EPA to Hold Hearing In Charleston On Arch Coal's Spruce No. 1 Mine

This notice just came in from EPA about a public hearing to be held in Logan County regarding the Spruce No. 1 mine. In my opinion, the comments won't change a thing. EPA will axe this permit no matter how well it's defended or justified.

PHILADELPHIA (April 27, 2010) -- The U.S. Environmental Protection Agency today announced that it will hold a public hearing regarding its proposal under the Clean Water Act to significantly restrict or prohibit mountain top mining at the Spruce No. 1 surface mine in Logan County, W. Va. The project was permitted in 2007 and subsequently delayed by litigation. The Spruce No. 1 mine would bury over 7 miles of headwater streams, directly impact 2,278 acres of forestland and degrade water quality in streams adjacent to the mine.

EPA’s proposed determination comes after extended discussions with the company failed to produce an agreement that would lead to a significant decrease of the environmental and health impacts of the Spruce No. 1 mine.

The purpose of the public hearing is to obtain public testimony or comment on EPA’s proposed 404 (c) action on the Spruce No. 1 Mine project.

WHO: U.S. Environmental Protection Agency Region III representatives

WHAT: Public hearing on EPA proposal for Spruce No. 1 surface mine in

Logan County, W. Va.

WHEN: May 18^th, 2010 at 7:00 p.m.

WHERE: Charleston Civic Center (South Hall)

200 Civic Center Dr., Charleston, W.Va. 25301

Registering ahead of time is recommended:

Advance sign up is not required to attend or speak at the public hearing. However, because of the large turnout expected, EPA is recommending that people wishing to attend the public hearing, and especially those who wish to speak, sign up in advance. People wishing to sign up in advance can do so over the internet by going to http://www.epa.gov/region3/mtntop/spruce1hearing.html and clicking on the link, or by calling 877-368-3552.

To accommodate as many speakers as possible, each speaker will be limited to two minutes. There also will be an opportunity to sign up on-site the day of the public hearing. Speakers at the public hearing will be in order of sign up.

In addition, people wishing to provide comment may do so in writing. If you would like to submit written comments you may do so at the public hearing or on-line at www.regulations.gov (search for EPA-R03-OW-2009-0985).

More information on Clean Water Act Proposed Determination:

The Clean Water Act gives EPA authorization to deny the Spruce No. 1 Mine permit or add restrictions that the mine owner would be required to follow. The part of the Clean Water Act that grants this authorization is known as 404 (c). This section authorizes EPA to restrict or prohibit placing certain pollutants in streams, lakes, rivers, wetlands and other waters if the agency determines that the activities would result in “unacceptable adverse impacts” to the environment, water quality, or water supplies.

This authority applies to proposed projects as well as projects previously permitted under the Clean Water Act. A final decision to restrict or prohibit the Spruce No.1 Mine will be made at a later date by EPA’s national headquarters based on a recommendation from the regional administrator of EPA’s mid-Atlantic region, public comments, and discussions with the Army Corps of Engineers and the Mingo Logan Coal Company, the mine owner. Relevant documents, including the EPA regional administrator’s proposed determination can viewed on EPA’s website at www.epa.gov/region3/mtntop/spruce1.html.

Link to EPA Press Release on Spruce Mine Proposal:

http://yosemite.epa.gov/opa/admpress.nsf/0/D19F832B77DBB0AF852576F200567BA5

Supreme Court To Decide Injunctive Relief Under NEPA

This posting from the Akin Gump law firm, written by Josh Patashnik of Stanford Law School

Today in Monsanto Co. v. Geertson Seed Farms (No. 09-475), the Court will once again consider what injunctive relief a district court may order when it finds a procedural violation of a federal environmental statute. Specifically, the case presents the question of what showing is required in a suit under the National Environmental Policy Act (NEPA) to satisfy the “likelihood of irreparable harm” prong of the Court’s four-part test – articulated most recently in Winter v. NRDC (2008) – for the issuance of a permanent injunction.

This case could have important ramifications for mountaintop removal lawsuits where NEPA violations are alleged. You can visit the blog post here.

