Clean Water Cooperative Federalism Act of 2011 Summarized

The following summary of the Clean Water Cooperative Federalism Act was written by the Congressional Research Service, a nonpartisan arm of the Library of Congress. This is the legislation being advanced by House Republicans in response to interpretations of state water quality standards that are being advanced by EPA in Florida (where EPA is requiring development of nutrient standards) and West Virginia (where EPA has recently finalized a guidance interpreting West Virginia's narrative water quality standard for toxicity). 7/8/2011--Reported to House amended. Clean Water Cooperative Federalism Act of 2011 - Amends the Federal Water Pollution Control Act (commonly known as the Clean Water Act) to prohibit the Administrator of the Environmental Protection Agency (EPA) from: (1) promulgating a revised or new water quality standard for a pollutant when the Administrator has approved a state water quality standard for such pollutant unless the state concurs with the Administrator's determination that the revised or new standard is necessary to meet the requirements of such Act; (2) taking action to supersede a state's determination that a discharge will comply with effluent limitations, water quality standards, controls on the discharge of pollutants, and toxic and pretreatment effluent standards under such Act; (3) withdrawing approval of a state program under the National Pollution Discharge Elimination System (NPDES), limiting federal financial assistance for a state NPDES program, or objecting to the issuance of a NPDES permit by a state on the basis that the Administrator disagrees with the state regarding the implementation of an approved water quality standard or the implementation of any federal guidance that directs the interpretation of such standard; and (4) prohibiting the specification of any defined area as a disposal site for the discharge of dredged or fill material into navigable waters and denying or restricting the use of such area as a disposal site in a permit if the state where the discharge originates does not concur with the Administrator's determination that the discharge will result in an unacceptable adverse effect on municipal water supplies, shellfish beds, and fishery areas. Shortens the period in which the Director of the United States Fish and Wildlife Service must submit comments with respect to a general dredge and fill permit application. Requires the Administrator and other agencies to submit comments on an application for a general permit or a permit to discharge into navigable waters at specified disposal sites within 30 days (or 60 days if additional time is requested) after the date of receipt of such application. Applies this Act to actions taken on or after this Act's date of enactment, including actions taken with respect to permit applications that are pending or revised or new standards that are being promulgated.

EPA Finalizes Water Quality Guidance for Appalachian Mining

EPA has finalized its guidance on surface coal mining.  The centerpiece of the guidance is its interpretation of state narrative water quality standards to limit discharges from mine sites.  Narrative water quality standards are found in Section 3 of 46 CSR 2, and prohibit conditions like excessive sediment, color, toxicity, and other limitations that aren't assigned a precise numeric limitation.  For example, iron can't be present in most streams at levels that exceed 1.5 mg/L, but toxicity is more difficult to define in those terms.

This guidance is the impetus behind attempts by the House to prevent EPA from interpreting state water quality standards in a manner different than states.  

Links to the guidance and EPA studies are at the bottom of EPA's press release, which follows.

WASHINGTON — The U.S. Environmental Protection Agency (EPA) today released final guidance on Appalachian surface coal mining, designed to ensure more consistent, effective, and timely review of surface coal mining permits under the Clean Water Act and other statutes. The guidance, which replaces the interim-final guidance issued by EPA on April 1, 2010, is based on the best-available science and incorporates input and feedback from over 60,000 comments received from the public and key stakeholders. By providing EPA’s regional offices with the latest information on existing legal requirements, the guidance enables them to work together with states, the U.S. Army Corps of Engineers, mining companies, and the public towards a balanced approach that protects communities from harmful pollution associated with coal mining. EPA will apply the guidance flexibly, taking into account site-specific information and additional science to arrive at the best decisions on a case-by-case basis.

The science forming the basis for the interim-final guidance was also successfully applied in a number of mining decisions, including the Hobet 45 permit in West Virginia where EPA worked closely with a company to eliminate nearly 50 percent of their stream impacts, reduce contamination and lower mining costs. Successful outcomes resulting from the Corps' Coal Mac-Pine Creek permit decision also provide evidence that the practices in the interim guidance are both feasible and effective.

“Under this guidance, EPA will continue to work with other federal agencies, states, local communities, and companies to design mining operations that adequately protect our nation’s waters and people's health,” said Nancy Stoner, acting assistant administrator for EPA’s Office of Water. “We have a responsibility under the law to protect water quality and this guidance allows EPA to work with companies to meet that goal, based on the best science.”

EPA’s final guidance reflects significantly enhanced science, extensive public comment and experience working with federal and state agencies and mining companies. It is based on improved, peer-reviewed science on impacts of mountaintop mining; extensive public and stakeholder input; and, lessons learned from the implementation of the interim guidance. The final guidance, like the interim guidance, is not a rule and is not binding legally or in practice.
EPA is committed to working with coal companies and stakeholders to reduce and prevent harm to water quality and human health and over the past two and a half years, EPA has built a strong foundation, working with federal and state agencies and mining companies to significantly reduce impacts to the environment.

