Sign Up for Adopt-A-Highway

The state Department of Environmental Protection is accepting registrations for the Saturday, Sept. 24 Adopt-A- Highway Fall Statewide Cleanup. Volunteers have until Sept.

16 to register.

Co-sponsored by the DEP and the state Division of Highways, the Adopt-A-Highway program is administered by the DEP’s Rehabilitation Environmental Action Plan (REAP). Its goals include improving the quality of our environment by encouraging public involvement in the elimination of highway litter.

Individuals, families, churches, businesses, schools, civic organizations, government agencies and communities can register to pick up trash on almost any state-maintained road, back road or main route. Private roads and interstate highways cannot be adopted.

The Adopt-A-Highway program provides garbage bags, work gloves and safety vests to volunteers. The state also takes care of disposing of collected trash. Volunteers must be at least 12 years old to participate.

This year’s spring Adopt-A-Highway cleanup in April brought together more than 6,000 volunteers. They cleaned up more than 1,000 miles of West Virginia roads and picked up 6,220 bags of litter.

To register, call 1-800-322-5530 or send an email to:

dep.aah@wv.gov. If you reach the REAP voicemail, please leave your ID, phone number, group name, date of cleanup, number of participants and the county where your adopted road is located.

DEP Seeks Comment On Horizontal Gas Well Emergency Rule

The rule proposed by the  West Virginia Department of Environmental Protection for horizontal wells (see last week's post)  is an emergency rule.  It is not a permanent rule, and must still be approved by the Legislature.  Otherwise, they lapse after  15 months. That means the horizontal well emergency rule must be approved during the 2012 session if it is to remain in effect.  Once the rule has lapsed, it cannot be reproposed as an emergency rule.

In West Virginia, most executive branch rules have to be approved by the Legislature,  like statutes. They are usually bundled in rules packages, but other than that they go through committees and must be passed like other legislation. The statue that governs rulemaking is found in W. Va. Code 29A-3-1 et seq. The pertinent requirements for  rulemaking are in Sections 15, 15a and 15b.

All of which is to say that there is more that has to be done before the emergency rule becomes a final legislative rule, and the DEP will have to develop support for it if it is to remain effective. Here's the DEP press release giving notice that it is asking for comments on the rule:   

The West Virginia Department of Environmental Protection is seeking public input on its Well Site Safety Plan Standards and Casing and Cementing Standards that are referenced in the DEP’s Emergency Rule for horizontal drilling, filed Aug. 22 with the Secretary of State’s Office.

As part of the rule, all applications for well work permits involving well sites that will disturb three acres or more of surface must include a well site safety plan to spell out what steps will be taken to protect persons on site, as well as the general public and the environment. The plan is to be developed in accordance with standards developed by the DEP’s Office of Oil and Gas (OOG).

The Emergency Rule also includes operational rules intended to protect water quantity and quality and instructs operators to construct wells and conduct casing and cementing activities of all horizontal wells in accordance with OOG standards.

Public input on the OOG standards will be accepted until Sept. 30, 2011, and can be mailed to the Office of Oil and Gas, 601 57th St., S.E., Charleston, WV., 25304 or emailed to DEP.comments@wv.gov. Copies of the OOG standards can be viewed by clicking on the Office of Oil and Gas section on the DEP homepage at: www.dep.wv.gov.

As directed by Gov. Earl Ray Tomblin on July 12 in Executive Order No. 4-11, the DEP filed its Emergency Rule to increase regulatory oversight of horizontal well development in the state.

Quarterly Water Quality Meeting September 21

Anyone interested in West Virginia water quality standards should consider coming to the quarterly meetings held by the WV DEP

      The Department of Environmental Protection’s Water Quality Standards Program quarterly public meeting is scheduled for Wednesday September 21 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 prior to the meeting.  For more information about this meeting, please contact Kevin Coyne at (304) 926-0499 or via email at Kevin.R.Coyne@wv.gov

USGS Dramatically Increases Estimates of Marcellus Reserves

The United States Geological Survey has greatly increased the size of the Marcellus Shale play:

Coal Dams Will Be Inspected for Earthquake Damage

From the DEP:

In response to today’s earthquake, the West Virginia Department of Environmental Protection’s Division of Mining and Reclamation plans to inspect all Class C coal-related impoundments in the state by tonight, DMR Director Tom Clarke said.

