EPA Adopts New Storm Water Rules For Construction Sites; Not Likely to Apply in West Virginia Until 2012

EPA has announced that it has developed new requirements for controlling and reducing pollutants in storm water that runs off construction sites. These changes will likely be incorporated in the WV DEP's general permit for storm water from construction sites when the permit is reissued in 2012. Here's the EPA press release:

) EPA Issues Rule to Reduce Water Pollution from Construction Sites The U.S. Environmental Protection Agency today issued a final rule to help reduce water pollution from construction sites. The agency believes this rule, which takes effect in February 2010 and will be phased in over four years, will significantly improve the quality of water nationwide.

Construction activities like clearing, excavating and grading significantly disturb soil and sediment. If that soil is not managed properly it can easily be washed off of the construction site during storms and pollute nearby water bodies.

The final rule requires construction site owners and operators that disturb one or more acres to use best management practices to ensure that soil disturbed during construction activity does not pollute nearby water bodies. In addition, owners and operators of sites that impact 10 or more acres of land at one time will be required to monitor discharges and ensure they comply with specific limits on discharges to minimize the impact on nearby water bodies. This is the first time that EPA has imposed national monitoring requirements and enforceable numeric limitations on construction site stormwater discharges.

Soil and sediment runoff is one of the leading causes of water quality problems nationwide. Soil runoff from construction has also reduced the depth of small streams, lakes and reservoirs, leading to the need for dredging.

More information: http://www.epa.gov/waterscience/guide/construction

Greenhouse Gas Reporting Rule Published

I'm more than a little late in reporting this, but EPA has proposed its greenhouse gas reporting rule. On October 30, 2009, EPA’s final mandatory greenhouse gas reporting rule was published in the Federal Register requiring reporting of greenhouse gas emissions from all sectors of the economy. The final rule applies to fossil fuel suppliers and industrial gas suppliers,
direct greenhouse gas emitters and manufacturers of heavy-duty and off- road vehicles and engines. The rule does not require control of greenhouse gases, rather it requires that sources above certain threshold levels monitor and report emissions. Attached is a good summary from Bingham McCutchen.

The final rule is effective on December 29, 2009.

You can access the final rule that was published in the Federal Register at:
http://www.regulations.gov/search/Regs/contentStreamer?objectId=0900006480a4e5fa&disposition=attachment&contentType=html

EPA’s Fact Sheet on the final rule: http://www.epa.gov/climatechange/emissions/downloads09/FactSheet.pdf

New NESHAPs Adopted for Area Sources

Anne Blankenship reports that EPA has issued final national emission standards for the control of hazardous air pollutants for nine area source categories in the chemical manufacturing sector:

• Agricultural Chemicals and Pesticides Manufacturing
• Cyclic Crude and Intermediate Production
• Industrial Inorganic Chemical Manufacturing
• Industrial Organic Chemical Manufacturing
• Inorganic Pigments Manufacturing
• Miscellaneous Organic Chemical Manufacturing
• Plastic Materials and Resins Manufacturing
• Pharmaceutical Production
• Synthetic Rubber Manufacturing

This final rule establishes emission standards in the form of management practices for each chemical manufacturing process unit as well as emission limits for certain subcategories of process vents and storage tanks. The rule also establishes management practices and other emission reduction requirements for subcategories of wastewater systems and heat exchange systems.

This final rule is effective on October 29, 2009.


The final rule can be accessed at: http://edocket.access.gpo.gov/2009/E9-25576.htm

More on the Marcellus Shale in West Virginia

The Marcellus Shale holds huge amounts of natural gas that can now be developed through horizontal drilling. Instead of just drilling vertically into the gas producing formation, which may be only a few feet thick, the drill stem can now be turned to drill horizontally through the formation, greatly increasing the area from which gas can be produced. Here's an article from today's Daily Mail on this topic. Note that West Virginia, unlike Pennsylvania, has a severance tax on natural gas, which allows producers a bigger profit in PA.

