US Supreme Court to Consider Right to Challenge Wetland Determinations

Richard Frank writes in Berkeley Law School's Environmental Planet blog about a case that the US Supreme Court has decided to hear next term, Sackett v. U.S. Environmental Protection Agency, No. 10-1062, that could have ramifications for developers everywhere.  He sets up the case this way:

Lawrence Hurley has this at Greenwire about the case.

The Sacketts filled in a portion of their lot near Priest Lake, Idaho, in preparation for building a house on the property. EPA issued an administrative compliance order against the Sacketts, alleging that the parcel is a wetland subject to the CWA, and that the Sacketts violated the Act by filling their property without first obtaining a permit under CWA section 404. EPA’s compliance order directed the Sacketts to restore the property to its original condition, or else be subject to monetary penalties under the Act.

The Sacketts unsuccessfully sought an administrative hearing before EPA to challenge the agency’s finding that their property is a wetland subject to CWA permitting requirements. They then sued in federal court, claiming that EPA’s issuance of the compliance order was both subject to judicial review and factually erroneous; the absence of such review, argued the Sacketts, violates the Administrative Procedure Act as well as their constitutional right to due process.

The Sackett's problem is one that is seen everywhere, but particularly in wetlands cases.  The Corps of Engineers, or EPA, or the state, makes a determination that a certain location is a wetland or some other protected class of property, and the property owners have no opportunity to challenge that decision on the merits.  They must wait until an enforcement action is brought against them in order to challenge the underlying determination. 

The difference between a civil or administrative challenge to a wetland determination, and an enforcement action, is huge.  Once an enforcement action is brought, the penalty sought will be significant fines and/or jail time.   Property owners who are willing to challenge the underlying determination, when the cost of being wrong will be the cost of returning property to its original state or paying for mitigation, may not be willing to risk jail time.  The result is that property owners forgo legitimate objections to wetland determinations, because of the huge cost of potentially being wrong.

The lower federal courts sided with EPA.  Here's hoping the Supreme Court will even the playing field by allowing legal challenges to wetland determinations  before enforcement actions are brought.

DEP to Hold Quarterly Water Quality Standards Meeting

The DEP will be holding its quarterly meeting to discuss water quality stanards on June 30 from 1 to 3 pm.  This is a good opportunity for anyone with a concern about water quality standards to ask questions of Scott Mandirola, Kevin Coyne, and others who are in charge of directing the development of water quality standards.

There are no rulemaking changes proposed this year, and so it will likely be a short meeting.

US Supreme Court Rejects States' Greenhouse Gas Lawsuit

In an 8-0 decision in  American Electric Power v. Connecticut, written by Justice Ginsburg, the US Supreme Court yesterday rejected a lawsuit by states and NGOs against power companies that sought to limit the power generators' greenhouse gas (GHG) emissions.  The states argued that the power companies were contributing to global warming, which constituted a nuisance that was affecting the states and their citizens. An explanation of the decision from the Los Angeles Times is found here. SCOTUSblog, which should be everyone's first stop when considering Supreme Court deicisons, has this analysis from Lyle Denniston.

The Court found that the Clean Air Act left no room for regulation of GHGs through nuisance actions, and also noted the impracticality of judges trying, on a case-by-case basis, to limit GHG emissions. But anyone who thinks that this case is a clear victory for GHG emitters would be mistaken.  The Court did not reject limits on GHGs, it merely handed GHG regulation back to EPA.  If EPA doesn't act, or doesn't limit GHGs as the states hope, they can be right back in court, as summarized int he Court's syllabus:

The Act also provides multiple avenues for enforcement. If EPA does not set emissions limits for a particular pollutant or source of pollution, States and private parties may petition for a rulemaking on the matter, and EPA’s response will be reviewable in federal court. See §7607(b)(1).The Act itself thus provides a means to seek limits on emissions ofcarbon dioxide from domestic power plants—the same relief the plaintiffs seek by invoking federal common law. There is no room for a parallel track. Pp. 9–11.

This decision puts EPA in a strong position for pushing ahead with its plans for regulating GHGs.  EPA is certain to point out to Congress that if EPA does nothing, states will be free to petition for rulemaking, and perhaps renew their nuisance actions, on the ground that there is no federal preemption of GHG regulation. Unless Congress takes GHG regulation away from EPA, which appears unlikely at this time, EPA will continue to implement its Tailoring Rule and other GHG initiatives that are imposing limits on emissions of CO2 and other GHGs from large sources.  Whether EPA can proceed on that course will be determined by lawsuits brought by states and businesses against EPA, attacking the Tailoring Rule and the Endangerment Finding, because those EPA initiatives form the basis for action on GHGs.

Golden Algae Return to Dunkard Creek Area

This notice comes from the West Virginia DEP:

The Pennsylvania and West Virginia Departments of Environmental Protection have begun sampling and monitoring ponds and streams in the Dunkard Creek area after sampling found golden algae in a privately owned pond in Pennsylvania.

