West Virginia Adopt-A-HIghway

The state Department of Environmental Protection is accepting registrations for the Saturday, Sept. 29 Adopt-A- Highway Fall Statewide Cleanup. Volunteers have until Friday, Sept. 14 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.

More than 3,400 volunteers turned out for the fall 2011 Adopt-A-Highway cleanup and cleared over 1,500 miles of West Virginia roadways. Since the program’s inception in 1988, state citizens have cleaned up close to 70,000 miles of state highways and roads during annual spring and fall Adopt-A-Highway events.

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.

EPA, DOT Congratulate Themselves On Fuel Standards

While not generally a fan of government mandates, I like the fuel economy standards that are required for cars and trucks.  The same might have been accomplished by market forces even without the standards, but  they appear to have been a significant force in improving mileage.

Having said that, it is amusing to see any US administration, Democrat or Republican, bragging  about setting tough standards for  the future, long after they will be gone from politics and no longer responsible for actually achieving those standards. They  require no discipline or effort now, but are trumpeted as if they are achievements of current officeholders.  It's similar to politicians who have grand schemes for balancing the budget that rely on tax increases and/or program cuts that don't go into effect for years to come.

Anyway, here's the EPA announcement of the new fuel standards:

WASHINGTON, DC – The Obama Administration today finalized groundbreaking standards that will increase fuel economy to the equivalent of 54.5 mpg for cars and light-duty trucks by Model Year 2025. When combined with previous standards set by this Administration, this move will nearly double the fuel efficiency of those vehicles compared to new vehicles currently on our roads. In total, the Administration’s national program to improve fuel economy and reduce greenhouse gas emissions will save consumers more than $1.7 trillion at the gas pump and reduce U.S. oil consumption by 12 billion barrels.

“These fuel standards represent the single most important step we’ve ever taken to reduce our dependence on foreign oil,” said President Obama. “This historic agreement builds on the progress we’ve already made to save families money at the pump and cut our oil consumption. By the middle of the next decade our cars will get nearly 55 miles per gallon, almost double what they get today. It’ll strengthen our nation’s energy security, it’s good for middle class families and it will help create an economy built to last.”

The historic standards issued today by the U.S. Department of Transportation (DOT) and the U.S. Environmental Protection Agency (EPA) build on the success of the Administration’s standards for cars and light trucks for Model Years 2011-2016. Those standards, which raised average fuel efficiency by 2016 to the equivalent of 35.5 mpg, are already saving families money at the pump.

Achieving the new fuel efficiency standards will encourage innovation and investment in advanced technologies that increase our economic competitiveness and support high-quality domestic jobs in the auto industry. The final standards were developed by DOT’s National Highway Traffic Safety Administration (NHTSA) and EPA following extensive engagement with automakers, the United Auto Workers, consumer groups, environmental and energy experts, states, and the public. Last year, 13 major automakers, which together account for more than 90 percent of all vehicles sold in the United States, announced their support for the new standards. By aligning Federal and state requirements and providing manufacturers with long-term regulatory certainty and compliance flexibility, the standards encourage investments in clean, innovative technologies that will benefit families, promote U.S. leadership in the automotive sector, and curb pollution.

“Simply put, this groundbreaking program will result in vehicles that use less gas, travel farther, and provide more efficiency for consumers than ever before—all while protecting the air we breathe and giving automakers the regulatory certainty to build the cars of the future here in America,” said Transportation Secretary Ray LaHood. “Today, automakers are seeing their more fuel-efficient vehicles climb in sales, while families already saving money under the Administration’s first fuel economy efforts will save even more in the future, making this announcement a victory for everyone.”

“The fuel efficiency standards the administration finalized today are another example of how we protect the environment and strengthen the economy at the same time,” said EPA Administrator Lisa P. Jackson. “Innovation and economic growth are already reinvigorating the auto industry and the thousands of businesses that supply automakers as they create and produce the efficient vehicles of tomorrow. Clean, efficient vehicles are also cutting pollution and saving drivers money at the pump.”