One of the greatest concerns expressed about natural gas development of tight shale formations like the Marcellus is the fracturing of rock, or "fracking," that allows the gas to flow more freely. Here's an article from the State Journal about the question of whether states or the federal government should oversee fracking.

Sustainable Development, One Inventor at a Time

It may seem counter intuitive, but development is the key to saving the world. As the literacy rate and employment opportunities increase, especially for women, the size of families drops, and resources that are no longer needed just to stay alive are diverted to discretionary spending, like environmentalism. It's hard to save the planet when you're just keeping yourself going.

Big development projects often end up lining the pockets of corrupt leaders, and the need for bottom-up development is so well known at this point that it doesn't require me to get up on a soapbox about it. Small things can make a big difference to those at the subsistence level. Things like the peanut huller developed by a retiree, Jock Brandis. It seems that women feed their families and make extra cash selling peanuts and other nuts, but hulling them is a time-consuming task. Brandis' sheller is easy to build of inexpensive materials, and he makes the plans freely available to all. It's only one of the things that the Full Belly Project is working on now. The Wall Street Journal has this article about Brandis.

Surprising End to Landmark Public Domain Case

Some of you may remember the case of Kelo v. New London, 545 US 469 (2005), in which the Supreme Court agreed that the City of New London could use eminent domain to acquire private property on behalf of a private entity, in this case Pfizer Corporation. It set off a firestorm of complaints about the use of public power to transfer property from one non-public entity to another. You can find a Wikipedia description of the case here.

The Washington Times reports that the homes owned by the Kelos and others that were condemned for use by Pfizer are now a vacant lot. Pfizer is closing its plant, and has never developed the property that it took from homeowners in the area.

Comparison of House and Senate Cap and Trade Legislation

Tom Boggs has passed to me, and I present for your consideration, the Congressional Research Service's side-by-side comparison of the House and Senate cap and trade bills. You can see it here.

I would say that cap and trade will never pass, given the real costs and the illusory benefits, but keep in mind that EPA has made the finding that carbon dioxide is a criteria pollutant. That triggers requirements for development of control technology for greenhouse gases like carbon dioxide and methane. At this point, EPA is only proposing to take action with regard to the largest sources of CO2, but that is a questionable move under the Clean Air Act. Truth be told, EPA would probably be only too glad to be required by a friendly lawsuit to begin regulation of smaller sources. Before that happens, though, there will be intense pressure on congressional Republicans to sign onto some form of legislation limiting CO2, if only to avoid more stringent restrictions that would otherwise go into effect.

Cap and Trade Debate Set for December 7 in Charleston

The Charleston Rotary Club is sponsoring a debate on cap and trade legislation and its effect on West Virginia's economy. Squaring off will be 2 well-recognized experts in the field, David Hawkins for the Natural Resources Defense Council and Pat Michaels of the Cato Institute. At the risk of misrepresenting the nuances of their positions, Hawkins is pro-legislation, and Michaels is opposed. It will be held December 7 at 6 pm at the University of Charleston's Geary Auditorium.

Cap and trade, for those of you not familiar with it, is a proposal before Congress to prevent global climate change by reducing the total amount of greenhouse gases (GHGs) emitted. Companies that have GHG emissions would be assigned stringent GHG permit limits, as well as a limited number of emission allowances. Companies would be required to meet their GHG permit limits by reducing greenhouse gas emissions, or by purchasing unused credits from other dischargers who have reduced emissions by more than they were required by their permits.

I hope the debaters will talk a little about climate change (pseudo)science as well, because the tide is turning against the semi-religious belief in the inevitability of global warming, but even if they're limited to cap and trade, each should be an able advocate for his position. You can see the flyer here.

Nutrient Standards To Be Set By EPA In Florida, Not Likely in West Virginia

Here is an article about a federal judge in Florida upholding a settlement between US EPA and environmental groups that requires EPA to step in and set criteria for nutrients in state waters. Nutrients are things like nitrogen and phosphorus that can contribute to excessive growth of algae and other plant life, which tend to suck up oxygen when they decay.

