Coal Isn't Going Away

It's unlikely that coal is going away anytime in the near future.  There may be a push for more coal gasification, as in  this Indiana plant, and more of it may go overseas, but the  demand for power is going to keep up the pressure to develop and produce all types of fuels.  The need for reliable power is especially acute in the developing world. The following is from Scientific American:

A quarter of the world is disconnected from debates over clean energy "because their reality is much more basic than that," said UNDP's director of development planning,Olav Kjørven. "They carry heavy loads of water on their backs because they don't have transport. They cook over wood fires that damage their health, not with electricity, gas or oil."

Telling these people to wait, or to use unreliable renewables like wind, is  cruel. 

DEP Announces Proposed Rules and Public Hearing Date

            The West Virginia Department of Environmental Protection has scheduled public hearings for its 2013 proposed legislative rules. All hearings will take place at the DEP’s Charleston headquarters, located at 601 57th St., S.E., Charleston, WV, 25304. Oral and written comments will be limited to the proposed revisions and will be made a part of the rulemaking record. Copies of the rules are available from the Secretary of State’s office or by visiting the DEP’s Web site at: http://www.dep.wv.gov/pio/Pages/Rules.aspx. You may also obtain hard copies of the information by calling the phone numbers listed below. Written comments may be submitted to the Public Information Office at the above address. Comments may also be emailed to: DEP.Comments@wv.gov.

The hearing dates and locations are as follows:

Division of Air Quality
45CSR14 -- Permits for Construction and Major Modifications of Major Stationary Sources of Air Pollution for the Prevention of Significant Deterioration.
45CSR16 -- Standards of Performance for New Stationary Sources.
45CSR18 -- Control of Air Pollution from Combustion of Solid Waste.
45CSR25 -- Control of Air Pollution from Hazardous Waste Treatment, Storage and Disposal Facilities.
45CSR30 -- Requirements for Operating Permits.
45CSR34 -- Emission Standards for Hazardous Air Pollutants.

The public hearing for all Air Quality rules is scheduled to begin at 6 p.m., on July 30, 2012 in the Dolly Sods Conference Room. The comment period will end at the conclusion of the public hearing on July 30. Upon authorization and promulgation of revisions to 45CSR14, the DAQ will submit the rule to the U.S.
Environmental Protection Agency as a revision to the State Implementation Plan pursuant to the federal Clean Air Act. Upon authorization and promulgation of revisions to 45CSR18, the DAQ will submit the final rule to the EPA for approval as part of West Virginia’s Section 111(d)/129 Plan and program delegation of the federal New Source Performance Standards. Rules 45CSR16, 45CSR25, and 45CSR34 will be submitted to the EPA to fulfill other federal obligations under the Clean Air Act, including delegations, plans and program approvals. Upon authorization and promulgation of 45CSR30, the rule will be submitted to the EPA as a revision to the State’s Operating Permit Program under Title V of the federal Clean Air Act.

For more information on DAQ rules, call 304-926-0475.

Division of Water and Waste Management
33CSR12 -- Covered Electronic Device Recycling Rule.
33CSR27 -- Hazardous Waste Administrative Proceedings and Civil Penalty Assessment.
47CSR26 -- Water Pollution Control Permit Fee Schedules.

The public hearing for all DWWM rules is scheduled to begin at 6 p.m., on Aug.
7, 2012 in the Coopers Rock Conference Room. The comment period will end at the conclusion of the public hearing on Aug. 7.

For more information on DWWM rules, call 304-926-0495.

Division of Mining and Reclamation
47CSR30 -- WV/NPDES Rule for Coal Mining Facilities.

The public hearing for this rule is scheduled to begin at 6 p.m., on Aug. 7,
2012 in the Coopers Rock Conference Room. The comment period will end at the conclusion of the public hearing on Aug. 7.

For more information about this rule, call 304-926-0490.

Office of Oil and Gas
35CSR8 -- Rule Governing the Development of Horizontal Wells.
The public hearing for this rule is scheduled to begin at 6 p.m., on July 31,
2012 in the Coopers Rock Conference Room. The comment period will end at the conclusion of the public hearing on July 31.

For more information about this rule, call 304-926-0450.

DC Circuit Rejects Challenges to GHG Rules

The US Court of Appeals for the District of Columbia has rejected appeals of the Endangerment Finding, the Tailpipe Rule  the Tailoring Rule,  effectively approving EPA's regulation of greenhouse gases.  The decision is here.  It was a clear win for EPA and for the environmental groups that supported the agency.  The Court ruled:

for the reasons set forth below, we conclude: 1) the Endangerment Finding and Tailpipe Rule are neither arbitrary nor capricious; 2) EPA’s interpretation of the governing CAA provisions is unambiguously correct; and 3) no petitioner has standing to challenge the Timing and Tailoring Rules. We thus dismiss for lack of jurisdiction all petitions for review of the Timing and Tailoring Rules, and deny the remainder of the petitions.