Class C impoundments have high hazard potential.

Inspections will be done in consultation with the DMR’s regional dam engineer. All other impounding structures and embankments should be examined within 72 hours, Clarke said.

All of the DMR’s inspection staff and engineers were certified or re-certified in impoundment inspection earlier this month.

West Virginia Issues New Horizontal Well Rules

The West Virginia Department of Environmental Protection has issued a new rule that applies to horizontal wells, which are generally associated with the Marcellus Shale formation. The Governor issued an Executive Order a month ago requiring the DEP to issue the rule, so this rulemaking is not unexpected. 

A couple of points about the rule.   The first is that the emergency rule has to be approved by the Secretary of State, or the rule becomes effective 42 days after filing, if the Sec. of State takes no action. However, the Secretary of State has been known to reject emergency rules where there was no emergency (I believe Ken Hechler rejected some out-of-cycle water quality standard changes several years ago.)  There really is no emergency here, and this rule could be taken up by the Legislative Rule-making Review Committee during the Legislative Session that starts in January. 

The second point is that the rule arguably includes provisions that are not derived from the statutory sections cited as the authority for the rule. Sections 22-1-3 (the DEP Secretary's authority to issue rules); 22-6-2 (the powers and duties of the DEP Secretary to regulate certain aspects of the oil and gas industry); and 22-11-4(a)(16) (authority to issue rules to implement the WV Water Pollution Control Act) do not seem to provide a basis for some of the more far-reaching aspects of the rule, particularly the water withdrawal provisions. 

The DEP's press release follows with more detail.  Here is a link to the rule. 

The West Virginia Department of Environmental Protection, as directed on July 12 by Gov. Earl Ray Tomblin in Executive Order No. 4-11, filed an emergency rule today with the Secretary of State’s Office to increase the DEP’s regulatory oversight of horizontal well development in the state.

The rule, which adds new permit application requirements for operators drilling horizontal gas wells, as well as new operational rules to protect the state’s water quality and quantity, will become effective after approval by the Secretary of State and remain in effect for 15 months. 

The emergency rule is intended to help the DEP better regulate the state’s growing natural gas industry, which is benefitting from improved horizontal drilling techniques that allow operators to more easily access deep shale gas, such as that found in the Marcellus Shale. Those same drilling techniques involve significant surface area disturbances and large-volume hydraulic fracturing that uses millions of gallons of water per well.

The rule adds specific language to the state Office of Oil and Gas regulatory program that requires operators to include an erosion and sediment control plan and site construction plan, certified by a registered professional engineer, and a well site safety plan for well work permit applications involving well sites that disturb three acres or more of surface.

The rule also requires permit applicants to submit a water management plan if they intend to use more than 210,000 gallons of water during any one-month period. The water management plan shall include information such as type of water source -- surface or ground water; the counties from which water withdrawals will be taken; latitude and longitude of each anticipated withdrawal location; anticipated volume of each withdrawal and anticipated months withdrawals will be made; planned management and disposition of wastewater from fracturing and production activities; a listing of anticipated additives to be used in the water for fracturing; and, upon well completion, the listing of actual additives that were used.

Permit applicants, drilling within the boundaries of any municipality, are also required to place a legal newspaper advertisement in the area where the well is proposed. No well work permit will be issued until 30 days notice has been provided to the public.

In addition to permit application requirements, the rule adds operational language that instructs companies to protect the quality and quantity of surface and ground water systems both during and after drilling operations and during reclamation; requires operators to comply with record-keeping requirements for the quantity of flowback water from hydraulic fracturing and the method of management or disposal of the flowback; stipulates that all drill cuttings and drilling mud be disposed of in an approved solid waste facility; and adds casing and cementing standards to prevent the migration of gas and other fluids into fresh ground water and coal seams.

Gov. Tomblin said he remains optimistic about the potential of West Virginia’s emerging natural gas industry as a plentiful energy source for the state and nation, as well as its potential to create thousands of good-paying jobs and revitalizing the state’s chemical and manufacturing industries.

“Still, we must work hard to make sure our efforts to capitalize on opportunities such as the Marcellus Shale are regulated responsibly and done in ways that protect our citizens and the environment,” Tomblin said. “I believe this emergency rule is a key first step to accomplishing that goal, but there is much work to be done.”