Ordinarily, EPA will take a stab at developing water quality criteria (think of it as the safe limit of pollutants that can be in water). For example, to protect aquatic life it will subject different species to different levels of a substance, like selenium, and determine the levels at which adverse results like impaired reproduction occur. Those criteria are then adopted by the states in their water quality standards, or the states justify some other criteria. Once adopted by the state, EPA approves or disapproves the water quality standards. If states don't make a decision one way or the other, or if EPA disapproves the state standard, EPA is supposed to step in and set criteria under the Clean Water Act.

In the case of nutrients, EPA decided that there were too many factors to weigh before safe levels of nutrients could be set. Some streams or lakes would respond to very low levels of nutrients before algae started to grow; others could tolerate large loadings with little adverse effect. Instead of doing one-size-fits-all studies to come up with acceptable levels of nutrients, EPA set some general regional parameters, but for the most part turned nutrient criteria-setting over to the states.

West Virginia has developed nutrient criteria for lakes, but EPA has not yet ruled on the proposed criteria, and is looking at additional data. See the EPA response to the lake criteria in this letter . The DEP has also done studies showing that the limiting factor for algae growth in West Virginia rivers is phosphorus, but no criteria are presently proposed. See the initial results of that study here.

For those interested in more information, here is a press release from EPA about a nutrient webinar:

1) Watershed Academy Webcast on Report of the State-EPA Nutrient Innovations Task Group
Nutrients have been identified as one of the top causes of water quality impairment in the United States. On Dec. 1, 2009, EPA’s Watershed Academy will present a Webcast highlighting the new State-EPA Nutrient Innovations Task Group report and related issues. This Webcast will present findings from the new report called An Urgent Call to Action: Report of the State-EPA Nutrient Innovations Task Group posted at www.epa.gov/waterscience.

Ephraim King, Director, Office of Science and Technology, in U.S. EPA’s Office of Water, will join us for this Webcast and will discuss the key findings of this report, which characterizes the scope and major sources of nutrients, and includes recommendations to address the issue. Other speakers will include Craig Cox, Midwest Vice President, Environmental Working Group, who will discuss effective ways to address nutrient pollution from agriculture. And finally, Walter Baker, Director, Utah Division of Water Quality in Utah’s Department of Environmental Quality will share successful approaches Utah is using to reduce nutrient pollution from agricultural livestock and municipal sewage treatment plants.

To register for this Webcast, visit: www.epa.gov/watershedwebcasts. EPA’s Watershed Academy Webcasts reach thousands of federal, state and local practitioners with the latest training on watershed management topics through convenient on-line training. The Webcasts build local, state and regional capacity to achieve measurable water quality improvements, targeted to meet Strategic Plan objectives. All EPA Webcasts are archived on the Watershed Academy Webcast Web page at www.epa.gov/watershedwebcasts. Webcast participants are eligible to receive a certificate for their attendance. Slide presentations are posted in advance and participants are encouraged to download them prior to the Webcast at www.epa.gov/watershedwebcasts.

EPA Finds No Imminent Threat at Sporn Plant Coal Ash Impoundment

EPA has evaluated a coal ash impoundment at the Philip Sporn Plant, located along the Ohio River in West Virginia, and has concluded that there is no imminent threat of failure. EPA believed there were similarities to the TVA coal ash impoundment that failed in December of 2008 and wanted some studies done to confirm the dam was safe. Here's the EPA press release, and a hyperlink to the EPA website page with studies and reports.