It was disappointing that the Court found the endangerment rule was not arbitrary and capricious, given  EPA's reliance on flawed studies and refusal to submit its finding to its own Science Advisory Board. Less surprising was the Court's decision to skip the question of whether the Tailoring Rule was a proper exercise of EPA discretion  by finding the states and businesses challenging the rule had no standing to do so. In adopting the Tailoring  Rule EPA was clearly misapplying the Clean Air Act, but since it was doing so in a way that benefited  the state and business petitioners, the petitioners had no grounds to complain.  The Court therefore never reached the merits of whether EPA could raise the permitting threshold for GHGs beyond the level established in the Clean Air Act.

An appeal to the  Supreme Court is likely, and a win by Romney in November is likely to result in a reconsideration of the Endangerment Finding.  But Romney's election  is far from a sure thing, so this decision could stick.

Here's a more complete review of the decision by Ann Carlson

Rockefeller Has Courage of the Wrong Convictions

I'll give Senator Rockefeller credit for speaking his mind and offering an unpopular opinion on the future of the coal industry.  One suspects he is burnishing his reputation as a statesman by taking a position that is unpopular with his constituents, but popular within the Beltway, but who knows his motivation?

Lots has been written about his statement.  (Here is Ken Ward's take on what Rockefeller said.)  I would like to focus on one aspect of his speech:

 Third, the shift to a lower carbon economy is not going away and it’s a disservice to coal miners and their families to pretend that it is. Coal company operators deny that we need to do anything to address climate change despite the established scientific consensus and mounting national desire for a cleaner, healthier environment.

The primary  reason that there is a shift to a "lower carbon economy" is because certain political elites and politicians such as Sen. Rockefeller want to  believe that there is an "established scientific consensus" that climate change is primarily man-made and will result in catastrophic damage to the environment.  The science is far from settled in that regard, and the flat temperatures we've seen for the last 15 years or so are a clear contradiction of the  catastrophe meme that the  AGW crowd  has been pushing.

If Senator Rockefeller were saving the planet by taking his principled stand, he would be deserving of praise. The fact that he is condemning US citizens to higher prices for electricity, and discouraging development for the billion or so people living in energy poverty worldwide, make his crisis of conscience less compelling.  He is a man with the courage of the wrong convictions.

Poultry Grower Challenges EPA Compliance Order

A declaratory judgment action has been filed in federal court  by Lois Alt,  in which Ms. Alt seeks a declaration that the runoff from her farm is agricultural storm water and is not subject to permitting under the Clean Water Act.   Here is an article from the Washington Post, and one from the Charleston Daily Mail.

I have had to dress in a lot of protective gear when visiting industrial sites, but I don't think I've had to cover up more than when I visited Ms. Alt's poultry-growing operation.  Full body suit, hairnet and booties.  It  wasn't to protect me from the chickens, it was to protect the chickens from me. And the gear was required even if I didn't  go inside the houses.

West Virginia Supreme Court Rejects Petition Seeking Action on Straight Pipe Sewage Discharges

In April Three Rivers Companies filed a petition for mandamus with the West Virginia Supreme Court of Appeals, asking it to order Randy Huffman, as Secretary  of the West Virginia Department of Environmental Protection, and Marian Swinker, as Commissioner of the Bureau of Public Health to eliminate straight piping in West Virginia.  On June 7, 2012 the Supreme Court rejected that petition without further comment or explanation.

A bit of background - the DEP develops a list of impaired waters called the 303(d) list.  (It is presently taking comment on the proposed list for 2012; draft is here.) Historically, the greatest source of impairment identified in that list, measured by total  stream miles affected, has been fecal coliform.  The DEP has concluded that the vast majority of that fecal coliform is from human sewage discharged by "straight pipes,"  which are nonfunctioning septic systems, or pipes that discharge straight from someone's house into a stream, without any treatment. It has not required permits for those point sources, to my knowledge

In its response brief the WV DEP  (ably represented by Jennifer Hughes) agreed that the issue of  unpermitted discharges of household sewage into waters of the state is an issue of fundamental public importance. . .” The DEP did not disagree that there are thousands of miles of streams that are impaired by fecal coliform, even though it is not even assessing compliance with the fecal coliform criteria in many streams. The DEP admitted that it  “rarely if ever” has taken enforcement action against unpermitted discharges of untreated sewage to waters of state from an individual residence. Nevertheless, the DEP took the position that the Three Rivers petition, asking the Court to require the Director to address this situation, was “frivolous.”

There are a number of reasons that the DEP  gave for opposing the petition, such as enforcement discretion, the alleged inability to issue permits for sources that don't meet water quality standards, and its right to treat point sources as nonpoint sources for purposes of the TMDL program.   I won't presume to guess which of those arguments the Supreme Court found convincing, but I would like to comment on one reason the DEP gave for not enforcing the law against straight pipes - the alleged poverty of West Virginia citizens.