The Administration’s combined efforts represent the first meaningful update to fuel efficiency standards in decades. Together, they will save American families more than $1.7 trillion dollars in fuel costs, resulting in an average fuel savings of more than $8,000 by 2025 over the lifetime of the vehicle. For families purchasing a model Year 2025 vehicle, the net savings will be comparable to lowering the price of gasoline by approximately $1 per gallon. Additionally, these programs will dramatically reduce our reliance on foreign oil, saving a total of 12 billion barrels of oil and reducing oil consumption by more than 2 million barrels a day by 2025 – as much as half of the oil we import from OPEC each day.

The standards also represent historic progress to reduce carbon pollution and address climate change. Combined, the Administration’s standards will cut greenhouse gas emissions from cars and light trucks in half by 2025, reducing emissions by 6 billion metric tons over the life of the program – more than the total amount of carbon dioxide emitted by the United States in 2010.

President Obama announced the proposed standard in July 2011, joined by Ford, GM, Chrysler, BMW, Honda, Hyundai, Jaguar/Land Rover, Kia, Mazda, Mitsubishi, Nissan, Toyota, and Volvo, as well as the United Auto Workers. The State of California and other key stakeholders also supported the announcement and were integral in developing this national program.

In achieving these new standards, EPA and NHTSA expect automakers’ to use a range of efficient and advanced technologies to transform the vehicle fleet. The standards issued today provide for a mid-term evaluation to allow the agencies to review their effectiveness and make any needed adjustments.

Major auto manufacturers are already developing advanced technologies that can significantly reduce fuel use and greenhouse gas emissions beyond the existing model year 2012-2016 standards. In addition, a wide range of technologies are currently available for automakers to meet the new standards, including advanced gasoline engines and transmissions, vehicle weight reduction, lower tire rolling resistance, improvements in aerodynamics, diesel engines, more efficient accessories, and improvements in air conditioning systems. The program also includes targeted incentives to encourage early adoption and introduction into the marketplace of advanced technologies to dramatically improve vehicle performance, including:

• Incentives for electric vehicles, plug-in hybrid electric vehicles, and fuel cells vehicles; 
• Incentives for hybrid technologies for large pickups and for other technologies that achieve high fuel economy levels on large pickups; 
• Incentives for natural gas vehicles; 
• Credits for technologies with potential to achieve real-world greenhouse gas reductions and fuel economy improvements that are not captured by the standards test procedures.

Germany To Build 23 Coal-fired Power Plants

Dr. Kelvin Kemm ruminates on Germany's plans to build 23 new coal burning power plants.  Turns out that wind power provided much less (almost half) of the  power it was expected to provide, and much  more fossil fuel power  is needed to keep the economy running.   Germany, which prohibits fracking and is de-commissioning its nuclear plants, has turned to coal to power itself. Germany recently  opened a huge (2200 megawatt) coal-fired plant near Cologne, to a deafening silence.  This in a country that prides itself on being green.  

EPA Explains Post-Sackett Approach To Enforcement

The US Supreme Court ruled unanimously in Sackett v EPA,  132 S. Ct. 1367, that compliance orders issued under Section 309(a) of the Clean Water Act are final orders that are subject to judicial challenge under the Administrative Procedure Act.  Senator Inhofe  inquired about statements made by an EPA employee to the effect that nothing had changed after the Supreme Court's decision, and Giles responded to him, saying that was not the case, and the employee was quoted out of context. Giles  attached a memo from Pamela J. Mazakas, Director of the Office of Civil Enforcement, that explained how EPA would proceed post-Sackett.  EPA staff  is encouraged to "continue the practice of inviting parties to meet ande discuss how CWA violatons . . .can be resolved as quickly as possible." Consensual administrative compliance orders" are also suggested options.

West Virginia DEP Proposes First CAFO NPDES Permit

West Virginia's Department of Environmental Protection has proposed issuing its first (to my knowledge, anyway) National Pollutant Discharge Elimination System (NPDES) permit for a concentrated animal feeding operation, or CAFO.  The draft permit can be found here.

CAFOs are places where large numbers of animals are kept, and may generate significant amounts of waste. Production wastewater, or water running off from the places the animals are kept, is subject to NPDES permitting if it runs to a water of the United States. However, agricultural storm water is exempt from NPDES permitting  under the Clean Water Act, and the state agencies that issue NPDES permits are still trying to differentiate between production wastewater, which can be permitted, and agricultural storm water, which cannot. For example, regulating animal wastes that are used as fertilizer can become  a tricky issue. In this permit, manure from the CAFO  production area can be spread on fields if it is done in accordance with a Nutrient Management Plan (NMP), even if some will eventually run to jurisdictional waters, but that same waste cannot run off the production area and into a jurisdictional water  in any amount.

