West Virginia Make It Shine Applications Available

Applications are now available for the 2012 West Virginia Make It Shine Statewide Cleanup.  This annual event is jointly sponsored by the Department of Environmental Protection and the Division of Highways.

During the first two weeks of April, the DEP’s Make It Shine program will provide resources such as cleanup materials, waste hauling and landfill fees to community groups volunteering to conduct litter cleanups on state streams or public lands.

More than 3,800 West Virginia citizens participated in last year’s statewide cleanup. These volunteers removed close to 150 tons of litter and 4,200 tires from our state’s landscape.

The application deadline for those wishing to participate in the 2012 Make It Shine Cleanup is March 1. Applications are available through contacting Travis Cooper of the Make It Shine Program at 1-800-322-5530, or by email at:

Travis.L.Cooper@wv.gov. Applications may also be downloaded via the net at: www.dep.wv.gov. Click on “REAP” under the Land section on the homepage.

Patriot Coal Agrees To Selenium Treatment

Ken Ward reports on a major agreement between Patriot Coal Company and environmental groups to resolve a lawsuit over selenium pollution. He reports that

The Patriot deal covers 43 pollution outlets associated with 10 water discharge permits at three of Patriot's mining complexes, Hobet 21 along the Boone-Lincoln county line, Samples in Kanawha County, and Ruffner in Logan County.

Under the settlement, Patriot must construct and operate new selenium treatment systems that will end ongoing water quality violations. Discharges must be brought into compliance with pollution limits in phases over the next two to five years, based on the water and pollution flow. Smaller outlets must be cleaned up first, with a limited number of larger discharges having the latest deadlines.

As the article mentions, the cost of reducing selenium, which is often reverse osmosis or similar treatment, can be high.  Estimates range into the hundreds of millions of dollars for all the mines Patriot operates.

Paying for Reclamation

Sometimes coal companies don't complete mine site reclamation as they should. Some bad operators just walk away; some good operators go bankrupt.  Operators are supposed to have bonds on their property to cover the cost of completing  work, but the bonds may not be enough to complete work on the abandoned sites.  When that happens, the Land Restoration Special Reclamation Funds and the Acid Mine Drainage Abatement Fund are to provide the money for finishing the site remediation.  However, it appears there may not be enough money in the funds, which are created with the proceeds of a tax on coal, to do all the reclamation that's required.   That  tax is likely to increase, as the WV Coal Association's leader, Bill Raney, has gone on record as favoring an increase in the  tax.  That would go a long way toward making the funds more solvent. However, according to Aaron Allred of the Legislative Auditor's Office, there may also be a problem with the bonding  program.  If the bonds aren't sufficient, or there are defaults on bonds, the state funds will not have enough money to cover all the reclamation.

Ry Rivard of the Daily Mail covers the story here.

EPA Offers National Greenhouse Gas Data For Large Facilities

Here's a press release from EPA announcing the availability of national data on greenhouse gas (GHG) emissions.  The data are expressed in terms of CO2 equivalent, as gases such as methane are believed by some to have a more potent GHG effect.  You can go to EPA's map through the first hyperlink below, click on West Virginia, and find the largest GHG emitters in the state

  WASHINGTON – For the first time, comprehensive greenhouse gas (GHG) data reported directly from large facilities and suppliers across the country are now easily accessible to the public through EPA’s GHG Reporting Program. The 2010 GHG data released today includes public information from facilities in nine industry groups that directly emit large quantities of GHGs, as well as suppliers of certain fossil fuels.
“Thanks to strong collaboration and feedback from industry, states and other organizations, today we have a transparent, powerful data resource available to the public,” said Gina McCarthy, assistant administrator for EPA’s Office of Air and Radiation. “The GHG Reporting Program data provides a critical tool for businesses and other innovators to find cost- and fuel-saving efficiencies that reduce greenhouse gas emissions, and foster technologies to protect public health and the environment.”
EPA’s online data publication tool allows users to view and sort GHG data for calendar year 2010 from over 6,700 facilities in a variety of ways—including by facility, location, industrial sector, and the type of GHG emitted. This information can be used by communities to identify nearby sources of GHGs, help businesses compare and track emissions, and provide information to state and local governments.
GHG data for direct emitters show that in 2010:

•Power plants were the largest stationary sources of direct emissions with 2,324 million metric tons of carbon dioxide equivalent (mmtCO2e), followed by petroleum refineries with emissions of 183 mmtCO2e.