WASHINGTON – The U.S. Environmental Protection Agency (EPA) released a draft report and related materials concerning two coal ash impoundments at American Electric Power’s (AEP) Philip Sporn facility in West Virginia. Out of an abundance of caution and in the spirit of transparency, EPA notified West Virginia and Ohio public officials, first responders and American Energy and Power of concerns about the Philip Sporn facility on October 29. The agency took this step because a report done as part of the ongoing comprehensive review of dam integrity of coal ash impoundment sites found factors at the AEP Philip Sporn facility that are similar to the TVA Kingston facility that failed in December 2008. Though EPA does not believe the impoundments pose an imminent threat to the surrounding communities based on the draft report’s assessment and follow-up technical reviews, EPA issued an information request letter requiring the company to conduct several studies to assure the safety of these impoundments. The company is required to provide the results of those studies to EPA within 90 days. The company has agreed to perform the requested studies. The agency will continue to work with AEP and state and local officials and will use all necessary authority to assure the safety of the facility. The process of reviewing and responding to these reports normally takes a month or more. In this case, however, EPA expedited the process so the community had access to as much information as quickly as possible. Draft report and related materials: http://www.epa.gov/epawaste/nonhaz/industrial/special/fossil/surveys2/statement.htm

Legislative Commission On West Virginia State Water Resources to Meet Nov 17

Tom Boggs of the West Virginia Chamber of Commerce passes along this notice of the meeting of the Joint Legislative Oversight Commission on State Water Resources tomorrow.

The JOINT LEGISLATIVE OVERSIGHT COMMISSION ON STATE WATER RESOURCES will meet on November 17, 2009 4:00 p.m. to 6:00 p.m. in the Senate Judiciary Committee Room.
The agenda is as follows:
Call to Order
Roll Call
Adoption of Procedural Rules
Approval of Minutes for February, June, July, September and October 2009
Mike Stratton, Program Manager, West Virginia Department of Environmental Protection - Annual Report on the State Water Resources Management Plan.
Louis Bonasso, President, AOP Clearwater - discussion of AOP’s new water recycling plant which is now accepting Marcellus waste water.
Staff presentation of memos summarizing other states and West Virginia’s requirements for water use associated with Marcellus formation gas drilling operations.
Other Business

Too Many Deer

Charleston, and most of West Virginia, is overrun by deer. Deer are generally safer from predation in and around towns, and even allowing urban deer hunts does not adequately control them. The problem exists throughout the east. In Valley Forge National Historic Park, Pennsylvania the deer population has exploded, and they don't seem to have any better way of dealing with it than we do. A hunt is scheduled to reduce the deer herd, but is running into lawsuits.

West Virginia Supreme Court Re-Affirms Massey Decision

The third time wasn't a charm for Hugh Caperton, who has been trying to have his case against AT Massey Coal Co. decided in West Virginia. You may recall that this is the case where the United States Supreme Court ruled that WVSCA Chief Justice Brent Benjamin should have recused himself because his candidacy to the Court had been so strongly supported by Don Blankenship, CEO of Massey. This time Justice Benjamin was replaced by Senior Status Judge Holliday, but the result was the same.

Harman brought a tort action in Boone County, West Virginia, and was awarded $50 million, which judgment AT Massey appealed. The WV Supreme Court ruled, as it had before, that Caperton's mining company, Harman Mining, had agreed in the forum selection clauses of the relevant contracts that lawsuits would be brought in Virginia, where Harman had already been awarded $6 million in a contract action. The WVSCA remanded the case to Judge Hoke to dismiss with prejudice. The decision, and the lengthy procedural history, can be found here.

Frac Fluid Ingredients Publicly Available

Developing certain types of natural gas wells in West Virginia requires putting water into the gas-producing strata under high pressure, in order to fracture the strata and make gas flow more easily and in greater quantities. The water often has small amounts of additives that are there to make the frac fluid flow more easily and perform more efficiently. Companies that prepare the frac fluid additives often keep the exact mixtures a trade secret, in order to avoid providing information to their competitors. This has led to some persons alleging that unknown toxins are being introduced into drinking water as a result of gas drilling, especially in the Marcellus Shale. Some in Congress appear to want to change the Safe Drinking Water Act to subject fracking to Underground Injection Control regulations, which would be a great burden on oil and gas operators.

