EPA Challenges West Virginia NPDES Compliance Schedules

Compliance schedules are regularly used to allow dischargers more time to meet NPDES permit limits. Perhaps a new treatment system has to be built, or time is needed to sample the background water quality, in order calculate new permit limits. The coal industry has had a tough time coming up with treatment for selenium, and therefore the DEP has issued compliance schedules effectively relieving the mines of the need to comply with selenium limits while they are installing additional treatment.

EPA has recently begun challenging the DEP's practice of extending compliance schedules, claiming that the mines are using the compliance schedules to forestall selenium treatment. Here is one of the letters EPA recently sent objecting to the extension of a compliance schedule. Environmental groups are filing lawsuits alleging that the extended compliance schedules are illegal, or that the mines are operating without extended schedules. Meanwhile, the DEP has also filed suit against certain mining operations, alleging that they are not meeting selenium standards set in their permits. Ken Ward has more details here.

EPA To Regulate Pesticide Application Under Clean Water Act

In the past, pesticide applicators who were applying pesticides in compliance with FIFRA were not required to get NPDES permits. Following a recent 6th Circuit Court of Appeals decision, pesticide control programs in West Virginia, like gypsy moth spraying and black fly control in the New River area, will have to be covered under NPDES general permits if there is the chance that pesticide residue could end up in surface waters. Here's a short, cogent explanation from David Wagner of the Reed Smith law firm of how we got to this point, and describing EPA's timeline for issuing the general permits. In West Virginia, which has a delegated program, the DEP will issue its own general permits after allowing public comment.

Ohio Court Upholds Limitation on Tawney Action

In early 2009 a jury in Roane County awarded huge damages to oil and gas royalty owners who had allegedly been underpaid as a result of gas companies deducting certain expenses from the royalties they paid. The WV Supreme Court of Appeals refused to hear the appeal, and it ended up causing Chesapeake Energy to cancel its plans for a new headquarters building in Charleston.

The Ohio legislature changed the statute of limitation to foreclose such huge awards, and it was upheld by a US District Court. The Vorys law firm in Ohio reports on that decision, and I've included the first paragraph as an enticement to follow the link to their blog entry on the case.

Building on the royalty-interest owners' success in Estate of Garrison G. Tawney v. Columbia Natural Resources, LLC (West Virginia), plaintiffs filed a nearly-identical suit in Ohio asserting class-action claims for the deliberate and fraudulent underpayment of natural gas royalties by CNR and its successors. See Lutz v. Chesapeake Appalachia, LLC, Case No. 4:09CV2256 (United States District Court, Northern District of Ohio). Today, the District Court issued its decision dismissing those claims - based largely on Ohio's new 4-year statute of limitations.

West Virginia DEP Schedules Hearings on Proposed Rules

The West Virginia Department of Environmental Protection has scheduled public hearings for its 2011 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. 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

45CSR18 – Control of Air Pollution from Combustion of Solid Waste

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

45CSR34 – Emission Standards for Hazardous Air Pollutants

The public hearing for all Air Quality rules will begin at

6 p.m. on Monday, July 12, in the Dolly Sods Room. The comment period will begin on June 11, 2010 and end at the conclusion of the public hearing on July 12. 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, 45CSR18, 45CSR25 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

38CSR2 – West Virginia Surface Mining Reclamation Rule

199CSR1 – Surface Mining Blasting Rule

The public hearing for all Mining and Reclamation rules will begin at 6 p.m. on Tuesday, July 13, 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.

Division of Water and Waste Management

33CSR20 – Hazardous Waste Management System

47CSR12 – Requirements Governing Groundwater Standards 47CSR60 – Monitoring Well Design Standards

The public hearing for these rules will begin at 6 p.m., Thursday, July 15 in the Coopers Rock Training Room. The comment period will end at the conclusion of the hearing.

47CSR2 – Requirements Governing Water Quality Standards

The public hearing for this rule will begin at 6 p.m., Monday, July 19 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.

Secretary’s Office

60CSR2 – Rules on Freedom of Information Act Requests

The public hearing will begin at 6 p.m., Thursday, July 15 in the Coopers Rock Training Room. The comment period will end at the conclusion of the hearing.

For more information on Freedom of Information Act rules call 304-926-0499, ext. 1331

Rockefeller Backs Murkowski Resolution

Senator Rockefeller has announced his support for Sen. Lisa Murkowski's resolution depriving EPA of authority to regulate carbon dioxide. Sen. Rockefeller has his own proposed legislation to delay EPA authority to regulate greenhouse gases from stationary sources for 2 years, while limits on vehicles move ahead (see previous post on May 26), but he has evidently decided to support the resolution, in light of the interest expressed by his constituents. He is probably helped in his decision by the fact that the resolution, even if it is passed by the Senate, probably can't pass the House, and would be vetoed by the President anyway.

U. of Penn Law Professor Examines Climate Change Claims

I follow with interest the debate over climate change, generally on sites like Watts Up With That, now the most popular science blog on the web, but don't take as much time as I should to link with them. In part that's because they tend to be somewhat technical in nature, and I can't verify myself what they are saying. However, there was a recent posting that is right down the alley of any environmental legal blog, an article by Jason Scott Johnston, the Robert G. Fuller, Jr. Professor and Director, Program on Law, Environment and Economy at the University of Pennsylvania Law School titled Global Warming Advocacy Science: A Cross-Examination. This is a legal analysis of many of the claims made on behalf of climate change advocates, and it appears that when climate change science is scrutinized, it looks nothing like science, and a lot like religion. I suspect that, when climate change advocates are exposed to cross examination by capable attorneys, they will be unable to defend their opinions.



Lawrence Solomon in the Financial Post summarizes it better than I:

A cross examination of global warming science conducted by the University of Pennsylvania’s Institute for Law and Economics has concluded that virtually every claim advanced by global warming proponents fail to stand up to scrutiny.

He found that the climate establishment does not follow the scientific method. Instead, it “seems overall to comprise an effort to marshal evidence in favor of a predetermined policy preference.”

The cross-examination, carried out by Jason Scott Johnston, Professor and Director of the Program on Law, Environment and Economy at the University of Pennsylvania Law School, found that “on virtually every major issue in climate change science, the [reports of the UN’s Intergovernmental Panel on Climate Change] and other summarizing work by leading climate establishment scientists have adopted various rhetorical strategies that seem to systematically conceal or minimize what appear to be fundamental scientific uncertainties or even disagreements.”

Professor Johnson, who expressed surprise that the case for global warming was so weak, systematically examined the claims made in IPCC publications and other similar work by leading climate establishment scientists and compared them with what is found in the peer-edited climate science literature. He found that the climate establishment does not follow the scientific method. Instead, it “seems overall to comprise an effort to marshal evidence in favor of a predetermined policy preference.”

Financial Post
Lawrence Solomon is executive director of Energy Probe the author of The Deniers.