Anyone interested in commenting on the  permit has until September 12 to do so.

DEP Offers eDMR Guidance

The West Virginia Department of Environmental Protection Division of Water and Waste Management issues NPDES permits in the state.  Monthly reports, known as Discharge Monitoring Reports, or DMRs, are the means by which permittees report to the DEP on the results of their wastewater testing.  That reporting is now supposed to be done electronically,and as with many new things, a few glitches have arisen.  The DEP has prepared a guidance that may answer questions for some permittees who are using the eDMR system.  You can find that guidance here.

Center for Biological Diversity May Challenge Nationwide Permits

The Center for Biological Diversity notified the US Army Corps of Engineers by letter dated August 16 that it intends to file a lawsuit challenging  the Corps' nationwide permit (NWP) program, which is authorized  by Section 404 of the Clean Water Act.  The CBD is threatening to file suit because  the Corps allegedly failed to consider the effects of the NWP program on endangered species, and therefore violates the Endangered Species Act.  Its position is summarized in the letter this way:

As explained above, ACOE is in violation of the ESA as a result of its failure to insure that the
NWP program will not jeopardize the continued existence of any listed species, or result in the
destruction or adverse modification of critical habitat. ACOE’s NWP program constitutes
violations of Section 7(a)(2) and Section 7(d) of the ESA. 

If ACOE does not act to correct the violations described in this letter, the Center will pursue
litigation against ACOE in U.S. District Court in 60 days from your receipt of this notice. The
Center will seek injunctive and declaratory relief, and legal fees and costs regarding these
violations. An appropriate remedy that would prevent litigation would be for ACOE to
immediately cease its NWP program until it can insure that the discharges permitted under the
program will not jeopardize the continued existence of any endangered or threatened species, and will not destroy or adversely modify any critical habitat for such species, in consultation with and with the assistance of NMFS and FWS and in accordance with any RPA.

Hunton & Williams has an explanation of  the letter and the possible ramifications of the lawsuit.

Threatened and Endangered Mussels

            The United States Department of Interior Fish and Wildlife Service recently sent a letter reminding recipients that there are four endangered fresh water mussel species in West Virginia waters - the rayed bean, snuffbox, sheepnose and spectaclecase mussels.  Attached to the letter is a map indicating the general location of threatened and endangered species in the state.

The letter appears to be a general information letter that was sent to those involved in the Marcellus Shale gas industry, to remind them that their activities can affect the mussels by causing sedimentation that can smother the mussels, and by withdrawing excessive amounts of water from small streams.  The letter contains a reminder that actions that adversely affectmussels may constitute the take, harassment or harm of a species, and can result in violation of the Endangered Species Act (ESA).

            The letter is particularly useful for the map which shows the distribution of federally listed threatened and endangered species in West Virginia.  It also presents a clear explanation of what the ESA requires, and possible penalties for failure to comply.  It is similar to an effort started last year by the US Army Corps of Engineers to make companies working in the Marcellus Shale aware of the requirements of Section 404 of the Clean Water Act.  Section 404 permits are required for activities that fill wetlands, and the Corps was concerned about pad and pipeline construction that did not comply with the Section 404 Nationwide Permits.

Grant Awarded For Study Of Mine Drainage To Deckers Creek

This press release announces a grant to study treatment of mine water that flows into Decker's Creek in Morgantown.  Congratulations to the Friends of Deckers Creek for being awarded  the grant. 