Golden algae was determined to be the cause of a fish kill in Dunkard Creek in the fall of 2009.

The pond is located just north of the West Virginia and Pennsylvania state line, downstream from the town of Blacksville. The discovery was made by staff of CONSOL Energy during routine monitoring and sampling.

CONSOL Energy reported its findings June 9 to the DEP in both states, which immediately sent staff to the area to collect samples from the pond and various sites along Dunkard Creek. The samples were sent to various experts with extensive experience studying algae. The departments are awaiting the results. On Tuesday, June 14, WV DEP staff flew over the area to see if they could spot any other water bodies with discoloration and target them for sampling.

"We are still very early in this process, and there is no evidence that the algae is having a toxic effect in the pond at this time," said Scott Mandirola, director of Water and Waste Management for WV DEP. "We are asking residents to be aware of this discovery and look for discoloration in their private ponds and area streams."

"Ever since this discovery, our staff has been in close contact with Dr. Bryan Brooks of Baylor University for guidance. He is one of the nation’s top algae experts, and we have been working with him for several years," PA DEP Southwest Regional Director George Jugovic said. "While there is no evidence to suggest the health of our streams is at risk, we urge residents to be attentive to any changes they notice and to report them to us right away."

Golden algae is not harmful to humans and is only harmful to aquatic life when it releases toxins. Experts have determined that an algae bloom that is not receiving enough nutrients will release toxins to kill nearby aquatic life to create the nutrients it needs to survive. There is no proven way to treat golden algae without also causing harm to all other forms of algae.

CONSOL had shut off discharges from its St. Leo operation prior to the discovery, and the Blacksville #2 discharge was shut down as a precaution. WVDEP, WV Division of Natural Resources, Pennsylvania DEP, PA Fish and Boat Commission and CONSOL Energy will continuously monitor for the algae as well as the overall quality of the water.

Area residents who have information to share with the regulatory agencies may do so by calling 304-368-3960 in West Virginia and 412-442-4000 in Pennsylvania.

Morgantown City Council to Vote on Rejecting Gas Wells

At its last meeting on June 7, Morgantown City Council  proposed prohibiting natural gas wells in the city, and a mile outside. (The attempt to ban drilling  outside its jurisdiction has caused some conflict with the county.)  That  led to this letter from Tim Carr, which does a good job of  pointing out some of the problems with the city's proposed ban. 

A final vote is scheduled for Tuesday June 21.  The gas industry is planning a rally in the Monongalia Court House Square  at 5 pm to show its opposition to the Council's plans.

The legislative delgation from Monongalia County and the City of Morgantown have been leaders in the opposition to natural gas drilling in the state.  The original opposition was based on the mistaken belief  that gas drillers dispose of excessive chlorides in the Monongahela River, the city's water supply.  It now appears to be based on the unwarranted fear that the pond that is used to contain fracking water will somehow spill into the Mon River. 

Petition Filed to Declare Blair Mountain Unsuitable for Mining

Derek Teaney of the Appalachian Center for the Economy and Environment has filed an application to have Blair Mountain declared unsuitable for mining. It is located on the DEP website here.  Blair Mountain has been in the news recently as the destination of a group of marchers who want to preserve  it as a memorial to those miners who fought in the Battle of Blair Mountain.  While there are no doubt some who want to preserve the mountain for its historical significance, it's likely that the Sierra Club, OVEC and others on whose behalf the petition is filed are looking for a high profile opportunity to oppose mountaintop mining.

It was surprising to note that, while the Battle is an important point in labor history in the Mountain State that is often cited by the UMWA,  it was  a setback for  union organizers.  The application contains a report on the history of the fight, with this passage:

In the aftermath of the insurrection, the UMW was severely weakened in West Virginia. Coal
operators and the state of West Virginia felt they could deal a deathblow to the union, and they took advantage of the situation (Blizzard 2004: 288). Leaders of the strike were tried on charges of treason against the state, and the lengthy trial drained the UMW’s funds (Blizzard 2004: 300). By the end of the 1920s only 512 union miners remained in West Virginia, a drop that was part of an overall nationwide decline in labor (Blizzard 2004: 343). But after the passage of the National Industrial Recovery Act in 1933, the southern coalfields rapidly organized and became a stronghold of union working class culture throughout the twentieth century.

We're better off with a country where people are free to organize, whether it be unions, environmental groups, or businesses.  And a society should preserve places of significant historical, cultural and natural significance. Those who place that value on the property should demonstrate that by raising the money to buy it, rather than deprive the owner of its right to use the property.   If the marchers want to stop development of Blair Mountain, let them pay fair market value for the property, or get the state or federal government to do it and place it in the park system, rather than use the "unsuitable for mining" process to deny Arch Coal the ability to develop the property.

EPA Announces Databases Providing Information on Hundreds of Chemicals

This information came from an EPA press release and may be of interest to anyone wishing to obtain the underlying data that was used to determine chemical toxicity.