• In January 2010, EPA worked with the Corps on the Hobet 45 permit in West Virginia to reduce stream impacts by almost 50 percent and minimize mine runoff into surface waters.

• In June 2010, EPA worked to ensure that the permit issued for the Pine Creek mine included an enforceable trigger for protecting downstream water quality and ensuring that the overall mining operation could protect water quality.

• In July 2011, EPA worked with Mid-Vol, Inc. and the West Virginia Department of Environmental Protection to develop a Clean Water Act Section 402 permit that includes limits on ionic pollution to protect water quality.    

Mountaintop mining is a form of surface coal mining in which explosives are used to access coal seams, generating large volumes of waste that bury adjacent streams. The resulting waste that then fills valleys and streams can significantly compromise water quality, often causing permanent damage to ecosystems and rendering streams unfit for drinking, fishing, and swimming. It is estimated that almost 2,000 miles of Appalachian headwater streams have been buried by mountaintop coal mining.

To view the final guidance: http://www.epa.gov/owow/wetlands/guidance/mining.html

To view a copy of EPA’s Final Conductivity Benchmark Report as well as the Science Advisory Board’s final review: http://cfpub.epa.gov/ncea/cfm/recordisplay.cfm?deid=233809

EPA Insists on Review of Environmental Quality Board Orders

EPA has advised the West Virginia Department of Environmental Protection and the Environmental Quality Board that it (EPA) expects to review all decisions of the Board that modify a NPDES permit. The July 13, 2011 letter from John Capacasa, EPA Region 3 Water Protection Division, references the 1982 Memorandum of Agreement (MOA) between EPA and the WV DNR (the DEP’s predecessor) in which WV assumed authority for the NPDES permit program. In the MOA, EPA waives its right to review most NPDES permits that are issued or modified by the DEP, except for certain types of permits. Among those permits EPA wants to review are those that are modified by the EQB. Mr. Capacasa has asked that all permits that are modified by an EQB order be sent to it for review. “To implement the provision in the MOA for review of permits resulting from appeals to the EQB and prevent any additional delay in permit issuance, we request that WVDEP and the EQB use the following procedure. Where resolution of the appeal would result in a permit that differs from the original draft permit, WVDEP will submit the new draft or proposed permit to EPA for review as provided in the MOA. WVDEP should include with the new draft or proposed permit any orders from the EQB relating to the permit.”

The MOA (609955) and letter from Capacasa (609946) are attached here for those who would like to review them. The May 25, 1982 amendment to the MOA that is referred to in the Capacasa letter is in the back of the  MOA.

Technically speaking, there is no authority for the EQB to remand the permit to the DEP for modification under the statute (W. Va. Code 22B-1-7(g)(1)). Therefore, one wonders whether the DEP would even have jurisdiction to submit the permit and Board order to EPA for its review and approval. This process of requiring EPA review of Board orders raises a host of interesting questions, which may be answered by an appeal recently taken by the DEP of the decision of the Air Quality Board that remanded a permit for modification. The DEP took the position in that appeal that the Air Quality Board, whose review powers are similar to the EQB’s, cannot remand a permit to the Division of Air Quality in order to have the DAQ modify the permit.

Thanks to Allyn Turner, who acquired the letter.

Elk to Return to West Virginia?

It appears that mountaintop mining sites provide prime habitat for elk in Kentucky.  There is some question as to whether elk herds that were established in eastern Kentucky might expand into western West Virginia, and how the WV Division of Natural Resources might manage that new species.   The story is here from Metronews.

Coal Ash Bill Clears House Committee

First-time Congressman Dave McKinley has been busy.  He has been a vocal supporter of recent House action to limit the EPA's ability to change or interpret state water quality standards, and he has also sponsored legislation to prohibit  treating coal ash as a hazardous waste.  Vicki Smith of Bloomberg Business Week reports that:

The Coal Residuals Reuse and Management Act is the first bill from West Virginia's freshman Republican, Rep. David McKinley. It passed out of the Energy and Commerce Committee on a vote of 35-12 Wednesday night [June 21], with support from six Democrats.

Coal ash is a  byproduct of coal burning that is used in structural fills and concrete production, among other things.  Treating it as a hazardous waste, would effectively eliminate its reuse, and treating it as a special Subtitle D waste would also impose onerous restrictions on use of coal ash.

This bill has a good chance of appproval by the House, but faces an uphill climb in the Senate, and probable veto by President Obama. It is an attempt to force EPA's hand on coal ash regulation, as EPA is still trying to decide whether to regulate coal ash as a hazardous waste.  Pam Casey of the State Journal explains how the bill would prevent regulation of coal ash as a hazardous waste or a special waste.