MORGANTOWN, W.Va. (August 20, 2012) – The U.S. Environmental Protection Agency today joined city, state and non-profit officials in announcing $55,600 in federal funding to help pave the way for cleaning up mine pollution affecting Deckers Creek and highlighting the economic benefits of creek restoration.
“Today we begin a new chapter in the history of Deckers Creek – one holding great promise for both the health of the creek and the city’s economy,” said EPA Regional Administrator Shawn M. Garvin. “This project clarifies the connection between economic investment and resource restoration, while generating the necessary information for treating polluted water.”
The highly competitive grant from the EPA Urban Waters program will fund a study of an abandoned underground coal mine discharging polluted water into Deckers Creek, which runs for three miles through the City of Morgantown. The study will aid in the eventual treatment of the mine water.
The funds will also help initiate a public education campaign to advise business owners and the city’s development community about the economic potential of restoring Deckers Creek, and forming a community partnership to take the next steps in the process.
The grant was awarded to Friends of Deckers Creek, a community-based non-profit watershed group working to clean up Deckers Creek, a tributary of the Monongahela River that flows from Preston County into Monongalia County, W.Va. The creek is impacted by acid mine drainage and other pollution issues.
EPA’s Urban Waters program helps cities unleash the potential of their waterways and land around them. The funding supports communities’ efforts to access, improve and benefit from their urban waters and surrounding land.
Information on EPA’s Urban Waters program: http://www.epa.gov/urbanwaters/index.html.

Patriot, Environmentalists Report Agreement On Selenium

Ken Ward has reported  in the Charleston Gazette that environmentalists, led by Joe Lovett, have reached agreement with Patriot Coal Company about restructuring the selenium treatment obligations at Patriot mines. Patriot, which is struggling to get out of  bankruptcy, settled  Clean Water Act citizen suits last year by agreeing to  perform significant selenium treatment at their mines.  Those treatment costs are evidently one of the stumbling blocks to Patriot's emergence from bankruptcy.  As Ken reports:

At the end of 2011, Patriot listed its selenium liabilities as $196 million. In a quarterly filing on Aug. 9, Patriot added another $307 million to that amount. After accounting for accrued expenses, the company's reported selenium treatment liability was listed as $440 million.

That requires selling lots of coal just to pay for selenium treatment.  It will be interesting to see how the agreement is structured. 

Water Quality Standards Meeting Set for August 30

      The West Virginia Department of Environmental Protection’s Water Quality Standards Program will conduct a public meeting on Thursday, Aug. 30, from 1:30 to 3:30 p.m. The meeting will take place in the Coopers Rock Conference Room of DEP headquarters, located at 601 57th St., S.E, Charleston, W.Va.

Staff from the DEP will update the public on relevant Water Quality Standards Program information and upcoming program projects. A meeting agenda will be posted on the Water Quality Standards Program Web site:

http://www.dep.wv.gov/WWE/Programs/wqs/Pages/default.aspx

For more information, please contact Kevin Coyne at (304) 926-0499 or via email at Kevin.R.Coyne@wv.gov

Great Kanawha River Cleanup Set For September 8

The 23nd annual Great Kanawha River Cleanup, sponsored by the West Virginia Department of Environmental Protection, is scheduled from 9 a.m. to noon on Saturday, Sept. 8.

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, more than 100 volunteers collected 3.2 tons of trash and debris as part of the cleanup.

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.

Apocalypse Not - Matt Ridley Says It All

Matt Ridley has an excellent piece in Wired  about the apocalyptic thinking that pervades society, and how predictions of ecological, economic and societal disasters have inevitably proven  false. An endless parade of dire predictions  about acid rain, skyrocketing cancer deaths, peak fuel, and other scares turned out to be plain wrong.  He finishes with a discussion of the current disaster du jour,  climate change, and makes the common sense observation that adaptation to change is probably the best  response to any likely warming.  As he says:

So, should we worry or not about the warming climate? It is far too binary a question. The lesson of failed past predictions of ecological apocalypse is not that nothing was happening but that the middle-ground possibilities were too frequently excluded from consideration. In the climate debate, we hear a lot from those who think disaster is inexorable if not inevitable, and a lot from those who think it is all a hoax. We hardly ever allow the moderate “lukewarmers” a voice: those who suspect that the net positive feedbacks from water vapor in the atmosphere are low, so that we face only 1 to 2 degrees Celsius of warming this century; that the Greenland ice sheet may melt but no faster than its current rate of less than 1 percent per century; that net increases in rainfall (and carbon dioxide concentration) may improve agricultural productivity; that ecosystems have survived sudden temperature lurches before; and that adaptation to gradual change may be both cheaper and less ecologically damaging than a rapid and brutal decision to give up fossil fuels cold turkey.