Kanawha County Recycling Electronic Materials

Norm Steenstra, a firebrand of the West Virginia environmental movement, is continuing to do great work at the Kanawha County Solid Waste Authority. His staff is now accepting electronic materials, which in the past have been difficult to dispose. He and Kasey Russell, who is a Charleston City Council member on the Environmental and Recycling Committee, are hoping to expand recycling activities in Charleston.

Are Potato Chips More Carbon-Intensive than Concrete?

On a per-pound basis, potato chips are much worse greenhouse gas villains than cement, but that's only part of the story. Lies, damned lies, and statistics.

Stewart Brand's Four Environmental Heresies

Stewart Brand, the creator of the Whole Earth Catalogue (those of us over 50 remember it), has a presentation in which he advocates 4 environmental heresies - that cities are green, nuclear power is good, genetically modified foods are a boon, not a curse, and geoengineering is the way to stop climate change. I'm not a believer in anthropogenically-caused climate change, but that doesn't prevent the rest of the presentation from being fascinating. Here's some of what what Mike Shellenberger says about it:

You don’t have to agree with all of this. The geoengineering proposal he offers makes me as nervous as the Superfreakonomics proposal (though research on it is a no-brainer). On geoengineering he warns, “If we taboo it completely we could lose civilization.” And though I appreciate Stewart’s sense of urgency, I don’t care for the apocalyptic rhetoric.

But these are really quibbles. His overall presentation of how to create a low-carbon energy-powered world that supports the emergence of the vibrant global South is inspiring, provocative, and merits a much wider discussion in the press than we have seen to date. I assume and hope the book will be widely reviewed, and Brand widely profiled.

There’s tons of surprises in it. I learned of the key role cities play in reducing birth rates. The migrating poor “don’t even have to get rich and the population drops.” Later he says, “Nuclear energy has done more to dismantle nuclear weapons than anything else.” Half of our nuclear electricity (which is 20 percent of our electricity) is from dismantled Russian nuclear warheads, soon to be joined by U.S. dismantled warheads.

There are only three low-carbon baseload power sources: hydro, nuclear and — are you listening Marty Hoffert? -- space solar. The new nuclear plants are far, far more sophisticated than the ones we had 50 years ago. Many countries are, happily, buying these new reactors, including micro-reactors.

On biotech, Brand is blunt: “My fellow environmentalists have been irrational, anti-scientific, and very harmful.” They have blocked biotech’s spread in the place that has needed it most, Africa. But the continent “has finally gotten out from under the thumb of Greenpeace Europe and Friends of the Earth, and biotech is moving rapidly through Africa.” The key bioethicist organization has taken up biotech twice, he says. Both times they said it was “moral imperative” to make biotech more widely available.

He updates the words that Ted and I quoted in the last chapter of Break Through.

“The first words of the Whole Earth Catalogue were ‘We are as gods and might as well get good at it.’ The first words of Whole Earth Discipline are ‘We are as gods and have to get good at it.’”

On the back of “The Whole Earth Discipline,” Paul Hawken says his mind was changed by Brand.

I can see why.

EPA Proposes to Remove Saccharin from Hazardous Waste Listings

Those of you who remember the saccharin scare of 30 or so years ago will be interested in this recent decision by EPA. At that time, saccharin was believed to cause cancer in mice, when given to them in huge quantities. It was eventually given limited approval for continued use as a food additive, but it had to handled as a hazardous waste when it was disposed. Looks like it's alright after all.


WASHINGTON – The U.S. Environmental Protection Agency (EPA) is proposing a rule to remove saccharin and its salts from the agency’s lists of hazardous wastes, hazardous constituents and hazardous substances because it is no longer considered a potential hazard to human health. These lists are used to identify hazardous substances at sites across the country that need to be properly and safely managed. Saccharin is a white crystalline powder used as an artificial sweetener and can be found in diet soft drinks, chewing gum and juice.

Since the 1980s, saccharin was included in EPA’s lists of hazardous wastes, hazardous constituents, and hazardous substances because it was identified as potentially causing cancer in people. In the late 1990s, the National Toxicology Program and the International Agency for Research on Cancer re-evaluated the available scientific information on saccharin and its salts and concluded that saccharin and its salts are not potential human carcinogens. Because the scientific basis for remaining on EPA's lists no longer applies, the agency is issuing a proposed rule to remove saccharin and its salts from the list.

The public comment period will be open for 60 days after the proposal is published in the Federal Register.