Alternative Energy Not Cost or Maintenance Free

Developing cost-effective alternative energy is a national goal, as it should be.  Technology will continue to develop new ways of harnessing the wind, sun, earth and water to produce power.  However, some seem to have an idealistic view of what can be done with wind and solar, which at this time are too intermittent, and provide too little electricity, to power the grid of a modern economy.  Such alternative energy systems do not provide free power once they are installed.  There is maintenance of the system, and degradation of the components over time.

I thought this picture of a solar facility that is only a year or so old was illustrative of the ongoing costs associated with alternative energy sources. It's not enough to simply build the system and reap free power.

You can see a longer explanation at Watts Up With That website, here.  This is how the blog entry starts:

German solar skeptic website SOLARKRITIK.DE here provides the background on the rundown, weed-covered solar facility in former communist (and now “green”) East Germany, which I presented in my last post here.


It’s much worse than we thought. The story behind the above photo and the project itself appears here at the online Leipziger Volkszeitung newspaper. The facility is sprawled over an area of 20 acres. The Leipziger Volkszeitung newspaper wrote just before the facility went into operation:
More here

West Virginia DEP Holds Water Quality Standards Meeting

The DEP Division of Water and Waste Management held its quarterly meeting to discuss water quality standards on June 30, 2011.  Kevin Coyne, Assistant Director DWWM, led the discussion.

John Wirts reported on water data reporting, although I missed the first half of his presentation.  (John has now been promoted to Pat Campbell’s old job and is now managing the Watershed Assessment Branch.  Pat Campbell is now Deputy Director.)  He said that recent data from DEP monitoring is not in STORET (Storage and Retrieval Data Warehouse  http://www.epa.gov/storet/ ), which is the national data repository.  Also, state benthic data is not found on STORET.

Jason Heath of the Ohio River Water Sanitation Compact (ORSANCO)  talked about the changes that have been recommended by the public for changes to the Pollution Control Standards for the Ohio River, which ORSANCO Commissioners will consider this fall:

Selenium – if EPA finalizes its revised criteria for selenium, which at one time was going to be based on fish body burden,  ORSANCO may adopt it.

Bromides – Bromides contribute to TMH formation and are a problem for public water suppliers. High levels of bromides have been found in some Pennsylvania tributaries.

Temperature – review of information on aquatic life indicate minor adjustments to the criteria are needed.  In addition, there have been implementation questions (how temperature limits are written into permits) and there is a question as to whether maximum temperatures are required for human health criteria.

Design flow -  it is not always clear under what river flow conditions certain water quality criteria apply.  Changes may be made to clarify design flow  for all criteria.

Ammonia – new criteria may be required for protection of certain mussel species.  However, a proposed 1 mg/l for discharge would be more stringent for much of the year.

Nutrients -  developing nutrient (e.g., nitrogen and phosphorus)  criteria would be a 10 year process, with  no resolution in sight. ORSANCO is currently discussing new approaches to nutrient criteria development.

Mercury – the current criterion of 12 parts per trillion may not be necessary since the adoption of a fish tissue level of .3 mg/kg was adopted.  ORSANCO is forming a special work group to consider that change.

Manganese – the secondary MCL is 50 ug/l, but there is some problem with “black water” at 20 ug/l.  Treatment for manganese sometimes causes problem in treatment for bromides.

Formal proposal of changes to ORSANCO’s Pollution Control Standards will be made around February of 2012, with public comment through the Spring of 2012.

In other activity, at its June meeting the ORSANCO Commission adopted a TDS limit of 500 mg/L at the intake of a public water supply, but it is not being currently applied because there is a question as to whether a proper vote was taken. In addition, the Commission is working on a procedure for evaluating variance requests.

Following the presentation by Mr. Heath, Dave Flannery explained a situation that has arisen at a First  Energy (Mon Power) power plant that discharges to Daugherty Run.  The permit writer has assumed that the Category A use (public water supply) applies on that stream, whereas the West Virginia water quality standards only require the application of the Category B (aquatic life protection) and Category C (water contact recreation) uses.  First Energy is  asking that the DEP apply the water quality standards as written, since Daugherty Run is too small to be a public water supply, and in any event the company owns the property on either side, so no one could introduce a water withdrawal pipe. First Energy also had concerns about the Category C arsenic criterion of 10 ug/l, which is more stringent than any of our neighboring states.   In response, Mike Becher, the lawyer representing plaintiffs who have sued to prevent the relief requested by First Energy,  explained that they don’t want to see the changes made, which they believe would degrade the stream.

The next quarterly meeting will be held sometime in September.

McElwee Writes Book on Chinese Environmental Law

There was a great article by Paul Nyden in Sunday's paper about Charles McElwee II,  a Charleston native, who has written a book about environmental law in China. Mr. Nyden even got James Fallows to comment on the book.  You can find the article here.

A minor correction, though - his father is one of the founders of my firm, Robinson & McElwee, but he is not a partner.  He serves as of counsel, and is still a legal juggernaut. Charles II's brother, Doug McElwee, is a member of Robinson & McElwee, and is one of the managing members of the firm. Doug is also one of the premier title attorneys in the state.