EPA Issues Draft Chesapeake Bay ‘Pollution Diet’

EPA has just announced its draft Total Maximum Daily Load for the Chesapeake Bay, limiting the amount of nutrients that each state can send to the Bay. I tried to get onto the EPA website and see what West Virginia's apportionment is, but error messages kept appearing, probably because so many people are trying to get on the website. Here's EPA's press release:

(PHILADELPHIA – September 24, 2010) The U.S. Environmental Protection Agency today released a draft Chesapeake Bay Total Maximum Daily Load (TMDL), a mandatory “pollution diet” designed to restore the Chesapeake Bay and its vast network of streams, creeks and rivers. The Bay is a complex ecosystem and an economic engine for the region, supporting a variety of industries from fishing to tourism.

The draft TMDL -- which EPA is legally required to produce – sets limits on the amount of nitrogen, phosphorus and sediment pollution discharged into the Bay and each of its tributaries by different types of pollution sources. It is designed to meet water quality standards that reflect a scientific assessment of the pollution reductions necessary to restore the health of the Bay ecosystem. The draft TMDL calls for 25 percent reductions in nitrogen and phosphorus and at least a 16 percent reduction in sediment to achieve a healthy Bay and local rivers. These reductions, which the science indicates are necessary to achieve a healthy watershed, would be achieved by a combination of federal and state actions.

Development of the draft TMDL followed careful EPA review of pollution reduction measures proposed by the States and the District of Columbia earlier this month in their Watershed Implementation Plans.

As a result, the draft TMDL allocations released today reflect a combination of defined state commitments and supplemental EPA measures which tighten controls on permitted “point sources” of pollution, such as wastewater treatment plants, large animal agriculture operations and municipal stormwater systems.

EPA will now work with federal partners like the Department of Agriculture, to assist Bay watershed states and the District of Columbia as they revise and strengthen the implementation plans before final versions are due on November 29.

“While EPA felt that the plans submitted by Maryland and the District of Columbia represented a strong start, others still contained gaps that reduced EPA’s confidence that the State could achieve all the pollutant reductions necessary to meet its contribution to Bay restoration,” said EPA Regional Administrator Shawn M. Garvin,. “We are hopeful that the jurisdictions will provide a greater level of assurance in their final plans, so that EPA can reduce the federal measures in the final TMDL. EPA strongly prefers to achieve the necessary pollution reductions through the state plans rather than federal actions because the states have more flexibility and can achieve reductions from a wider range of sources than EPA.”

The Draft TMDL which contains evaluations of the plans and EPA adjustments for all seven jurisdictions can be found at http://www.epa.gov/chesapeakebaytmdl.

The release of the draft TMDL begins a 45-day public comment period that will include 18 public meetings in all six watershed states (Virginia, Maryland, Pennsylvania, Delaware, New York and West Virginia) and the District of Columbia. A full public meeting schedule, including registration links for online broadcast is available on the Bay TMDL web site: http://www.epa.gov/chesapeakebaytmdl. The web site also provides instructions for accessing the draft TMDL and providing formal comments.

The TMDL is designed to ensure that all pollution control measures to fully restore the Bay and its tidal rivers are in place by 2025, with 60 percent of the actions completed by 2017. The final TMDL will be established December 31.

On July 1, EPA set draft Bay-wide limits for nitrogen and phosphorus at 187.4 million and 12.5 million pounds per year, respectively, and on Aug. 13 set a range of allowable sediment pollution levels at between 6.1 and 6.7 billion pounds per year. These Bay-wide pollution limits were further divided by jurisdiction and major river basin based on state-of-the-art modeling tools, extensive monitoring data, peer-reviewed science, and close interaction with state partners.

The TMDL is supported by accountability measures to ensure cleanup commitments are met, including short-and long-term benchmarks, a tracking and accounting system, and additional federal actions, if necessary, to spur progress. It will build on state programs already in place, some of which are helping reduce pollution and improve the Bay’s health – for instance, Maryland reported a record sign-up this fall for one of its most successful agricultural pollution control programs, achieving more than 150% of its two-year goal for the Chesapeake Bay.

The TMDL was prompted by insufficient restoration progress over the last several decades in the Bay. The TMDL is required under federal law and responds to consent decrees in Virginia and D.C. dating back to the late 1990s. It is also a keystone commitment of a federal strategy to meet President Obama’s Executive Order to restore and protect the Bay.