State Calendar Photo Contest Begins

Those wishing to submit entries for the 10th annual West Virginia Operation Wildflower “Roadsides in Bloom” calendar photo contest have until Oct. 1, 2012. The contest is sponsored by the state departments of Environmental Protection and Transportation.

Judges will be looking for the best photographs of West Virginia wildflowers to include in the 2013 “Roadsides in Bloom” calendar. Photos must be taken in West Virginia.

Twelve winners will be selected to represent the months of the year and a grand prize winner’s photo will be displayed on the calendar cover. Contest rules are:

Entries must be submitted as an 8x10 color print and must be landscape orientation. Portrait orientation will not be accepted. It is best to submit a digital copy on a CD at the same time.

Flowers photographed must be growing along a West Virginia road and the road must be prominently visible in the photo. Flowers may be growing naturally or in an Operation Wildflower bed planted by the Division of Highways. Pictures of cultivated species planted in arranged beds, such as marigolds, pansies, etc., do not quality.

Name, address, phone number, e-mail address (if

available) and a short description of the photo, including location and county where it was taken, must appear in the upper left hand corner on the back of the photo. Photos will not be returned.

No more than three entries per person. One winning photo will be selected from any photographer’s entries. Winners will be required to submit a digital copy of the photo.

Entries should be mailed to: WV Operation Wildflower, Roadsides in Bloom Calendar Contest, WV Department of Environmental Protection/REAP, 601 57th St., S.E., Charleston, WV 25304.

The state’s Operation Wildflower beautification program is a joint effort between the DEP and the state’s Division of Highways. It includes more than 250 acres of wildflowers grown on West Virginia’s roadways. For more information about the calendar or the rules of the contest, call the Adopt-A-Highway Program at 1-800-322-5530.

Shifting Emissions - Appalachian Coal Is Aid to India

Kevin Begos of the Associated Press reports that carbon dioxide emissions are at their lowest level in 20 years, presumably because utilities have switched from burning coal to burning gas.  Good news for those of you who believe cataclysmic climate change is being driven by greenhouse gas emissions.

Or maybe not such great news.  Kentucky and West Virginia will be sending 9 million tons of coal per year to India that otherwise might have been burnt here.  Here's the takeaway quotation form the Huffington Post article:

"With 1.6 billion people on this planet not having access to electricity, there is a tremendous international market for our coal worldwide," said Kentucky Coal Association President Bill Bissett. "While we currently only export about 5 percent of our Kentucky coal overseas, we expect that number to grow."

 As long as people are living in energy poverty, they'll keep looking for a way out of it. And telling them to do without cheap power from coal in order to prevent global warming, when temperatures haven't risen worldwide in 15 years, is not likely to have much effect.

EPA Publishes Emissions Limits and Standards For Oil And Gas Sector

EPA has just published in the Federal Register its final  rules amending emissions and performance standards for the oil and gas production industry.  Here is the summary from the Federal Register:

Responding to the requirements of a consent decree, this action finalizes several rules that apply to the oil and gas production industry and significantly reduce emissions of air pollutants. More particularly, the action finalizes:  

• New source performance standards (NSPS) for the Crude Oil and Natural Gas Production and onshore natural gas processing plant source category. The EPA reviewed two existing NSPS for onshore natural gas processing plant source category under section 111(b) of the Clean Air Act (CAA). This action improves the existing NSPS and finalizes standards for certain crude oil and natural gas sources that are not covered by existing NSPS for this sector.  

• National Emissions Standards for Hazardous Air Pollutants (NESHAP) for the Oil and Natural Gas Production source category and the Natural Gas Transmission and Storage source category. The EPA conducted risk and technology reviews (RTR) for these rules under section 112 of the CAA. In addition, the EPA has established emission limits for certain currently uncontrolled emission sources in these source categories. These limits reflect maximum achievable control technology (MACT).

Check the Federal Register for more details. Compliance dates for New Source Performance Standards Subpart  OOOO are found at 77 Fed Reg 49497.  The compliance dates for the NESHAPs are found on page 49503.