 Had a reply to the DEP's brief been allowed, here is what it would have been:

The heart of the Director’s position is found in his statement that “the problem of failing household sewage exists largely in rural, low income areas. Issuing an order to a person to stop discharging untreated sewage and install proper sewage treatment is pointless if the person cannot afford to comply.” (Director’s Brief at 6-7). In essence, the Director has concluded that West Virginians who have straight pipes are too poor to pay for sanitation, and therefore enforcement is pointless. This argument fails for at least two reasons. First, it is an unproven assumption. The Director offers no support for its surmise that only poor household discharge through straight pipes. It is much more likely that households straight-pipe because they don’t know that their faulty septic systems are discharging into a stream, or because no one has given the homeowners the slightest incentive to investigate what could be happening to their sewage.

Second, it introduces a new concept into the state’s environmental protection programs – noncompliance  is allowed when someone is sufficiently  poor.  Three Rivers Companies would contend, and hopes the Director would agree, that one of the obligations of a homeowner is to properly dispose of the home’s sewage. There is no poverty exception that allows the owner of a residence to escape the cost of treatment, effectively forcing downstream property owners to bear the burden of that choice. By the way of analogy, all car owners must have liability coverage in order operate their vehicles. There is no exception for “rural, low income persons” to drive without insurance.

The latter half of the Director’s brief describes federal and state programs for funding a small number of community wastewater systems. This is irrelevant, and only reinforces the stereotype that West Virginia citizens require state and federal money and programs in order to take care of their sewage. There is certainly a role for state and federal funds, and there are many people who will likely need help in order to install proper sewage treatment. But there is also a role for a motivated citizenry to solve their own problems. West Virginians are fully capable of doing so, if they have an incentive to act: Patronizing characterizations that excuse noncompliance in the absence of government programs only encourage dependency, not solutions. 

As for the DEP's position that it was properly addressing  addressing straight pipes as nonpint sources under the TMDL program:

The DEP defends its characterization of straight pipes as nonpoint sources on programmatic, not legal, grounds. There is no argument that the straight pipes aren’t point sources, as that term is defined in federal and state acts. The DEP instead argues they can be treated as nonpoint sources for purposes of the TMDL Program or EPA's nonpoint source program, although it cites no support for that proposition. The fact is there is no support for the DEP's position. Straight pipes from each of 25 residences are a point source in the same way that a discharge pipe from a community package sewer treatment plant, conveying the same wastes from those 25 households, is a point source. The advantage to the DEP in treating the straight pipes as a point source is that less scrutiny is given to eliminating nonpoint sources, which are assigned “load allocations” when TMDLs are planned. Load allocations are essentially ignored and become the subject of generalized plans without any specific implementation schedule. Point sources, on the other hand, are generally assigned specific reductions that are imposed in permits and enforced. Based on the DEP's  response, the only time that actions are taken with regard to straight pipe discharges is when some other program, generally bringing federal money, is available to address them.

As you may have guessed, I represented Three Rivers. I'm looking forward to Round 2, when I figure out what that is.

Managing Storm Water in America's Cities

Here's a  press release from EPA on managing storm water in towns and cities. It's been a slow process, but cities are gradually moving toward avoiding wet weather discharges of untreated sewage and runoff. This guidance is intended to help with that process. 

EPA Announces Framework to Help Local Governments Manage Stormwater Runoff and Wastewater EPA has issued a new framework to help local governments meet their Clean Water Act obligations. The Integrated Municipal Stormwater and Wastewater Planning Approach Framework assists EPA regional offices, states, and local governments to develop voluntary storm and wastewater management plans and implement effective integrated approaches that will protect public health by reducing overflows from wastewater systems and pollution from stormwater. In developing the framework, the EPA worked in close coordination with a variety of stakeholders, including publicly owned treatment works, state water permitting authorities, local governments, and nonprofit environmental groups. EPA's framework outlines new flexibility to pursue innovative, cost-saving solutions, like green infrastructure, and will help communities as they develop plans that prioritize their investments in storm and wastewater infrastructure. For more information: http://cfpub.epa.gov/npdes/integratedplans.cfm

California Scheming

For Jerry Brown, environmental protection is a great idea, unless it is interfering with "green" jobs creation.  Apparently, Gov.  Brown is concerned that his dream of a high speed train system could be derailed by endless environmental  litigation.  Some question whether the project even makes sense (projections are that it would cost less to get an unsubsidized airplane ticket), but there is a pot of federal money waiting to be tapped, and California needs the construction jobs. So Gov. Brown is proposing to short circuit the reviews that would be required by the California Environmental Quality Act in order to get the project going. Rank hypocrisy.