•CO₂ accounted for the largest share of direct GHG emissions with 95 percent, followed by methane with 4 percent, and nitrous oxide and fluorinated gases accounting for the remaining 1 percent.

•100 facilities each reported emissions over 7 mmtCO2e, including 96 power plants, two iron and steel mills and two refineries.

Mandated by the FY2008 Consolidated Appropriations Act, EPA launched the GHG Reporting Program in October 2009, requiring the reporting of GHG data from large emission sources across a range of industry sectors, as well as suppliers of products that would emit GHGs if released or combusted. Most reporting entities submitted data for calendar year 2010. However, an additional 12 source categories will begin reporting their 2011 GHG data this year.


Access EPA’s GHG Reporting Program Data and Data Publication Tool: http://epa.gov/climatechange/emissions/ghgdata/

Information on the GHG Reporting Program: http://epa.gov/climatechange/emissions/ghgrulemaking.html

Information on the U.S. Inventory of Greenhouse Gas Emissions Sources and Sinks: http://epa.gov/climatechange/emissions/usinventoryreport.html
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Fourth Circuit Upholds State Mining Program Definition of "Material Damage"

The following is an excellent exegesis by Jason Bostic of the West Virginia Coal Association of a recent decision by the Fourth Circuit approving the West Virginia definition of "material damage to the hydrologic balance." Environmental groups had challenged the West Virginia definition because they felt it made the West Virginia program less stringent than the federal program. A US District Court disagreed, and the 4th Circuit affirmed the District Court.  Jason explains what happened.

The Fourth Circuit decision he is referring to can be found here.  The Office of Surface Mining approval from 2008 is here.

The U.S. Court of Appeals for the Fourth Circuit has issued a favorable decision affirming certain revision to West Virginia’s surface mining regulatory program.  The changes concern W.Va.’s rules governing cumulative hydrologic impact assessments and thresholds for determining when “material damage to the hydrologic balance” has occurred.  The decision  provides the West Virginia Department of Environmental Protection (WV DEP) with a much better regulatory tool for determining when a mining related discharge/activity has caused “material damage to hydrologic balance” and (hopefully) resolves a 10-year regulatory and legal controversy related to those changes.  The Coal Association supported the proposed revisions at the Legislature and in three separate federal public comment periods established by the federal Office of Surface Mining (OSM).   The Association was also an intervenor-defendant in several rounds of federal litigation involving OSM’s consideration and approval of the proposed amendment, including this latest appeal to the Fourth Circuit.   

Under the previous language of the W.Va. program, any isolated or minor violation of Clean Water Act (CWA) NPDES effluent standards could be considered “material damage”.  The revisions at issue link “material damage” to “any long term or permanent change in the hydrologic balance…which has a significant adverse impact on the capability of the affected water resources to support existing conditions and uses.”  The new definition makes it clear that single, isolated and/or minor exceedences of effluent limits which do not affect the capability of the affected stream or water body to meet its state CWA designated use (aquatic life, trout stream, public drinking water supply, etc) DO NOT constitute “material damage” under W.Va.’s approved mining regulatory program and the state surface mining law.

History of the Amendments and Litigation

W.Va. first proposed revising its cumulative impact and material damage regulations in 2000.  The West Virginia Legislature approved the revisions in 2001 and they were submitted to OSM for approval.  OSM approved the revisions in December 2003.  OVEC and other anti-mining groups sued OSM in the U.S. District Court for the Southern District of West Virginia over the federal agency’s approval of the W.Va. revisions.  In September 2005 Judge Chambers vacated OSM’s approval of the two revisions on largely rulemaking procedural issues such as the federal agency’s lack of an explanation as to how the changes would affect the stringency of the state program versus a straight analysis of whether the revisions complied with the minimum requirements established by the federal Surface Mining Control & Reclamation Act (SMCRA).  OSM appealed that decision to the Fourth Circuit and in 2006 the

Appeals Court

affirmed Judge Chamber’s ruling of 2005.   