Licensed Remediation Specialist Test Set For September 19

In West Virginia, the Voluntary Remediation and Redevelopment Act (W. Va. Code Chapter 22, Article 22) provides  liability protection for anyone who remediates  a brownfield site or cleans up other environmental contamination in accordance with the terms of the Act.  The person undertaking  the remediation must have a plan designed by, and overseen by, a Licensed Remediation Specialist, or LRS.  To qualify as a LRS, one must pass a test that is given periodically by the DEP.  The next such LRS  test is scheduled for September 19.  See the announcement from the DEP, below.

            CHARLESTON – The Department of Environmental Protection is announcing that the next examination for licensed remediation specialist certification will be held from 1:30 to 3:30 p.m. on September 19, 2012 at Graduate College – South Charleston Campus, Room 205 of the Robert C. Byrd Academic Center Building, 100 Angus E. Peyton Drive, South Charleston, West Virginia.

      Certification is required for anyone submitting voluntary remediation and brownfields cleanup designs to the agency’s Office of Environmental Remediation (OER) for review.

      To qualify for the exam, you must have a bachelor’s degree in an approved scientific field and at least six years of relevant professional experience. You can also qualify with a high school diploma and 10 years of relevant professional experience. In either case, you must have at least one year of supervisory or project management experience.

      To take the exam, register online at www.dep.wv.gov. Under the Office of Environmental Remediation, go to the licensed remediation specialist online application and follow the instructions. Fees of $300 for the application and

$250 for the examination are required.  Online applications must be received by September 5, 2012.

      Only approved candidates with picture identification cards will be admitted to the testing site. Photo identification and the $250 testing fee must be presented before the exam starts.

      For more information about the exam, call Jamie Wolfe, CEGAS Manager, at (304) 696-6042, or by email at jawolfe@marshall.edu. Marshall University

(CEGAS) administers the licensing exam for OER.

      The legislature enacted the voluntary remediation and brownfields law during the 1996 legislative session. Voluntary remediation involves a responsible party cleaning up a site for future development, and brownfields involves clean up by a third party.

Sixth Circuit Rules Against EPA Natural Gas Aggregation Interpretation

Natural gas wells will be less likely to be subject to permitting under the Clean Air Act following a recent decision by the United States Court of Appeals for the Sixth Circuit, Summit Petroleum Corporation v. U.S. EPA, Nos. 09-4348; 10-4572.  EPA had decided that a natural gas sweetening plant and numerous gas wells connected to it were part of a single facility, and as such their emissions had to be aggregated in order to determine whether together they constituted a major stationary source. (Major sources are subject to more extensive permit and emissions control requirements under the Clean Air Act.) Sites are considered a single facility, and their emissions are added together, if they are commonly owned, part of the  same SIC Code grouping, and are located on contiguous or adjacent property. Summit conceded the first two parts of that test were met, but contended the third was not.  

EPA disagreed, concluding that Summit’s facilities were located on “adjacent properties” because, although the wells and sweetening plant were not located on contiguous properties, they were “functionally interrelated” because they were connected by a pipeline, and the wells relied on the sweetening plant to produce pipeline quality gas.  EPA believed that relationship satisfied the requirement of adjacency.  The Sixth Circuit parsed the word “adjacent” and found that it required the wells and sweetening plant to be closely located in a physical or geographical sense, not functionally dependent on one another.  The case was remanded for EPA to determine whether there was sufficient physical proximity for the emissions from all the sources to be aggregated for purposes of regulation.

The Sixth Circuit decision is similar to that reached by the West Virginia Air Quality Board in May, 2011, finding that natural gas wells and compressor stations need not be aggregated.  Hughes v. Benedict and Appalachia Midstream Services LLC

EQB Mandates Numeric Limits in Mining Permit To Protect Narrative Water Quality Criteria

On March 25, 2011 The West Virginia Environmental Quality Board issued a final order addressing many issues raised by environmental groups who had challenged a NPDES permit issued to Patriot Coal. The initial decision (which I did not locate on the EQB's web site)  remanded the permit to the DEP to take further action.  The DEP and the coal company, which had intervened, appealed that portion of the decision that required the DEP to do a reasonable potential analysis for conductivity, sulfates and total dissolved solids (TDS) .  The Circuit Court ordered the EQB to file supplemental findings of fact and conclusions of law that support its decision with regard to conductivity, sulfates and TDS.