Searchable databases on chemical toxicity and exposure data now available

WASHINGTON – The U.S. Environmental Protection Agency (EPA) is making it easier to find data about chemicals. EPA is releasing two databases — the Toxicity Forecaster database (ToxCastDB) and a database of chemical exposure studies (ExpoCastDB) — that scientists and the public can use to access chemical toxicity and exposure data. Improved access supports EPA Administrator Lisa P. Jackson’s priorities of protecting Americans’ health by assuring the safety of chemicals and expanding the conversation on environmentalism.
“Chemical safety is a major priority of EPA and its research,” said Dr. Paul Anastas, assistant administrator of EPA’s Office of Research and Development. “These databases provide the public access to chemical information, data and results that we can use to make better-informed and timelier decisions about chemicals to better protect people’s health.”       
ToxCastDB users can search and download data from over 500 rapid chemical tests conducted on more than 300 environmental chemicals. ToxCast uses advanced scientific tools to predict the potential toxicity of chemicals and to provide a cost-effective approach to prioritizing which chemicals of the thousands in use require further testing. ToxCast is currently screening 700 additional chemicals, and the data will be available in 2012.
ExpoCastDB consolidates human exposure data from studies that have collected chemical measurements from homes and child care centers. Data include the amounts of chemicals found in food, drinking water, air, dust, indoor surfaces and urine. ExpoCastDB users can obtain summary statistics of exposure data and download datasets. EPA will continue to add internal and external chemical exposure data and advanced user interface features to ExpoCastDB.
The new databases link together two important pieces of chemical research — exposure and toxicity data — both of which are required when considering potential risks posed by chemicals. The databases are connected through EPA’s Aggregated Computational Toxicology Resource (ACToR), an online data warehouse that collects data on over 500,000 chemicals from over 500 public sources.
Users can now access 30 years worth of animal chemical toxicity studies that were previously only found in paper documents, data from rapid chemical testing, and various chemical exposure measurements through one online resource. The ability to link and compare these different types of data better informs EPA’s decisions about chemical safety.
More information about the databases:
ToxCastDB: http://actor.epa.gov/actor/faces/ToxCastDB/Home.jsp ExpoCastDB: http://actor.epa.gov/actor/faces/ExpoCastDB/Home.jsp ACToR: http://actor.epa.gov

March on Blair Mountain

Here's the Wall Street Journal's report on the march by anti-coal activists on Blair Mountain, site of a battle between union miners and company security  in 1921.

Video Explains Natural Gas Drilling Techniques.

Anyone interested in understanding natural gas drilling and fracking should head to the WVONGA (West Virginia Oil & Natrual Gas) website  for a fantastic video on how vertical and horizontal drilling is done.  The video explains drilling into sandstone, but it's no different for shale formations. Click on Drilling Techniques to start the video. 

Sun Activity Expected To Drop Significantly

One of the crucial aspects of climate change that is seldom mentioned by global warming partisans is the effect of the sun on climate.  To a layman like myself, that would seem to be a big oversight.  Watts Up With That is reporting that the American Astronomical Society is predicting a big drop in solar activity beginning in a few years. 

A missing jet stream, fading spots, and slower activity near the poles say that our Sun is heading for a rest period even as it is acting up for the first time in years, according to scientists at the National Solar Observatory (NSO) and the Air Force Research Laboratory (AFRL).
As the current sunspot cycle, Cycle 24, begins to ramp up toward maximum, independent studies of the solar interior, visible surface, and the corona indicate that the next 11-year solar sunspot cycle, Cycle 25, will be greatly reduced or may not happen at all.

The results were announced at the annual meeting of the Solar Physics Division of the American Astronomical Society, which is being held this week at New Mexico State University in Las Cruces:

http://astronomy.nmsu.edu/SPD2011/

All three of these lines of research to point to the familiar sunspot cycle shutting down for a while.

“If we are right,” Hill concluded, “this could be the last solar maximum we’ll see for a few decades. That would affect everything from space exploration to Earth’s climate.”

ORSANCO To Hold Ohio River Sweep June 18

==

Thousands of volunteers are expected to participate in this year’s Ohio River Sweep, collecting trash and debris off the banks of the river, from its origin in Pittsburgh, Pa., to its end in Cairo, Ill. The annual cleanup, sponsored by the Ohio River Valley Water Sanitation Commission (ORSANCO), is scheduled for Saturday, June 18.

The West Virginia Department of Environmental Protection is coordinating cleanups at 23 sites in 12 counties in West Virginia. The counties are Brooke, Cabell, Hancock, Jackson, Marshall, Mason, Ohio, Pleasants, Tyler, Wayne, Wetzel and Wood. Volunteers will be provided with trash bags and gloves and will receive a free T-shirt. Volunteers are not required to register in advance.