The fact is, the components of frac fluid additives are freely available. Attached is a great chart explaining exactly what is in the fluids, although not their precise composition. Also, any drilling rig using frac fluids will have a Material Safety Data Sheet for the frac fluids, explaining by chemical category what is in the additives. MSDSs are required for just about every chemical you'll find at any work location.

It is just as important to understand how wells are drilled in West Virginia and elsewhere. The Marcellus Shale and other conventional plays (those other than coalbed methane) are not drinking water formations. When boreholes go through drinking water strata , producers are required to insert casing that seals off the drinking water from the frac fluid that goes down and the produced water and gas that comes up. Producers are also required to test drinking water sources near the wells. These and other protections prevent contamination of water supplies. Similar controls apply in other states, as shown in this web page from Energy In Depth.

EPA Updates Enforcement and Compliance History Database

There's an abundance of information on the EPA website, although it can be a little difficult to navigate sometimes. I'm reminded of that by EPA's press release announcing that it has "released new information on EPA and state enforcement of hazardous waste and air regulations. In addition, the EPA posted data that allows the public, for the first time, to compare toxic releases with compliance data from facilities. This is part of EPA’s ongoing commitment to increase transparency and promote the public’s right to know by improving access to available data."

For those who are interested in how states are doing with enforcement of environmental laws, you could check Enforcement & Compliance History Online, which is an EPA database with data regarding enforcement and compliance activities broken down by individual facility, state, etc. It has information on all media and all EPA program types - RCRA, Clean Water Act, Clean Air Act, etc.

For those interested in what the state of West Virginia is doing, all enforcement compliance orders and settlements have to go to public notice before they can be finalized. If you have an email account you can get on the email mailing list and get notice of the orders from the DEP. When you receive the notices, and want an order to review, you can email the DEP and they'll email you the draft order.

Correcting My C8 Report Blog

Mea culpa. Here's an example of what happens when I assume, rather than read carefully. I had referred to Ken Ward's article on release of the C8 report last week, noted his statement that the report hadn't been posted on the Science Panel's web site, and inferred that he did not have the report. In fact, he had the report, even before it was up on the Science Panel's website. That may have left the erroneous impression that he made up the information he reported, which I did not intend. I assumed that he had gotten his information about the report in open court, at the time the report was filed. Here's what Ken sent me:



"I always enjoy your blog and learn from it ... But I thought I would
point out a pretty significant error.

You wrote (in this post,
http://wvenvironmental.blogspot.com/2009/10/c8-report-filed-with-court.h
tml) that:

"I have not seen the report, and evidently Ken Ward hasn't seen it
either, although his is the first story on the study."

I'm not sure what evidence you have to support your statement that I
hadn't seen the study. If you read my story, you'll see that I cite
numbers included in it and quoted directly from it. Not sure how I could
do that without having seen it.

And, in fact, I did see it before I wrote that story. I just did not
post it on our Web site, in large part because I was writing several
other pieces for our online editions and our print editions that day,
and did not have time to post it.

Perhaps you misinterpreted this paragraph:

"This latest study on C8 exposure and cholesterol in children was filed
in court, but had not been posted on the Science Panel's Web site or
otherwise publicized by the panel, at least as of late Friday
afternoon."

A careful reading, though, will show that all I wrote there was that the
C8 Science Panel hadn't posted the document on its website. Nowhere
there do I indicate that I had not seen the report. The point of the
paragraph is that the C8 Science Panel had done nothing to notify the
public in the Parkersburg area of this rather significant finding.

I'm sure you didn't mean it this way, but some readers may have
interpreted your post to mean you were alleging that I simply made up
what was in that story. Of course, that is a serious charge to make
against any journalist.

I would appreciate a correction posted on your blog." [End quotation]



He's right. That statement, though not ill-intended, was incorrect. Ken, consider me apologetic and red-faced.