West Virginia DEP Continues Work on Long Term Brownfields Maintenance Program

Remediation of land contamination is seldom completed at the time earth moving ends. Cleaning up contaminants to background levels is usually not cost-effective or necessary, as long as future exposure to the contaminants will be limited. That might be done by, for example, by placing a concrete cover over the affected area, or putting a restriction in the deed against use of the land for residential housing. Those institutional and environmental control obligations stretch into the future, and there's always a chance that the party who makes the commitment won't be around in the future to maintain physical structures, or that the protections will simply be forgotten.

In order to provide for long term closure obligations, the DEP is establishing a program to carry out long term maintenance. Here's a fact sheet explaining the process, which opens with the following explanation of the program:

In February 2009, the West Virginia Department of Environmental Protection (WVDEP) established the WV Institutional Controls Focus Group (IC Focus Group) to provide an independent perspective to WVDEP about the feasibility of utilizing a public-private land stewardship program for the long-term safeguarding of remediated sites using institutional controls (ICs) and engineering controls (ECs) (collectively, IECs) to ensure that the remedy remains protective of human health and the environment. . .

The primary outcomes of this initiative will be recommendations and pre-implementation activities concerning the structure and operation of the voluntary land stewardship program. To date, this effort has resulted in an agreed organizational structure, site acceptance criteria and procedures, model agreements, as well as approaches to inspection, monitoring, reporting and notice.

Beginning later this year, several pilot projects will be conducted to demonstrate, strengthen and refine the proposed program. The pilot sites include sites from the State Voluntary Remediation Program (VRP) and completing corrective-action under the Resource Conservation and Recovery Act (RCRA). In addition, financial analysis will be conducted to ensure the design of a viable entity with the necessary safeguards and standards needed for a permanent perpetual-care solution. Approximately a year after the pilots are implemented, the voluntary land stewardship program will begin to offer its services to the public and will accept additional sites into the program. The program will be available for sites with IECs remediated or closed under any federal or State environmental or remediation program, including brownfields, underground storage tanks, landfill closures, open dumps, hazardous waste sites, or sites with ongoing water treatment as part of mine reclamation efforts. More detailed information is available in the WV Institutional Controls Focus Group Interim Report dated September 9, 2010.

Thanks to Rob Lannan of Robinson & McElwee and others who worked on this process.

WVU Participates in EPA Sustainability Initiative

EPA Welcomes West Virginia University as Newest Partner

in Regional Sustainability Initiative

MORGANTOWN, W. Va. - - September 21, 2010 Today, West Virginia University became the latest organization to join the U.S. Environmental Protection Agency’s Sustainability Partnership Program (SPP) in a signing ceremony held at the University President’s Office. EPA Regional Administrator Shawn M. Garvin joined Cabinet Secretary Randy Huffman of the West Virginia Department of Environmental Protection (WVDEP) in recognizing West Virginia University (WVU).

University President James P. Clements signed the agreement on behalf of the school, formalizing the new working partnership.

“WVU has already taken many progressive steps to reduce the overall environmental footprint of the campus, and EPA is pleased to support and further those efforts” said EPA mid-Atlantic Regional Administrator, Shawn M. Garvin. “Through our partnership we expect that both sides will benefit as we build on current successes and then share those practices with other colleges and organizations.”

The Sustainability Partnership is an innovative program developed by EPA’s mid-Atlantic region to create a one-stop shopping approach for organizations that use large quantities of energy, water, and natural resources and want to go green. Instead of dealing with each of EPA's voluntary programs individually, EPA staff will work out a comprehensive ‘green’ plan for organizations that often saves money and makes good business sense. The overall goal of the SPP is to minimize the use of energy, resources and waste generation in the mid-Atlantic states.

The centerpiece of West Virginia University's sustainability effort is a performance contract to make existing buildings energy efficient. By 2016, the university expects to spend $50 million on updating equipment and installing energy saving upgrades in all of its campuses, including WVU Tech, Potomac State College and WVU-Parkersburg. So far the Evansdale campus has been completed, and the university has already spent about $20 million.

Following this project, the university is expected to reach a carbon dioxide emission level that is 31.5 percent less than a typical educational complex its size.

"We are pleased to partner with the EPA as part of our commitment to a sustainable campus," said WVU President James P. Clements. "We have integrated sustainability practices throughout the University - from buildings to our transportation systems, to the cleaning products we use. I would like to thank Clement Solomon, WVU's director of sustainability, and all those throughout the University who demonstrate this commitment daily."