More information about the proposal: www.epa.gov/waste/hazard/wastetypes/wasteid/saccharin/index.htm

EPA Announces $800,000 In Brownfields Grants For West Virginia

PHILADELPHIA (April 21, 2010) -- The U.S. Environmental Protection Agency announced $800,000 in brownfields grants to help assess and clean up abandoned industrial properties in West Virginia.

"Brownfields initiatives demonstrate how environmental protection and economic development work hand-in-hand," said Shawn M. Garvin, regional administrator for EPA's mid-Atlantic region. "Along with generating jobs, these grants will help West Virginia communities convert vacant industrial properties into assets for the community, the environment, and the economy."

The West Virginia grants include:

• $200,000 to the Fayette County Commission to assess and prioritize brownfields properties throughout Fayette County, an area that has a seen a steep decline in industrial activity related to coal mining, hardwood timber harvesting and processing, and rail transportation. To date, there are an estimated 400 brownfields properties identified by the county as needing attention.

• $200,000 to the city of Nitro to assess and update the city’s brownfields sites. Downsizing of the chemical industry has led to significant decline in population, increased unemployment and abandoned industrial properties. To date, 54 underused and vacant brownfields sites have been identified in Nitro. Brownfield assessments will provide the city with a more thorough inventory of contaminated sites that have potential for reuse as small-scale commercial properties, greenspace, and recreational facilities.

• $200,000 to the city of Parkersburg to assess and prioritize brownfields properties in Parkersburg, especially in the downtown area where plant closings have left abandoned properties and contributed to increased unemployment. The brownfields assessments are expected to help facilitate cleanups and create economic opportunities for the city.

• $200,000 to the West Virginia Department of Environmental Protection to assess properties along the historic U.S. Route 60 Midland Trail, a national scenic byway located along a 119-mile trail in the Appalachian Mountains. Since the early 1900s, the economies of the 29 towns and rural communities along the trail relied on the bituminous coal, timber, and petrochemical industries. Major job losses in these industries and construction of Interstate 64, which shifted travelers away from the trail, have caused serious economic problems. The area’s population has declined, and the scenic trail has been left with many closed and abandoned businesses, including gas stations. Brownfields assessments will clarify conditions at the sites and help facilitate reuse of the sites for historical interpretive stops along the trail and attract tourism and tourism-related jobs to the area.

The brownfields program encourages redevelopment of America’s estimated 450,000 abandoned and contaminated waste sites. Since the beginning of program in 1995, EPA has awarded 1,702 assessment grants totaling over $401 million, 262 revolving loan fund grants totaling over $256.7 million, and 655 cleanup grants totaling $129.4 million.

As of March 2010, EPA’s brownfields assistance has leveraged more than $14 billion in cleanup and redevelopment funding and 61,277 jobs in cleanup, construction, and redevelopment. Assessments have been performed on 15,135 properties and 458 properties have been cleaned up.

Additional information on the EPA brownfields program is available at http://www.epa.gov/brownfields/ and additional information on grant recipients is available at http://www.epa.gov/brownfields/grant_info/index.htm .

West Virginia State Bar Clarifies Pro Hac Vice Rule

Bob Coffield, dean and godfather of WV legal bloggers, posted this explanation of the State Bar's recent (last month) clarification of the pro hac vice rules for out- of-state attorneys. Worth a look if you're working with an attorney from another state.

Meeting Planned for Cheat River TMDL

The state Department of Environmental Protection will conduct a public meeting pertaining to Total Maximum Daily Load (TMDL) development for impaired streams in the Cheat Watershed. The meeting is scheduled for 6:30 p.m., April 26 at the Tucker County Senior Center, 206 Third St., in Parsons, W.Va.

The meeting will discuss the pollution reduction strategies for restoring water quality in the streams selected for TMDL development.

A TMDL is a plan of action used to clean up streams that are not meeting water quality standards. During the meeting, the DEP will present its plans for allocating pollutant loads among various sources. After consideration of public comments, the DEP will make final allocation decisions and develop draft TMDLs. Draft TMDLs will be presented for public comment and an additional public meeting will be held at that time. TMDLs are scheduled to be approved by the Environmental Protection Agency no later than Sept. 30, 2010.