The River Sweep is among the largest cleanup events of its kind in the United States. More than 20,000 volunteers from the six states bordering the river are expected to collect over 20,000 tons of trash and debris from the Ohio River and its tributaries. All trash is either recycled or disposed of in an environmentally acceptable manner.

For more information from ORSANCO contact 1-800-359-3977.

Skin Products Are Hazardous Wastes?

The Minnesota Department of Health has asked residents to stop using certain skin lightening products that contain high levels of mercury, and to dispose of the creams as a hazardous waste.  Some of the creams had mercury levels as high as 33,000 parts per million. To put that in context, the Ohio River  Water Sanitation Commission (ORSANCO Pollution Control Standards  requires discharges of mercury in wastewater from factories or municipalities to be below 12 parts per trillion, absent a variance:

What Does A Ton Of CO2 Look Like?

Ecogeek has this explanation of what a ton of CO2 looks like. It would be interesting to do the same thought experiment with the size of the atmosphere, given that CO2 is less than .04% of the atmosphere, and is needed to sustain life.  And it would be interesting to know the amount of SO2 coming out of this volcano in Chile.

Kennedy Film Opposing Surface Mining Opens in Charleston

Robert Kennedy's latest atack on surface mining, "The Last Mountain", was shown in Charleston last night.  Ken Ward provides this review of the film. Bloomberg News has this account of the film.

I haven't seent he film, so I can't judge it.  I hope, though, it shows why residents of the affected counties keep electing representatives who suport the coal industry.  There must be some popular support for the industry in coal-mining  counties, if only because it's the mainstay of the tax base.  And it's probably too much to hope that the film would report on Mr. Kennedy's personal investment in alternative energy, which is heavily subsidized and would benefit from elimination of coal as a fuel.  I suspect there's no mention of his NIMBY opposition to a wind farm near the Kennedy family compound in Hyannis Port, even while he's encouraging wind farms in West Virginia.

DEP Water Quality Standards Meeting Set For June 30

The Department of Environmental Protection’s Water Quality Standards quarterly public meeting is scheduled for Thursday June 30 from 1 to 3 p.m. 

The meeting will take place in the Coopers Rock Conference Room of the Department of Environmental Protection headquarters, located at 601 57th Street SE, Charleston, WV. 

A meeting agenda will be posted on the Water Quality Standards Program website http://www.dep.wv.gov/WWE/Programs/wqs about a week prior to the meeting.

What Waters Are Protected?

In West Virginia just about all waters are subject to some form of oversight, either surface waters, through the WV Water Pollution Control Act, or ground water, through the  Groundwater Protection Act. Surface waters are protected through surface water quality standards and the NPDES program, which issues general and individual permits, while groundwater is protected by groundwater quality standards and best management practices that are required for industrial and municipal facilities.

The recent debate over how much protection is afforded the nation's waters ignores these state programs and focuses solely on the extent to which the Clean Water Act and its federal programs extend. The  Supreme Court in the Rapanos  case came up with two tests for determining whether a water body falls within the Clean Water Act  ambit, one a plurality opinion by Justice Scalia and the concurring opinion by Justice Kennedy.   Both of those tests are more narrowly confined than the jurisdiction that EPA was asserting before Rapanos and the SWANCC case.

EPA and the Corps of Engineers have come up with a guidance for determining when waters fall under the jurisdiction of the Clean Water Act, and they are  taking comment on the guidance.  The guidance follows Justice Kennedy's approach, not surprising as his interpretation of the scope of the Act is broader than Scalia's. An explanation of the history of EPA's recent guidance on federal water jurisdiction is found here

The Clean Water Act is a great thing, but the suggestion by some that waters are abandoned to limitless pollution wherever the CWA doesn't apply is misleading.

Here's EPA's press release on the guidance:

 “Waters of the U.S.” Proposed Guidance Americans depend on clean and abundant water. However, over the past decade, interpretations of Supreme Court rulings removed some critical waters from Federal protection, and caused confusion about which waters and wetlands are protected under the Clean Water Act. As a result, important waters now lack clear protection under the law, and businesses and regulators face uncertainty and delay. The Obama Administration is committed to protecting waters on which the health of people, the economy and ecosystems depend.

U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers have developed draft guidance for determining whether a waterway, water body, or wetland is protected by the Clean Water Act. This guidance would replace previous guidance to reaffirm protection for critical waters. It also will provide clearer, more predictable guidelines for determining which water bodies are protected by the Clean Water Act.

The draft guidance will reaffirm protections for small streams that feed into larger streams, rivers, bays and coastal waters. It will also reaffirm protection for wetlands that filter pollution and help protect communities from flooding. Discharging pollution into protected waters (e.g., dumping sewage, contaminants, or industrial pollution) or filling protected waters and wetlands (e.g., building a housing development or a parking lot) require permits. This guidance will keep safe the streams and wetlands that affect the quality of the water used for drinking, swimming, fishing, farming, manufacturing, tourism and other activities essential to the American economy and quality of life. It also will provide regulatory clarity, predictability, consistency and transparency.