The West Virginia Department of Environmental Protection has entered into an agreement with EPA and is helping to promote the SPP throughout the state.

“It is a great day for West Virginia University with the signing of the Sustainability Partnership Agreement,” said WVDEP Cabinet Secretary Randy Huffman. “West Virginia University’s commitment to developing sustainable energy, water, and waste conservation practices in harmony with preserving West Virginia’s economy, environment, and communities for future generations speaks volumes of the many contributions already made to create a sustainable school. By signing this agreement, West Virginia University is well on their way to preparing our young people for generations of sustainable living, through its education, its fabric, and its daily practices.”

For information on the Sustainability Partnership go to: http://www.epa.gov/reg3wcmd/spp/index.html or call, 215-814-3110.

Business Groups Challenge Greenhouse Gas Regulation

Joseph P. Koncelik has a great blog entry about a challenge by several large business organizations, including the National Association of Manufacturers, to the application of all of EPA's GHG regulations other than the automobile tailpipe rules limiting GHG emissions from vehicles. This is not a direct attack on the Tailoring Rule, but a broader effort to stay the effect of all other GHG rules. As he explains it,

Business groups had no alternative but to seek a stay given the ramifications of EPA embarking on this regulatory path. Typically, you would ask to stay the effectiveness of a specific rule. However, delaying the legal effectiveness of the Tailoring Rule would arguably subject all businesses to the ridiculously low permitting thresholds 100/250 tons in the Clean Air Act.

As result, business group are challenge the very premise the EPA had to enact the Tailoring Rule because otherwise the 100/250 ton thresholds would take effect after enactment of the vehicle tailpipe rule.

This type of lawsuit, and similar challenges to EPA's Endangerment Finding (that CO2 presents a danger) and Tailoring Rule (explaining how EPA will regulate GHGs), as well as environmentalists' challenge to EPA's decision to ignore the 100/250 ton threshold for regulation of GHGs that would otherwise be required by the Clean Air Act, are all pending before courts. Some of them will likely rule one way or the other on stay requests before the end of the year, before the Tailoring Rule goes into effect.

National Mining Association Sues EPA Over Water Guidance

The National Mining Association filed suit in federal district court in Washington over the June, 2009 and April, 2010 guidance on the application of water quality standards to Appalachian coal mining. I have not seen the complaint, which seeks injunctive relief preventing EPA from enforcing the guidance, but there is a report from Amena Saiyid at Platts here that provides more information about the lawsuit.

DEP and Marshall Sponsor Sustainable Schools Summit

Marshall University, in partnership with the West Virginia Department of Environmental Protection, will present the 2010 Sustainable Schools West Virginia Summit April 10-11, 2011.

The previously scheduled summit was moved due to scheduling conflicts.

The free event is designed to bring together educational leaders in elementary, secondary and higher education – both public and private – to discuss the important roles schools, colleges and universities have in creating sustainable campuses across West Virginia. The summit will take place on Marshall’s Huntington campus and is open to public and private higher education, as well as public and private K-12 schools.

Online registration is available at

http://apps.dep.wv.gov/registration. An agenda is also available at this site.

The summit is presented in concert and partnership with the WVDEP, Marshall University’s Sustainability Department, State Electric Supply Company, and ZMM, Inc.

For information, contact MU Sustainability Manager Margie Phillips at philli10@marshall.edu or 304-696-2992.

Internal Combustion Engines Here to Stay

In our race to the future of all electric vehicles, we sometimes forget that the internal combustion engine is going to be with us a long time. For many years to come, the primary effort will be to wring more power out of a gallon of fuel, rather than convert wholesale to electric vehicles. That's why diesel is likely to make a comeback, because of greater fuel efficiency and new standards that make them less smelly and more environmentally friendly. Marry a diesel to a hybrid, as Peugeot is doing, and you have quite a car. The same can be said about a new version of an old idea, the opposable cylinder engine concept, which has received fresh attention from venture capitalists, including Bill Gates, as it overcomes some of its two-stroke problems.

On the other hand, some new, brilliant ideas have to be shelved when they just turn out to be impractical. Say goodbye to the compressed air car, which could never overcome its efficiency problems, or difficulties with low temperature exhaust.