DEP Cabinet Secretary Randy Huffman said: “As Gov. Tomblin has pointed out, this is not the end of the debate, but only the first step in addressing the myriad of concerns our citizens have regarding this practice. There is much discussion and debate yet to take place. And we look forward to working with the legislature to ensure a comprehensive approach to regulating horizontal drilling is addressed.”

To view the rule go to www.dep.wv.gov and click on Oil and Gas.

Kanawha River Clean Up Scheduled for September 10

The 22nd 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. 10.

Cleanup sites along the Kanawha River will include the beach at Winfield Locks; Roadside Park in St. Albans; Magic Island in Charleston; and Kanawha Falls, near Glen Ferris.

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 140 volunteers collected 7.75 tons of litter and debris and 152 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.

ORSANCO Adopts Total Dissolved Solids Water Quality Criterion

Last year the Ohio River Water Sanitation Commission (ORSANCO) proposed adopting a water quality criterion for total dissolved solids (TDS) of 500 mg/L, but the decision was suspended  temporarily while the Commission worked out a procedural issue.  That has now been resolved and the standard has been adopted. The following is found at page 11 of the 2011 Pollution Control Standards:

 

D. Taste and Odor Protection

To protect drinking water supplies from adverse taste and odor, the following

criteria shall be met at Ohio River drinking water intakes:

TOTAL DISSOLVED SOLIDS: Concentration shall not exceed 500 mg/L at

river flows equal to or greater than the minimum 7-day, 10-year flow.

TDS. Ordinarily, water quality standards must be met at the discharge point or at the edge of a mixing zone, within a few hundred feet downstream of the discharge pipe.  In that case, the permit  writer sets the permit limit of a pollutant after calculating how quickly the pollutant will be diluted once it is discharged, in order to avoid any concentration of the pollutant above water quality standards near the discharge.  With TDS, the permit writer would only look to see whether the discharge would cause a violation of the TDS standard at the drinking water intake downstream.  The TDS from any individual discharge likely will be well-mixed with the river before it reaches a drinking water intake, and therefore won't contribute to any problems at the intake.  As a result, this new criterion should not result in many new permit limits for TDS.

ORSANCO sets water quality standards for the Ohio River.  The standards apply to the Ohio River, in addition to the standards adopted by any other state that borders the Ohio River.

DEP Issues Request for Water Quality Data

Every two years the DEP is required by the Clean Water Act  to report to EPA on the condition of state streams, list impaired waters, and generally compile all the information it can about state waters.  As part of that process it collects water quality data from a variety of sources, including citizens, industry, and government agencies.  Below is the DEP notice of the opportunity to submit data:

The West Virginia Department of Environmental Protection is compiling water quality data on the state’s streams and lakes and is requesting data from other entities for its next Integrated Water Quality Monitoring and Assessment Report.


The report is developed by the DEP and submitted to the U.S. Environmental Protection Agency every two years as required by the federal Clean Water Act and includes the Section 303(d) list of impaired waters. The next report is due in April 2012 and will be based upon water quality data resulting from monitoring through June 30, 2011.

In addition to data collected directly by the DEP, the agency will compile and assess water quality data collected by other persons, agencies, watershed associations, or permitted facilities. All parties wishing to submit data will need to complete the form “Guidelines for Submission of Water Quality Data” and attach it to the submission. The form can be reviewed and downloaded from the following

link: http://www.dep.wv.gov/WWE/watershed/IR/Pages/303d_305b.aspx.

In addition, any submission containing data collected and evaluated under a quality assurance/quality control program should also include a copy of the QA/QC plan. For an example of a QA/QC plan, go to http://www.epa.gov/quality/qs-docs/g5-final.pdf.

The deadline to submit data for the 2012 report is Oct. 17, 2011. The agency will not evaluate data collected outside the reporting period or submitted after the Oct. 17, 2011 deadline. Any data submitted after the deadline will be retained for assessment in the 2014 reporting cycle. Data previously submitted for the 2010 Integrated Report that is applicable for the 2012 reporting period will be considered and doesn’t need to be resubmitted.

All data should be sent to Kim Smith at Kim.L.Smith@wv.gov,

(304) 926-0499, Ext. 1085. Questions regarding data format or options for electronic submission may be directed to Kim Smith or Chris Daugherty at Chris.A.Daugherty@wv.gov.

Electronic data submission is highly preferred. Non- electronic submissions may be sent to the DEP at the Division of Water and Waste Management, Attn: Kim Smith,

601 57th St. S.E., Charleston, WV 25304.