For more information about this meeting, please contact Steve Young at (304) 926-0495. For more information on TMDLs, go to www.dep.wv.gov/WVTMDL.


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State Climate Change Compacts Threatened By Federal Legislation

Some states didn't wait for cap and trade legislation to pass Congress; they went ahead with regional pacts and started charging power plants for each ton of carbon emitted. With Sens. Kerry, Lieberman and Graham indicating they'll introduce a climate and energy bill in the Senate soon, supporters of those regional programs are concerned they'll be preempted. That would take significant dollars out of state coffers, money that was being used to fund budget deficits, not pay for green energy development, in many cases. West Virginia is not, and is not likely ever to be, a member of one of these state compacts.

Steve Jones of the Marten Law Firm has a nice summary of the regional cap and trade groups, and the status of the agreements, here.

Youth Environmental Day Set For May 15

The 47th annual Youth Environmental Day is scheduled for Saturday, May 15, 2010 at North Bend State Park in Cairo, W.Va. The event, which draws more than 1,000 young people from across the state each year, is sponsored by the West Virginia Department of Environmental Protection.

Co-sponsors include Quad Graphics, Inc., Toyota Motor Manufacturing of West Virginia, Inc., Go Mart Corporation, the West Virginia Coal Association, Pepsi Cola and Waste Management.

On Friday evening, May 14, participants camping overnight will have a short program followed by a movie at 8 p.m. at North Bend’s Shelter No. 3. The Youth Environmental Day awards ceremony will be held Saturday, May 15, also at Shelter No. 3 and will begin at 10:30 a.m. with a parade of youth groups. Invited to attend are Randy Huffman, DEP cabinet secretary; Kathy Cosco, DEP communications director; Danny Haught, REAP chief; Pat Nestor, West Virginia University Extension Service; Steve Jones, superintendent of North Bend State Park, and others.

Appearances will be made by Smokey the Bear, Eddie Eagle, Ralph the Recycling Raccoon, Eco the Owl, and Thunder, the American Bald Eagle from the Raptor Rehabilitation Center in Morgantown.

Awards totaling more than $11,000 will be presented on Saturday. Youth group members will receive these awards for their participation in community environmental projects that include litter cleanups, recycling drives, school beautification projects, tree planting, backyard composting, wildlife management, watershed protection and much more.

“The work these young people do is inspiring,” Secretary Huffman said. “They are making contributions toward a better environment for all West Virginians through projects that enhance their communities.”

Many exhibits also will be on display. There will be a fishing derby, volleyball game, recycling crafts and a hike on the rail trail following the awards presentation at 3 p.m. A dance is scheduled at Shelter 3 Saturday night at 8.
For more information about Youth Environmental Day, please call Diana Haid at 304-926-0499, Ext. 1114 or e-mail diana.k.haid@wv.gov .

Office of Surface Mining Developing New Rule

Coal is about to get squeezed harder by yet another federal agency. Ry Rivard reports in the Daily Mail that the US Department of the Interior Office of Surface Mining and Enforcement is working on a new rule that could restrict surface mining in Appalachia. One change being considered is in the manner of applying the stream buffer zone rule, which allows no mining or placement of fill within 100 feet of a stream. Because that is difficult to accomplish in Appalachia, waivers are routinely allowed, which may not be the case under the new rule.

The new rule may also require greater adherence to the requirement that mine sites be returned to their approximate original contour (AOC). Waivers from AOC save coal companies money, and they also leave in place land that is flatter and easier to develop than the hills that stood there before. In West Virginia, relatively flat land that is out of a floodplain is not abundant, and is useful for development. It's also better for growing trees, and it would be great if AOC could be adjusted to allow greater growth of hardwood forests, instead of pasture land.

The agency is meeting with interested parties now, with a draft rule expected sometime in February.

EPA Finalizes the 2008 National U.S. Greenhouse Gas Inventory

WASHINGTON – The U.S. Environmental Protection Agency (EPA) has released the15th annual U.S. greenhouse gas inventory report, which shows a drop in overall emissions of 2.9 percent from 2007 to 2008. The downward trend is attributed to a decrease in carbon dioxide emissions associated with fuel and electricity consumption.