WVMA Comments on Boiler Rule MACT

The West Virginia Manufacturers Association filed comments on the EPA's proposed boiler MACT, which can be seen here. The WVMA was lending its voice to the many trade associations and companies that are concerned about EPA's proposal to impose new restrictions on hazardous air pollutants emitted by industrial boilers. Industrial plants have large boilers that are used to heat chemical processes, provide power, and otherwise make products. Such emissions are subject to Maximum Achievable Control Technology, which is a Clean Air Act term that specifies the type of pollution control that is required. More about MACT can be found here.

Thanks to Anne Blankenship, who drafted the letter and forwarded it to me.

Obama Administration Opposes Nuisance Suit Against Utilities

The Obama Administration has joined sides with those opposing a lawsuit by several states and NGOs seeking to enjoin Eastern coal-fired power plants from operation under a nuisance theory. The Tennessee Valley Authority, a federal agency, is one of the coal-burning entities under attack, and the Justice Department filed a brief on its behalf asking the Supreme Court to review a decision by the Second Circuit that allows the suit to proceed. The Administration argues that it has regulated greenhouse gases, leaving no room for nuisance actions by private entities. The Washington Post story is here, while the Natural Resources Defense Council blog expressing umbrage at the Administration is here.

There have been a number of lawsuits by entities (Inuit villages, states, coastal communities) seeking damages from corporations they believe are harming them by contributing to global warming. Global warming and, more importantly, its alleged harmful effects, are gospel among true believers, but it would be interesting to see whether the science holds up if it is subjected to the sort of scrutiny that would occur in a court of law.

WV DEP Expands Environmental Advocate Office

I question whether increasing the size of the Office of the Environmental Advocate is the best use of taxpayer dollars, as opposed to hiring more inspectors, but here we go:

The Department of Environmental Protection has expanded its Office of the Environmental Advocate with the addition of two staff members.

“I wanted to expand the office because the citizens of West Virginia have an increased interest and awareness of environmental issues and we want to be responsive to their need for information and involvement,” said DEP Cabinet Secretary Randy C. Huffman.

Dennis Stottlemyer and John King joined the staff Sept. 1, and will assist Pam Nixon, who has been the sole environmental advocate since she joined the agency in November 1998. The Office of the Environmental Advocate has been in existence since the establishment of the DEP in 1992. This is the first time in the office’s 18 years of operation that is has been expanded.

Stottlemyer will be located in the Charleston office and King will work out of the Fairmont office. Huffman said their role will be to interact with individual citizens in the state, as well as work with community organizations and citizen’s groups

“Their main focus will be to close the gap between the agency and the citizens of the state,” Huffman said.

Stottlemyer is a 1995 graduate of West Virginia University, with a bachelor’s of science degree in environmental protection. Prior to being selected for this position, he was mitigation coordinator for the DEP’s Division of Mining and Reclamation. He also served as an executive assistant to the cabinet secretary for the DEP and was an environmental consultant prior to joining the agency. He is a member of the Davis Creek and Coal River watershed associations.

King earned a bachelor’s degree in criminal justice in 2002, and a master’s degree in physical science in 2007 from Marshall University. His experience includes being an inspector with the DEP’s Division of Water and Waste Management, and a regional coordinator for the Youth Environmental Program. He is also a member of the DEP’s dive team, and a founding member of the Morris Creek Watershed Association.

“This addition will allow DEP to reach more of its citizens,” Nixon said. “When it was just me, no matter how hard I tried, I was never able to address everyone’s concerns and issues. Now, DEP will be better able to meet with and communicate with more of West Virginia’s citizens.”

To reach the Office of the Environmental Advocate, call 800-
654-5227 or 304-926-0441. To reach Nixon email:
Pamela.Nixon@wv.gov. Stottlemyer can be reached at:
Dennis.O.Stottlemyer@wv.gov; and King at:
John.M.S.King@wv.gov.

Secretary of Energy Chu Visits Charleston, Discusses Carbon Capture

In an event co-sponsored by Robinson & McElwee, Secretary of Energy Chu came to town yesterday to talk about carbon sequestration, a process which would separate the carbon dioxide from power plant emissions and force it underground under great pressure in order to prevent its contribution to global warming. Grants are being given to WVU and other research institutions to investigate ways this can be accomplished. The Associated Press/WSAZ reports on it here. The Gazette and Daily Mail reports are not yet available.