The draft guidance will be open for 60 days of public comment to allow all stakeholders to provide input and feedback before it is finalized.

Read more at http://water.epa.gov/lawsregs/guidance/wetlands/CWAwaters.cfm

EPA Issues Brownfield Grants to West Virginia

EPA Announces $467,000 Investment

to Clean Up Contaminated Sites in West Virginia

            PHILADELPHIA (June 6, 2011) -- The U.S. Environmental Protection Agency announced $467,000 in new investments that will help clean up abandoned industrial properties in West Virginia.  These brownfields investments will enable three communities in the state to move forward with plans for redeveloping and revitalizing areas for economic and environmental improvement. 

            “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 Jefferson County Development Authority to support cleanup efforts at the former Shepherdstown Dump in Shepherdstown, a historic village on the Potomac River.  The site is known to contain carcinogens.  Cleanup work will reduce risks to human health and the environment and is expected to allow the Development Authority to move forward with plans to reuse the site as a public library. The new library is expected to create jobs and improve literacy programs for local residents.

• $200,000 to the City of Ranson in Jefferson County to support the cleanup of hazardous substances at the former Kidde Fire Fighting Foundry at 215 North Mildred Street. The vacant 5.5-acre site once operated as a brass and aluminum foundry that manufactured fire suppression equipment.  The site is contaminated with heavy metals and inorganic contaminants.  When the site is cleaned up, the city plans to redevelop it as Powhatan Place, an integral part of Ranson’s downtown revitalization plan.

• $67,000 to the Town of Addison, a rural community in Webster County that was once known for its extensive coal mining and timber industries.  The region’s industrial past has left behind many brownfields properties, including mine-scarred lands, sawmills, and abandoned railroads. Funds will be used to help clean up a former railroad site and reduce threats posed by contaminants in soil and groundwater. The cleanup work will allow the town to move forward with a master plan to reuse the site as a campground, museum, and tourism center.

            EPA’s brownfields program encourages redevelopment of America’s estimated 450,000 abandoned and contaminated waste sites. Brownfields grants help to assess, clean up and redevelop abandoned, contaminated properties known as brownfields.  Brownfields are sites where expansion, redevelopment, or reuse may be complicated by the presence or potential presence of a hazardous substance, pollutant, or contaminant. Grant recipients are selected through a national competition.      

Since the beginning of the program in 1995, EPA has invested 1,895 assessment grants totaling over $447.6 million, 279 revolving loan fund grants totaling more than $273.1 million, and 752 cleanup grants totaling $140.8 million.

 

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

 

Bill Introduced to Restrict EPA Interference with State Water Programs

Thanks to Jason Bostic and the WV Coal Association for information (and the summary below) regarding new federal legislation that has been  introduced in the U.S. House of Representatives by Nick Rahall (D-WV) and John Mica (R-FL) regarding the federal Environmental Protection Agency’s (EPA) role and authority with respect to state delegated Clean Water Act (CWA) Section 402 programs, state-issued CWA Section 401 water quality certifications and CWA Section 404 permits issued by the U.S. Army Corps of Engineers (Corps). 

The legislation addresses concerns raised by EPA's interference in the state administered programs and the Corps’ permitting process by limiting EPA’s ability to advocate for the imposition of ad-hoc water quality standards through NPDES comment and objection letters and Section 404 comments. 

Specific to West Virginia and coal mining, the legislation addresses virtually every point of contention between EPA and the State of West Virginia regarding the appropriate interpretation and implementation of the narrative water quality standard and the federal agency’s attempts to hijack that standard by virtue of the April 1, 2010 (conductivity) Guidance Document and objections to individual, mine-specific NPDES permits. 

The bill also focuses on EPA’s abuses of the CWA Section 404 permitting program by limiting EPA’s ability to nullify a state-issued CWA 401 water quality certification, installing statutory time frames for EPA comments on pending CWA Section 404 permits and prohibiting EPA from vetoing a Corps-issued permit unless the state water quality regulatory authority agrees with EPA’s determinations. 

The primary sections of the bill include:

Water Quality Standards

1.  Provisions barring EPA from promulgating a new / revised water quality standard for a given pollutant where a state has promulgated and received EPA approval for an existing standard for that pollutant unless the state agrees with EPA’s determination that such a revised standard is necessary to satisfy the CWA.

NPDES / CWA Section 402 Permitting

1.     Provisions prohibiting EPA from objecting to the issuance of a NPDES permit by a state based on:

a.     EPA’s interpretation of a state promulgated and EPA approved water quality standard.

b.    The implementation of any guidance document by EPA that attempts to interpret state promulgated water quality standards.