EPA Proposes Not Regulating Carbon Sequestration Streams As Hazardous Waste

The US EPA has announced a proposal to not regulate carbon dioxide sequestration streams as hazardous wastes.   I've put the press release below.

I think this is the right approach, but it points out the absurdity of those who recommend prohibiting  natural gas fracking, or restricting it greatly, because of its supposed effects on underground sources of drinking water.  There's no evidence of fracking solutions migrating to drinking water sources, despite thousands of frac jobs over dozens of years, but there is almost no information about the potential impact of putting millions of tons of  CO2 underground.   Nevertheless, EPA blithely pushes ahead with it, perhaps because it's the only technology that appears even remotely feasible for CO2 control. 

At some point there will be more inquiry as to whether this is all even necessary.  Here's a report of another climate scientist who takes issue with the assumption that rising CO2 levels are contributing to global warming, and joining the swelling chorus of those who are pointing to the clear evidence that CO2 emissions increase because of warming.


EPA Takes Action on Reducing Barriers to the Use of Carbon Capture and Sequestration Technologies
Action supports national framework for the safe use of clean energy technology
WASHINGTON - Today, the U.S. Environmental Protection Agency (EPA) is proposing a rule to advance the use of carbon capture and sequestration (CCS) technologies, while protecting Americans’ health and the environment. CCS technologies allow carbon dioxide (CO₂) to be captured at stationary sources - like coal-fired power plants and large industrial operations - and injected underground for long-term storage in a process called geologic sequestration. The proposal is consistent with recommendations made by President Obama’s interagency task force on CO_2. sequestration and helps create a consistent national framework to ensure the safe and effective deployment of technologies that will help position the United States as a leader in the global clean energy race.
Today’s proposal will exclude from EPA’s hazardous waste regulations CO₂ streams that are injected for geologic sequestration in wells designated for this purpose under the Safe Drinking Water Act. EPA is proposing this exclusion as part of the agency’s effort to reduce barriers to the use of CCS technologies.  EPA requests that comments submitted on the rule share analytical data on the overall composition of captured CO₂ streams, including physical and chemical characteristics, to help the Agency determine if additional actions are necessary to ensure the safe use of CSS technologies.
Based on review of existing regulatory programs, EPA’s proposal concludes that the management of CO₂ streams under the proposed conditions does not present a substantial risk to people’s health or the environment, provides regulatory certainty to industries considering the use of CCS technologies, and encourages the deployment of CCS technologies in a safe and environmentally protective manner. 
The proposed rule is complementary to previous EPA rulemakings, including final rules under the Clean Air Act that require reporting by facilities that capture or inject CO₂ streams, and Safe Drinking Water Act regulations that ensure the wells used for geologic sequestration of CO₂ are appropriately sited, constructed, tested, monitored, and closed. EPA will accept public comments on the proposal for 60 days following publication in the Federal Register. 

More information on the proposed rule: http://www.epa.gov/epawaste/nonhaz/industrial/geo-sequester/index.htm
More information on the Geologic Sequestration of Carbon Dioxide: http://water.epa.gov/type/groundwater/uic/wells_sequestration.cfm

West Virginia DEP Issues 2008-2010 State of the Environment Report

The West Virginia Department of Environmental Protection has released the fourth edition of its State of the Environment Report. The report covers the years 2008-10 and highlights data and trends pertaining to West Virginia’s environment.

The report, which comes out every three years, continues the long-term process of identifying and tracking changes in the environment that result from human activities. It also provides a basis for determining the success of regulatory and non-regulatory efforts designed to improve environmental quality.

The report is divided into four sections -- air, water, land and energy -- and examines environmental aspects such as reported emissions of toxic air pollutants into the atmosphere; West Virginia’s aquatic integrity; hazardous and solid waste generation; and the management of abandoned wells.

To view an electronic version of the report go to:

www.dep.wv.gov/pio. Hard copies of the report can be picked up at DEP headquarters, located at 601, 57th St., S.E., Charleston, WV., 25304. Written requests for a hard copy should be mailed to the “DEP Public Information Office” at the same address, or emailed to Thomas.J.Aluise@wv.gov.