Total emissions of the six main greenhouse gases in 2008 were equivalent to 6,957 million metric tons of carbon dioxide. The gases include carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons and sulfur hexafluoride. Though overall emissions dropped in 2008, emissions are still 13.5 percent higher than they were in 1990.

The Inventory of U.S. Greenhouse Gas Emissions and Sinks: 1990-2008 is the latest annual report that the United States has submitted to the Secretariat of the United Nations Framework Convention on Climate Change. The convention sets an overall framework for intergovernmental efforts to tackle the challenge posed by climate change. EPA prepares the annual report with experts from multiple federal agencies and after gathering comments from a broad range of stakeholders across the country.

The inventory tracks annual greenhouse gas emissions at the national level and presents historical emissions from 1990 to 2008. The inventory also calculates carbon dioxide emissions that are removed from the atmosphere by “sinks,” which occurs through the uptake of carbon by forests, vegetation and soils. More information: http://www.epa.gov/climatechange/emissions/usinventoryreport.html

Obama EPA Backs Bush Legal Determination on Greenhouse Gases

Politics and practicality make strange bedfellows. On April 2, 2010 EPA published a memorandum supporting, and even expanding in some ways, a memorandum that was published in the waning days of the Bush Administration that explained why greenhouse gases were not subject to regulation in Clean Air Act permits. That earlier memo had drawn a lot of fire from environmentalists, because it seemed a blatant attempt to avoid the Supreme Court's determination that CO2 is a pollutant, and that it had to be regulated as such if EPA determined that it presented a danger to human health and welfare. Once a pollutant is regulated, it has to be controlled in air pollution permits.

In December of 2009 EPA issued its endangerment decision, which led environmentalists to believe that CO2 limits should be placed in air permits immediately. That would have been disastrous, as CO2 is such a ubiquitous "pollutant" that regulating it would have created a nightmare for state and federal permit writers. Instead, EPA found it wiser to agree with the Bush Administration that imposition of permit limits for greenhouse gases does not kick in until GHG controls are put into effect for a source category - merely being a pollutant that should be regulated is not enough to result in immediate permit limits for that substance.

The first greenhouse gas regulations will be implemented on Jan 2, 2011, when the automotive emissions rules will become effective. At that time, all other sources of CO2 will be subject to regulation as well (although special, higher thresholds will apply to CO2 than to other priority pollutants). I predict Congress will do something about GHG regulations before that time.

Public Comment Period for 303(d) List Extended

The public comment period for the state Department of Environmental Protection’s 2010 draft 303 (d) List of impaired West Virginia waters has been extended until May 19, 2010.
The DEP released the 303 (d) List for comment on March 15, 2010. In response to public request, the deadline for submission of comments has been extended an extra month from its original April 19, 2010 deadline. The extension allows an additional 30 days for concerned parties to review and make comments concerning the waters on the list.

Individuals may view the list on the DEP’s Web site at www.dep.wv.gov. Written and e-mail comments are both acceptable. E-mails may be sent to Stephen.A.Young@wv.gov. Written comments can be sent to:
West Virginia Department of Environmental Protection, Division of Water and Waste Management, 2010 303(d) List –
Attn: Steve Young, 601 57th St., S.E., Charleston, WV 25304.
For more information about the 2010 draft 303(d) List, contact Steve Young at (304) 926-0495.

Richard Lindzen on Global Warming

Richard Lindzen, Alfred P. Sloan professor of atmospheric science at MIT, has one of the best explanations of why fears of human-caused global warming are overblown. Go to Watts Up With That to read the whole thing.

I particularly liked his succinct way of explaining why the monied interests are on the global warming side of the debate, not that of the skeptics, as is often supposed. A lot of companies, and all governments, stand to reap huge windfalls from carbon reduction programs:

One may ask why there has been the astounding upsurge in alarmism in the past four years. When an issue like global warming is around for more than 20 years, numerous agendas are developed to exploit the issue. The interests of the environmental movement in acquiring more power, influence and donations are reasonably clear. So, too, are the interests of bureaucrats for whom control of carbon dioxide is a dream come true. After all, carbon dioxide is a product of breathing itself.