NPDES / CWA Section 402 State Permit Programs

1.     Provisions restricting EPA from withdrawing approval or limiting federal grant assistance for state-implemented CWA Section 402 permitting programs based on:

a.     Disagreement between the state and EPA regarding the appropriate interpretation and implementation of a state promulgated and EPA approved water quality standard.

b.    Disagreement between the state and EPA regarding the interpretation and implementation of any guidance document by EPA that attempts to interpret state promulgated water quality standards.

Corps CWA Section 404 Permitting Programs

1.     Prohibits EPA from vetoing existing/pending CWA Section 404 permits unless the state in which the project is / will be located agrees with EPA’s conclusions regarding unacceptable adverse effects.

2.     Allows states to assume partial delegation of authority to administer the CWA Section 404 permitting program (states could assume Section 404 permitting responsibility for certain activities and not others--- coal mining operations but not nuclear waste facilities).

3.     Provides statutory deadlines for federal agency comments to be submitted to the Corps on pending Section 404 permit applications—(30 days with additional extension to 60 days).

4.     Prohibits EPA from taking any actions to supersede, disapprove or nullify a state’s finding that a Corps’ authorized Section 404 project will not cause or contribute to violations of state water quality standards per CWA Section 401 (state water quality certification). 

Texas Files Brief in Challenge to EPA's Endangerment Finding

In order to regulate greenhouse gases (GHGs) EPA had to make a finding that they present a danger to human health and the environment, something that is referred to as an endangerment finding. Several states and organizations, including the West Virginia Manufacturers Association, have challenged that finding.  They have an uphill fight, given the deference afforded EPA on these types of  decisions, a point made in statements by University of Vermont law professor Pat Parenteau, as reported by Reuters. 

Texas recently filed its brief explaining why the EPA acted arbitrarily and capriciously in issuing its endangerment finding. I think Texas made a strong case that EPA erred when it made an endangerment finding without stating the standard for determining when a danger is posed, and in failing to consider whether mitigation and adaptation were reasonable alternatives to GHG regulation.  I would have liked to have seen more about EPA's reliance on questionable data in making the endangerment finding, but Texas probably went with its strongest administrative law arguments, rather than ask the DC Circuit to weigh the science.

West Virginia DEP Awards Environmental Prizes to Youth Groups

My first reaction, emanating from my inner Scrooge, is what are we doing using state funds for this? When budgets are tight, why are we handing out cash awards named for politicians?  But then I noticed that some of the awards are sponsored by private businesses, and probably some are paid for by Supplemental Environmental Projects, so state funds may not be involved at all. And anyway, most of these appear to have involved kids working in the open air, and there's not enough of that today anyway.  So in the last half hour I've worked myself around to being a strong supporter. Here's the press release:

Youth groups and individuals received awards totaling more than $11,000 during the recent West Virginia Youth Environmental Day at North Bend State Park in Cairo.

Sponsored by the state Department of Environmental Protection on May 21, the 48th annual Youth Environmental Day drew more than 1,000 young people from across the state.

Awards were presented based on participation in community environmental projects that included litter cleanups, recycling drives, school beautification projects, tree planting, backyard composting, wildlife management, watershed protection and much more.

Following is the list of winners:

Rick Vecellio Memorial Scholarship -- Amanda Hannon, Mountaineers 4-H Club, Mason County. This scholarship is presented to an active Youth Environmental Program member with exemplary conduct throughout his/her school years.

Recipient receives $2,500 per year for four years.

West Virginia Forestlands & Wood Products Art Awards -- Gage Smith, Greenwood Wildcats 4-H Club, Doddridge County (grade school); Adrianna McCoy, Mountaineers 4-H Club, Mason County (middle school); Cody Gallagher, Busy Bison 4- H Club, Marion County (high school). Three $150 awards are presented for art creations that promote West Virginia’s forest resources or wood products created from these forests.

Sustainable Forestry Art Poster Award -- Gweneth Paige Ashman, Daisy Troop 4988, Roane County. This $150 award is presented for the poster that best expresses ideas on sustainable forestry.

Maple Award (tree planting) -- Mountwood Park Youth, Wood County. This $150 award is presented to the youth group completing the best tree planting project. 

Go-Mart Corporate Energy Essay Award -- Mary Jorgensen, Winfield High Environmental Action Club, Putnam County.

First place $125.

Bear Category Environmental Award -- Wilsonburg New Horizon 4-H Club, Harrison County. This $500 award is presented to a youth group, whose members are ages 12-14, completing projects that answer an environmental need.

Litter Control Award -- Busy Bison 4-H Club, Marion County.

This $250 award is for the youth group that has completed the most successful litter clean-up projects. 

Mountain Laurel Category Environmental Award -- Haer Bears 4-H Club, Mason County. This $500 award recognizes youth groups, ages 6-11, which have completed projects addressing an environmental need.

Cardinal Art Poster Awards – (Two first-place winners) Sarah Pomeroy, Midway Meridians 4-H Club, Putnam County.

Faith Cook, Golden Stars 4-H Club, Mason County. Cardinal Art Posters must depict an environmental theme. They are judged on originality, quality, and choice of theme.

