
All of this makes gas-fired and coal-fired plants, putting out lots of power from a relatively small area, look like a reasonable part of the energy mix to some of us.
These are solar thermal plants, which use mirrors to concentrate light to heat a medium which is then used to heat water to produce steam and drive a turbine. They cover hundreds of acres, and would necessarily have some impact on the desert. But to paraphrase the Governator, if you can't put solar plants in the desert, where can you put them? Anyone who has been in that part of the country will realize there is a lot of sun-baked desert there, and a few thousand acres won't be missed.
I know, I know, the answer is conservation. But the trouble is we will need additional sources of power if growth is to continue. And low cost sources of power, as we all hope solar eventually will be, is not going to reduce the need for power sources. In fact, low cost power only drives the market for more power-guzzling stuff. It's only expensive power, which no politician wants to support, that would dampen usage.
All of this makes gas-fired and coal-fired plants, putting out lots of power from a relatively small area, look like a reasonable part of the energy mix to some of us.
These are solar thermal plants, which use mirrors to concentrate light to heat a medium which is then used to heat water to produce steam and drive a turbine. They cover hundreds of acres, and would necessarily have some impact on the desert. But to paraphrase the Governator, if you can't put solar plants in the desert, where can you put them? Anyone who has been in that part of the country will realize there is a lot of sun-baked desert there, and a few thousand acres won't be missed.
I know, I know, the answer is conservation. But the trouble is we will need additional sources of power if growth is to continue. And low cost sources of power, as we all hope solar eventually will be, is not going to reduce the need for power sources. In fact, low cost power only drives the market for more power-guzzling stuff. It's only expensive power, which no politician wants to support, that would dampen usage.
Friday, August 14, 2009
Chesapeake Bay TMDL Will Affect West Virginia
It looks like EPA is moving ahead with a Total Maximum Daily Load (TMDL) (or something like it) to reduce nutrients flowing into the Chesapeake Bay. If so, the TMDL would place enforceable limits on point source dischargers, and require best management practices from nonpoint sources, to reduce nitrogen and phosphorus loading. As the Shenandoah and Potomac run by and through WV before running to the Bay, we can expect to see limits imposed on WV POTWs (aka sewage facilities) and
Already the interested parties are lining up to make certain someone else's ox gets gored with the limits. Farmers point to suburbanites who overfertilize their yards, POTWs claim they can't afford the tertiary treatment required, and no one wants to take responsibility for the air deposition that contributes to nutrient loading.
The Chesapeake is quite a treasure. It has been the subject of more "this time we'll fix it" solutions than I can count. I hope this one works out.
You can check out articles from Forbes and the Southern Maryland News
Already the interested parties are lining up to make certain someone else's ox gets gored with the limits. Farmers point to suburbanites who overfertilize their yards, POTWs claim they can't afford the tertiary treatment required, and no one wants to take responsibility for the air deposition that contributes to nutrient loading.
The Chesapeake is quite a treasure. It has been the subject of more "this time we'll fix it" solutions than I can count. I hope this one works out.
You can check out articles from Forbes and the Southern Maryland News
Mountaintop Mining Permit Approved by EPA
When the Obama EPA took the unusual step of reviewing the 404 permits issued by the Corps to certain mountaintop mining sites, it was widely assumed that it would eventually veto the permits. However, the EPA recently approved one of the six permits it had been reviewing, allowing all 8 valley fills to be constructed. Ken Ward wrote about the permit issuance, although there is not much more to go on - there is apparently no public record explaining the EPA's decision.
Subscribe to:
Posts (Atom)