Following the Fourth Circuit’s decision, in March 2007 WV DEP resubmitted the two amendments to OSM with further documentation and analysis to better justify the changes.  Following of a year of dialogue and further exchange of information and documents between WV DEP and the Charleston Field Office of OSM, the revisions were referred to OSM’s Appalachian Region for a final decision.  Despite the rulings of Judge Chambers and the

Appeals Court

, WV DEP, based on resubmission of the amendments, never deleted the language at issue from its mining regulatory program so no further rulemaking from the state is necessary to implement the now approved changes. 

On December 24, 2008, OSM again approved the revisions to the W.Va. program concerning material damage (December 24, 2008 Federal Register Notice is attached).  In February 2009 OVEC yet again challenged the federal approval of the amendments, this time alleging the new definition of material damage altered the regulation and permitting of coal mining operations in contravention of the CWA and in violation of SMCRA’s mandate that “nothing in this act shall be construed as superseding, amending, modifying or repealing the CWA...”  The U.S. District Court for the Southern District of West Virginia (Judge Chambers) issued a decision on January 3, 2011 affirming OSM approval of the proposed amendments.  OVEC again appealed Judge Chambers’ decision to the Fourth Circuit and the decision issued today should resolve the litigation surrounding the revisions to the W.Va. mining regulatory program concerning material damage. 

Detail and Description of the Program Amendments

1.  Deletion of the definition of “Cumulative Impact” at 38 CSR 2.2.39: 

Cumulative impact means the hydrologic impact that results from the accumulation of flows from all coal mining sites to common channels or aquifers in a cumulative impact area.  Individual mines within a given cumulative impact area may be in full compliance with effluent standards and all other regulatory requirements, but as a result of co-mingling of their off-site flows, there is a cumulative impact.  The Act does not prohibit cumulative impacts but does emphasize that they be minimized.  When the magnitude of cumulative impacts exceeds threshold limits or ranges as predetermined by the Department, they constitute material damage. 

The state’s motivation to delete the above definition came in large part from the sentence referencing “threshold limits or ranges”.  These terms were not defined in the mining regulations and where open to wide interpretations ranging from violations of individual effluent limitations to arbitrary interpretations from individual permit reviewers.  Further, the deleted definition recited above references exceedences that occur as a result of the cumulative discharge of multiple operations and outlets and could be viewed as ignoring the individual discharges of a given operation or group of outlets. 

2.  Adding the definition of “Material Damage” to the existing regulation at 38 CSR 2.3.22.e: 

            Existing Language of 38 CSR 2.3.22.e:

           

The Director shall perform a separate CHIA [cumulative hydrologic impact assessment] for the cumulative impact area of each permit application.  This evaluation shall be sufficient to determine whether the proposed operation has been designed to prevent material damage to the hydrologic balance outside the permit area. 

Newly approved definition of Material Damage added to 38 CSR 2.3.22.e:

Material damage to the hydrologic balance outside the permit area means any long term or permanent change in the hydrologic balance caused by surface mining operation(s) which has a significant adverse impact on the capability of the affected water resource(s) to support existing conditions and uses. 

Silk Purses From Sows' Ears

 A Finnish scientist believes he has a solution to global warming emissions from coal and cement plants  by creating a process for making salable materials from CO2.  I don't share the author's concern about carbon dioxide levels, but it's always interesting to see waste products, of combustion or other industrial activities, being profitably used.

Recycling Christmas Trees in Charleston

For those of you who decorate real Christmas trees, and are dragging them to the curb right about now, this is a great way to turn them into productive fishing spots: 

The West Virginia Department of Environmental Protection’s REAP Program is encouraging residents to bring their live Christmas trees to the Capitol Market Saturday, Jan. 7, from 10 a.m. to 2 p.m.

To be accepted, all decorations must be removed including lights, ornaments, tinsel, wire and stands. The trees will be given to the West Virginia Division of Natural Resources for its fish habitat program.

Residents who bring their trees to the market will receive a gift from the REAP program and can sign up for drawings for additional prizes.

Last year, more than 800 trees were collected.