Rick Vecellio Memorial Art Poster Awards – (Five winners) Michael King, Busy Buddies 4-H Club, Mason County; Matthew Richardson, Roadrunners 4-H Club, Mason County; Josie Hill, Haer Bears 4-H Club, Mason County; Lily Pauley, Winfield Scotts 4-H Club, Putnam County; Amanda King, Busy 4’s 4-H Club, Mason County. The $100 awards are given for posters that depict an environmental theme, judged on originality, quality, and choice of theme.

Gov. Earl Ray Tomblin Beautification Award -- Boy Scout Troop and Crew 32, Hampshire County. The $150 award is presented to the youth group that completes the most outstanding job of community litter prevention, clean-up and beautification.

Keep West Virginia Beautiful Awards -- Sand Hill Explorers 4-H Club, Wood County. The $125 award is presented for the most outstanding litter prevention project conducted for a school.

Mountain State Award of Excellence Environmental Project -- Highland School Hawks Conservation Club, Ritchie County.

This $500 award is for clubs with projects answering an environmental need, that have also won first place in the past two years in the Mountain Laurel, Bear and Rhododendron categories.

DEP Cabinet Secretary Randy C. Huffman Brook Trout Kindergarten Award -- Belleville 4-H Cloverbuds, Wood County. This $200 award is presented to the kindergarten group that completes the most outstanding environmental projects.

Youth Environmental Hall of Fame Awards -- Elaine Ashman, Girl Scout Troop 4988, Roane County. Cody Gallagher, Busy Bison 4-H Club, Marion County. The $100 awards go to the outstanding boy and girl who are nominated based on their extensive involvement in their club’s community environmental activities.

Stream and Trails Award -- Sharp Shooters Shooting Sports 4- H Club, Wood County. This $100 award goes to the youth group that has shown the most effort in cleaning a stream and/or building or maintaining a trail.

Pepsi Cola District Awards – (Given to youth groups in each of the six districts in recognition of their overall community environmental efforts). Each receives $100.

District 1: Cross Roads 4-H Club, Marion County. District

2: Jersey Mountain Workers 4-H Club, Hampshire County.

District 3: Horner Busy Bees 4-H Club, Lewis County.

District 4: Hinton Helping Hands 4-H Club, Summers County.

District 5: Ashton Elementary Second Grade, Mason County.

District 6: Comet Cardinals 4-H Club, Jackson County.

Environmental Achievement Award -- Greenwood Wildcats 4-H Club, Doddridge County. This $125 award is presented to a newly enrolled youth group that has shown the most progress through participation in community environmental projects.

Rhododendron Category Environmental Awards -- Winfield High School Environmental Action Club, Putnam County. This $500 award is presented to a youth group completing projects that answer an environmental need, whose members are ages

15 years and older.

Recycling Awards -- Hill Billie 4-H Club, Mason County.

This $300 award is presented to a  youth group with the best overall recycling projects. The projects are judged not only on the total pounds recycled, but also on the diversity of recyclables and community involvement.

Wildlife Management Award -- Go Getters 4-H Club, Mason County. This $200 award is presented to a youth group completing a wildlife management project that encompasses food, water and cover for West Virginia’s wildlife, especially during the winter months.

Recycling Education and Awareness Award -- Cow Creek Hi Strivers 4-H Club, Putnam County. This $150 award is given to the youth group with the best community recycling education and awareness project based on club and community involvement.

Save Our Streams Award -- Lucky Leaf 4-H Rhododendron Club, Randolph County. This $100 award is given to the youth group whose project(s) meets the goals of the Save Our Streams Program, which are increasing West Virginia’s ability to monitor the quality of state rivers and streams and enhancing public awareness of the need for their protection.

Kroger Plastic Recycling Awards -- Midway Getters 4-H Club, Preston County. This $250 award encourages recycling plastic shopping bags.

Environmental Education Award -- Mountaineers 4-H Club, Mason County. The award is presented to the youth group that has completed the most outstanding work in environmental education by creating public awareness on environmental issues such as recycling, litter laws, hunter safety, hazardous waste, nongame wildlife, etc.

Watershed Protection Award – Boy Scout Troop 250, Kanawha County. The $250 award is given to the youth group that shows the most effort in watershed protection, education and community awareness. 

REAP Adopt-A-Spot Award -- Schultz Ridge Runners 4-H Club, Pleasants County. This award is presented to the youth group with an Adopt-A-Spot that has maintained the spot with three reported cleanups and that has planted and maintained flowers on the spot for each blooming season.

North Bend Clean & Green Litter Control Award -- Cub Scout Pack 47, Wood County. This $200 award is presented to the youth group that completes the most outstanding job of litter prevention and cleanup efforts at North Bend State Park, especially during Youth Environmental Day.