Politicians can see the possibility of taxation that will be cheerfully accepted to save Earth. Nations see how to exploit this issue in order to gain competitive advantages. So do private firms. The case of Enron (a now bankrupt Texas energy firm) is illustrative. Before disintegrating in a pyrotechnic display of unscrupulous manipulation, Enron was one of the most intense lobbyists for Kyoto. It had hoped to become a trading firm dealing in carbon-emission rights. This was no small hope. These rights are likely to amount to trillions of dollars, and the commissions will run into many billions.

It is probably no accident that Al Gore himself is associated with such activities. The sale of indulgences is already in full swing with organizations selling offsets to one’s carbon footprint while sometimes acknowledging that the offsets are irrelevant. The possibilities for corruption are immense.

Get the Lead Out

The U.S. Environmental Protection Agency today announced it expects more than 125,000 renovation and remodeling contractors to be trained in lead-safe work practices by April 22, the effective date for a rule requiring such training.

The agency is on target to implement the Lead Renovation, Repair and Painting Rule, which will protect millions of children from lead poisoning, on April 22, 2010. “There has been tremendous progress by people working in the construction and remodeling trades to become trained in lead-safe work practices,” said Steve Owens, assistant administrator for EPA’s Office of Prevention, Pesticides and Toxic Substances. “EPA has been working hard to get the word out far and wide to contractors working in older homes, schools and day care centers that this training is available to help stop lead poisoning in children. All a contractor needs to do to be certified is take a simple one-day course.”

Despite nearly 30 years of effort to reduce childhood lead exposures, a million American children are still poisoned by lead paint each year, putting them at risk for a wide range of health impacts, including lowered IQ and behavioral disorders. Some of that poisoning is a result of dust contaminated by old lead paint that is stirred up during remodeling activities. There are simple steps contractors can take during such renovations to minimize exposures to lead paint. To ensure contractors were following such procedures, the EPA finalized the Lead Renovation, Repair and Painting Rule (LRRP) rule in 2008. The rule requires contractors to become trained and certified as lead-safe by EPA. Individuals take an eight-hour training course offered by private training providers to become a certified renovator. The certification is valid for five years. To date, EPA has certified 190 training providers who have conducted more than 4,900 courses. An estimated 100,000 people in the construction and remodeling industries have been trained in lead-safe work practices.

Based on current estimates, EPA expects more than 125,000 contractors to be certified by the April 22 deadline. EPA has a number of efforts under way to expedite the training and certification process. Included are a print and radio campaign to highlight the benefits of hiring lead-safe certified firms. As a result, it is expected that training capacity will continue to increase significantly as the April 22 deadline approaches. It is likely that many more contractors and renovators will seek and obtain training after the deadline.

To locate local EPA-accredited RRP training providers using EPA’s search tool: http://cfpub.epa.gov/flpp/searchrrp_training.htm Information on firm certification: http//:www.epa.gov/getleadsafe More information on EPA’s lead program: http://www.epa.gov/lead

We're Going to Continue Building Coal-Burning Power Plants

Until cost-effective new forms of energy that don't emit carbon are developed, coal burning power plants will be needed to fuel growth. This was demonstrated in South Africa lately, which was seeking World Bank funds to build a large coal plant. Building carbon-spewing plants is anathema to the global warming crowd, but without energy, how do you improve people's lives? Roger Pielke, Jr. is a professor at the University of Colorado who blogs about climate issues, and he's sort of in the middle of the dispute regarding climate change. Here's his post on the issue. And for a thought-provoking blog on the real meaning of "Earth Hour", and the need to relieve the billion or so people living in "energy poverty," take a look at Leigh Ewbank's post at the Breakthrough Institute. Consider this:

This thinking [that humans and their activities are by nature non natural and not part of the environment] is still prevalent in environmental thought and action, and has no doubt motivated the anti-Earth Hour backlash. Created by the US based libertarian think tank the Competitive Enterprise Institute, and promoted in Australia by the Conservative Leadership Foundation, Human Achievement Hour seeks to reframe energy use as a symbol of human greatness, not sin. It is a conservative rejection of a moralizing climate change discourse that promotes self sacrifice and the notion that humans ought to be ashamed of enjoying the benefits of a modern economy. Some environmentalists will dismiss the conservative critique that Earth Hour ignores human achievement as more right wing madness, reminiscent of the US Tea Party movement. Yet, the conservative claim is valid, and environmentalists ignore it at their peril.