DEP to Issue NPDES Permits to Itself

Several years ago the Sierra Club, West Virginia Rivers Coalition and the West Virginia Highlands Conservancy brought suit against the DEP for failing to issue NPDES permits for the abandoned mining sites that had been forfeited to the State.  The northern and southern federal district courts ordered the DEP to issue NPDES permits to itself, just as it would require of private mining operation. The DEP and the environmentalists then negotiated consent orders, as explained in the DEP press release below.

The West Virginia Department of Environmental Protection has entered into a Consent Decree with three organizations regarding the permitting of special reclamation sites around the state.

The Consent Decree, which was filed today in the United States District Court for the Northern District of West Virginia and the United States District Court for the Southern District of West Virginia, is intended to satisfy orders from those courts requiring the DEP to issue water pollution control permits for twenty-one bond forfeiture sites as a result of cases previously filed by West Virginia Highlands Conservancy, Inc. and West Virginia Rivers Coalition, Inc.. The Consent Decree also resolves additional claims brought by those organizations and the Sierra Club regarding the permitting of all bond forfeiture sites in the state.

The parties reached an agreement in which the DEP will provide a report to the Special Reclamation Fund Advisory Council that describes what type of treatment will be needed at each bond forfeiture site and estimates the costs associated with such treatment.  The DEP will prioritize the sites and will issue National Pollutant Discharge Elimination System permits to 50 sites each year, resulting in all 171 bond forfeiture sites being permitted by December 2015.

Each NPDES permit that is issued will contain effluent limitations needed to protect state water quality standards.

In the Consent Decree, the plaintiffs agree they will not appeal or challenge the initial issuance of the NPDES permits for the sites, nor will they comment on the terms and condition of the permits to the DEP or the U.S.

Environmental Protection Agency.

“I’m pleased the agency was able to reach an agreement with these organizations regarding the timing of issuing permits for such a large number of sites,” said Randy C. Huffman, Cabinet Secretary for the DEP.

Local Entrepreneur Offers Advanced Solar Water Heater

The Charleston Gazette mail ran an article on Sunday about James Richards and his Sunbank solar water heaters.  Mr. Richards has improved on a Chinese design that he believes will allow for cost-efficient solar hot water:

Richards looked at other designs for heating water via the sun. A "split system" puts the solar collectors on the roof and the tank in the basement. Glycol is used as a heat-transfer fluid and a pump circulates it.
But such units can cost about $8,000, whereas a 40-gallon Sunbank costs $1,499, with an extra several hundred dollars for the cost of installation and materials -- and even less, for do-it-yourselfers. (The cost of a Sunbank will go up in 2012, Richards noted.)
The return on investment is much quicker with such a unit. It can pay for itself in several years, after which you're saving money with the sun pre-heating your water, he said.
As an experiment, the prototype unit on his South Hills roof handled all the house's hot water usage in June for three people, he said. "And we just got back our electricity bill which was like a treasure trove for me.
"I compared June of this year to June of last year and we used about 34 percent less electricity. That saved $35 in June off the electricity bill. So, if you extrapolate that to 12 months that's a pretty significant savings."

The return on investment calculations found on his website seems a little optimistic, particularly where gas, rather than electric, is the method of hot water heating.  My gas usage for 3-4 people in July, which is solely for hot water, was less than 2 mcf, and gas is going for about $10 per mcf, so I couldn't save the $30+ per month Richards refers to above. And just comparing electric usage from one June to the next provides insufficient data to demonstrate how one appliance performed. Nevertheless, it's nice to see an entrepreneur working to develop solar hot water heating in the Mountain State.

Later note - Mr. Richards contacted me, and noted that, in calculating the return on investment, one could factor in the tax credit of $500 available for installing a solar system.  He said he hadn't mentioned it to the reporter because he's trying to get people to adopt the system on its own merits, not because there's a tax advantage.  Some renewable projects only work when there are tax credits or subsidies from the government, so Mr. Richards deserves plaudits for making solar hot water heating work on its own.

Tax on Carbon Harms the Poor

The Legal Planet blog has an article by Dan Farber that cites a study that reaches the unsurprising conclusion that the burden of a tax on carbon will fall disproportionately on the poor.  The author concludes that further government action will be needed to ameliorate the effects of the carbon tax (e.g., redistribute the taxes to low wage earners).

One alternative, which the author rejects out of hand,  might be to not tax carbon in the first place. Many have concluded that a carbon tax is more of a problem than an answer, as the Breakthrough Institute has pointed out here and here.