West Virginia State Parks Superintendents Association Award -- Pony Pals 4-H Club/Summers County Green Team, Pence Springs. This $250 award was established by the late Steve Boler, superintendent of Pipestem Resort State Park, to foster relationships between local youth groups and state parks, forests and wildlife management areas.

REAP Recycling Power Point Presentation Awards -- Girl Scout Troop 4988, Roane County. This award was created for those youth groups wishing to step up their involvement in environmental activities by creating a Recycling Power Point Presentation. The presentation includes the community environmental impact, the educational impact and media coverage of the group’s recycling project.

WV Department of Environmental Protection Announces Rule Proposals for 2010

Below is an excellent summary, by division, of the rules DEP plans to propose for the 2012 Legislative session. This was prepared by Kristin Boggs, general counsel for the DEP.

Division of Air Quality

45 CSR 8 – Ambient Air Quality Standards – Annual incorporation by reference amendments to the NAAQS, including Primary National Ambient Air Quality standard for sulfur dioxide.

45 CSR 14 – Permits for Construction and Major Modification of Major Stationary Sources of Air Pollution for the Prevention of Significant Deterioration – Revisions to the rule incorporate changes to the federal counterpart, "Prevention of Significant Deterioration for Particulate Matter Less Than 2.5 Micrometers – Increments, Significant Impact Levels and Significant Monitoring Concentration."

45 CSR 16 – Standards of Performance for New Stationary Sources – Annual incorporation by reference amendments to the NSPS.

45 CSR 18 – Combustion of Solid Waste – The revised rule incorporates by reference the amended Standards of Performance for New Commercial and Industrial Solid Waste Incineration Units and sets forth emission guidelines for existing commercial and industrial solid waste incineration units.

45 CSR 19 – Permits for Construction and Major Modification of Major Stationary Sources of Air Pollution Which Cause or Contribute to Nonattainment – Revisions to the rule include new significant impact levels promulgated by EPA.

45 CSR 25 – Control of Air Pollution from Hazardous Waste Treatment, Storage and Disposal Facilities – Revisions to the rule include annual incorporation-by-reference updates.

45 CSR 30 – Requirements for Operating Permits – Revisions to the rule implement the provisions of EPA’s final Greenhouse Gas Tailoring Rule. Language is added that is intended to rescind elements of the Tailoring Rule if a court, Congress, EPA or the President finds that GHGs are not subject to regulation. In order to effect the provisions of the Tailoring Rule as soon as practicable, and in accordance with EPA-mandated timelines, West Virginia has adopted this rule as an emergency rule.

45 CSR 34 – Emission Standards for Hazardous Air Pollutants – Annual incorporation-by-reference revisions to the Hazardous Air Pollutant rule.

45 CSR 35 – Requirements for Determining Conformity of General Federal Actions to Applicable Air Quality Implementation Plans (General Conformity) – This revised rule incorporates by reference the following provisions of 40 CFR 93: Revisions to the General Conformity Regulations.

45 CSR 42 – Greenhouse Gas Emissions Inventory Program – DAQ is proposing to repeal this rule because on October 30, 2009, EPA promulgated standardized greenhouse reporting requirements, "Mandatory Reporting of Greenhouse Gases." Because 45 CSR 42 was promulgated before the EPA finalized its mandatory greenhouse gas reporting requirements, and the rule’s approach to greenhouse gas reporting was significantly different from EPA’s final approach, the DAQ has determined that sources subject to EPA’s Mandatory Reporting of Greenhouse Gases shall not be also subject to the differing requirements of this State rule. To further eliminate this conflict, the DEP will take steps to amend W. Va. Code § 22-5-19, which authorizes the Secretary to propose legislative rules establishing a Greenhouse Gas Inventory Program. Such amendment to the Code will provide for the Cabinet Secretary to allow reporting under EPA’s Mandatory Reporting of Greenhouse Gases to satisfy greenhouse gas reporting requirements in West Virginia.

　

Division of Water & Waste Management

33 CSR 1 – Solid Waste Management Rule – Revisions to this rule are to add the definition of "covered electronic devices" to the list of defined terms and to add covered electronic devices as an unacceptable waste banned from disposal in the State’s landfills. This revision is necessary due to the passage of Senate Bill 298 on March 12, 2010, which amended and reenacted W. Va. Code § 22-15A-25 to ban certain electronic devices from landfill disposal.

33 CSR 20 – Hazardous Waste Management Rule – Revisions to the rule include annual incorporation-by-reference updates from the federal counterpart. Further, DWWM proposes to amend the rule to reflect that the authority it previously transferred to the Division of Highways to regulate hazardous waste on the highways has been transferred by statute to the Public Service Commission when the Weights & Measures Section was transferred from the DOH to the PSC.

Division of Land Restoration

60 CSR 3 – Voluntary Remediation and Redevelopment Rule – This rule is being revised to update the de minimus clean-up standards. This change is necessary, because the toxicological profiles for many chemicals in the federal IRIS database have been revised, which necessitates changes to the de minimus table.