Carbon Trading Problems

One of the hallmarks of the Waxman-Markey climate bill (passed by the House, no action by the Senate) is the creation of a trading system that would gradually ratchet down the amount of carbon that can be emitted, by slowly reducing the number of tradable carbon credits that are allowed. But what if a recession creates the credits, rather than additional pollution controls? When the economy picks up, can the industries use the banked credits to put off further emission reductions? And who guarantees that the reductions in greenhouse gases that are represented by the credits are actually made? Yael Borofsky, writing on the Breakthrough Institute website, refers to a Stanford study reports that 1/3 to 2/3 of the emissions offsets under the Kyoto Treaty were not real emission reductions.

Of course, this begs the central question - is there a good reason to impose all these burdens (charging for the right to emit CO2) on development to reduce greenhouse gases that may or may not be contributing to global warming, which may or may not be harmful?

Arch Coal Defends Its Permit

The Gazette reports that Arch Coal has gone to federal district court to ask for a ruling that the EPA does not have the authority to withdraw the NPDES permit for its Spruce No. 1 Mine. As has been widely reported, the Spruce No. 1 is one of the largest mountaintop mines ever permitted, but EPA recently announced that it intended to veto the permit because of the expected effects on the State's water quality. This case is likely to bring to a head much of the controversy surrounding EPA's attack on mountaintop mining. It will certainly require close scrutiny of the new guidance that EPA has issued with regard to mining discharges, which I blogged about yesterday.

Bob McLusky will be the attorney defending Arch. They are in good hands.

EPA Issues Guidance on Mountaintop Mining

EPA has issued guidance on mountaintop mining that will greatly affect permit issuance for surface coal mines. The most important part of the guidance is EPA's announcement of how it will interpret West Virginia's water quality standards when it is reviewing mining NPDES permits. At the risk of oversimplifying, EPA has taken the position that when streams downstream of valley fills show conductivity of less than 300 microsiemens per centimeter there will be presumed to be no environmental impact, and where the conductivity is greater than 500 uS/cm there will be a presumption that the streams are adversely impacted. For streams between 300 uS/cm and 500 uS/cm, mining permits maybe issued with conditions designed to prevent reaching 500 uS/cm. It will be difficult for any mining operation to avoid exceeding 300 uS/cm, a fact that EPA is well aware of.

The guidance is intended to implement the narrative criteria in the state's water quality standards (47 CSR 2, section 3). Some parts of the water quality standards set numeric limits for particular pollutants that are considered safe for environment; the narrative criteria address those conditions that can't be easily addressed by numeric limits. Things like excessive sedimentation, color, odor, or toxicity are prohibited, terms which are necessarily vague. In this case, EPA is interpreting the narrative water quality standard that prohibits toxicity to fish and benthic organisms.

EPA has promised the guidance for some time, because its threats to veto NPDES permits have caused a great deal of uncertainty for the Appalachian coal mining industry. EPA doesn't write the NPDES permits; West Virginia has been delegated authority to write them. However, EPA has retained authority under the Clean Water Act to review those permits and veto them if they believe the CWA is not being implemented properly. This guidance from EPA is intended to provide a standard for state permit writers to follow if they want to avoid EPA oversight and rejection.

The West Virginia Department of Environmental Protection had already requested, and recently has posted, suggestions from the public on how the narrative standard should be implemented. It was planning on developing its own implementation process in its upcoming triennial review of water quality standards. It will be interesting to see how the state's plan to interpret the narrative criteria will change as a result of this action by EPA.

One of the odder parts of the EPA's action is the fact that the guidance is effective immediately, but there will be a public comment period that will not run the usual 30, 60 or 90 days; comments will be accepted until December, 2010, with a final guidance no later than April 1, 2011. One can only suppose that EPA wanted to keep its guidance in effect on an interim basis as long as possible before having to defend the science of its proposal in its response to comments. If so, it's pretty shameful.

There is also a substantial portion of the guidance that talks about reducing the impact of mining, and requiring significant in-stream monitoring upstream and downstream of the valley fills, both before and after construction of the valley fills. There are also provisions for National Environmental Policy Act review and environmental justice considerations.

Ken Ward has a good summary of the EPA's action from the environmentalist side. You should check his blog for a detailed history of how this all came to be. The Washington Independent had this report, which is representative of the type of national attention given the guidance.