Carbon capture and sequestration (CCS) is not easily accomplished. Not only is the technology involved in sequestering carbon difficult to implement on a large scale, there are improtant public policy issues to be resolved, such as who owns the underground geologic formations into which the carbon is sent, and will the costs of obtaining those rights cause CCS to be prohibitively expensive. The WV Legislature has a group studying the issue under the leadership of former DEP Secretary Stephanie Timmermeyer, and anyone interested in the subject would benefit from a review of its preliminary report, released in July.

Kanawha River Clean Up Is This Weekend

The 21st annual Great Kanawha River Cleanup, sponsored by the West Virginia Department of Environmental Protection, is scheduled from 8 a.m. to noon on Saturday, Sept. 11.

Cleanup sites along the Kanawha River will include the beach at Winfield Locks; Roadside Park in St. Albans; Magic Island in Charleston; and Gauley Bridge (next to the former Save-A-Lot location).

Those wishing to volunteer are urged to register with the DEP so enough supplies can be obtained for each cleanup location. The DEP’s REAP program (Rehabilitation Environmental Action Plan) will supply bags and gloves for volunteers and will arrange for trash to be hauled away.

Last year, close to 100 volunteers collected 6.15 tons of debris and 70 tires.

For more information or to register to volunteer, contact Travis Cooper at 304-926-0499 ext. 1117, or e-mail:

Travis.L.Cooper@wv.gov.

West Virginia Gas Industry Faces New Regulations

The natural gas drilling industry has grown in West Virginia since the development of the Marcellus Shale formation began a few years back. The Marcellus Shale is a geological formation that holds lots of natural gas, but that gas is tightly locked away, unlike conventional formations of, say, sandstone, where the gas can flow more easily through the pore space in the formation. Horizontal drilling and fracturing the formation along the drill hole has opened up huge areas to drilling in WV, PA and NY, but has also created concern among residents over water withdrawals, the use of fracking chemicals, and the size of drill sites. Horizontal wells require much larger pits to hold the water used for fracking, and for the produced water that comes out of the hole. It also means there are lots more trucks on smaller secondary roads, bringing heavy equipment and water into the drill site.

Last month Gov. Joe Manchin called together the industry and opponents to discuss the future of gas drilling, and announced there would be changes coming in the future. There was the implied threat that those who do not cooperate may see permits harder to come by. He's putting together a group to study possible changes and to make recommendations. As Gov. Manchin is widely expected to become Senator Manchin in November, he'll leave someone else to see this process to completion.

In the meantime, lots is going on. Here is a guidance from the Department of Highways on dealing with damages to roads and requiring bonds for possible road damage. Here is a report from the Associated Press regarding plans to increase the number of inspectors and other actions by the DEP, including a possible two-tier approach to permitting, one for smaller conventional wells and the other for larger horizontal wells. In addition, the Office of Oil and Gas recently took comment on revisions to its sediment and erosion control best management practices, and those will likely be changed in the near future to require additional pit construction controls and reclamation requirements for horizontal wells.

Judge Chambers Holds Mining Company in Contempt

Judge Robert C Chambers of the USDC for the S. Dist of WV has been hearing, and ruling intermittently on, a long-running citizen suit brought against Apogee Coal and Hobet Mining. Ohio Valley Environmental Coalition, et al, v. Apogee Mining et al. His most recent ruling orders the coal companies to come into compliance with selenium limits at specified outfalls by Spring, 2013, and orders the installation of selenium treatment developed by their experts, CH2M Hill. A special master will be appointed to oversee the implementation of the selenium treatment.

The ruling is somewhat remarkable in that it holds Apogee in contempt for not exercising reasonable diligence in complying with an earlier order of the Court to install selenium treatment. The Court will consider what penalties to impose and whether to award attorneys fees and issue a ruling later this month.

Spark Iginition Engine NESHAPS Issued by EPA

Anne Blankenship reports that EPA has issued its final national emission standards for hazardous air pollutants for existing stationary spark ignition reciprocating internal combustion engines that either are located at area sources of hazardous air pollutant emissions or that have a site rating of less than or equal to 500 brake horsepower and are located at major sources

of hazardous air pollutant emissions. These types of engines are frequently used for natural gas compression on pipelines.

This final rule is effective on October 19, 2010. A summary of the final rule is attached. You can find the complete federal register publication of the final rule at this link: http://edocket.access.gpo.gov/2010/2010-20298.htm