There are no numeric water quality criteria for conductivity, sulfates, or TDS.  On remand, the environmentalists argued, and a majority of the Board agreed, that numeric limits are required in Patriot's permit in order to implement West Virginia's  narrative water quality standards at 47 CSR 2-3. Among other things, the narrative standard generally prohibits discharges that contain "materials which are harmful . . . to . . . aquatic life. "  The Board  concluded that the levels of conductivity, sulfates and TDS draining from Patriot's point sources adversely affected mayflies and other biota, and therefore permit limits must be set which would prevent such  damage.

The Board's July 30, 2012 supplemental  decision is required reading for anyone involved in NPDES permitting, because it demonstrates how the  EQB may require numeric permit limits for  substances or conditions that have no numeric water quality criteria.  I don't know whether the DEP and/or Patriot will appeal; they have very able counsel who are no doubt weighing their chances, as well as the fact that Patriot is in bankruptcy right now.

There were a couple aspects of the decision that interested me, beyond the decision itself. One was that the Board split 3-2, with Drs. Gilllespie and Blake opposing the Board's action.  Ordinarily the Board issues unanimous decisions, and this suggests that the recent addition of Dr. Blake to the Board may mean that we will see dissenting opinions in the future. The other is that the Board remanded the permit to the DEP to modify the permit.  Although this has frequently been done by the Board, it does not have that power. Under W. Va. Code 22B-1-7(g), the Board can  affirm, modify or vacate the order, or make such order as the DEP should have made, or approve or modify the terms of any permit.  It has no authority to remand the permit with instructions. A similar remand was challenged by the Division of Air Quality in an appeal of the AQB's decision in the TransGas case.  The Circuit Court of Kanawha County has not ruled on that, yet.

Over-Estimating Global Warming

Anthony Watts and others have made available the results of their study showing that the mis-siting of weather stations is responsible for about half of the reported warming in the United States over the past 30 years.  Weather stations are supposed to be put in grassy areas, away from concrete and other substances that absorb significant heat and re-radiate it.  It turns out that many of the nation's weather stations have been located near blacktop roads, on south-facing walls and otherwise are found in  places that show localized  higher-than-actual temperatures.  The result is that the nation's weather reporting system is influenced by the urban heat island (UHI) effect, where cities, with more concrete, blacktop and black tar roofs, soak up more heat than rural areas.  Relying on temperature reports from these areas reflects the effects of increasing urbanization, not changes in temperature or climate.

Here's the summary:

A reanalysis of U.S. surface station temperatures has been performed using the recently WMO-approved Siting Classification System devised by METEO-France’s Michel Leroy. The new siting classification more accurately characterizes the quality of the location in terms of monitoring long-term spatially representative surface temperature trends. The new analysis demonstrates that reported 1979-2008 U.S. temperature trends are spuriously doubled, with 92% of that over-estimation resulting from erroneous NOAA adjustments of well-sited stations upward. The paper is the first to use the updated siting system which addresses USHCN siting issues and data adjustments.

The new improved assessment, for the years 1979 to 2008, yields a trend of +0.155C per decade from the high quality sites, a +0.248 C per decade trend for poorly sited locations, and a trend of +0.309 C per decade after NOAA adjusts the data. This issue of station siting quality is expected to be an issue with respect to the monitoring of land surface temperature throughout the Global Historical Climate Network and in the BEST network.

You can see Mr. Watts' draft paper, and some of the comment on it, here. The continuing discussion is found here.

DC Court Rejects EPA Conductivity Guidance for Coal Mining

On July 31 Judge Reggie Walton (U.S. District Court for the District of Columbia) issued an opinion and order   rejecting  the federal Environmental Protection Agency’s (EPA) final conductivity guidance document.  The following summary of the decision was prepared by Jason Bostic of the West Virginia Coal Association. 

Today’s opinion from Judge Walton represents the second part of the case filed by the State of West Virginia, the National Mining Association and others challenging various parts of the “coordinated” federal regulatory review and consideration of  Appalachian coal mining operations outlined in a multi-agency Memorandum of Understanding in June 2009.

 In the first part of the case, Judge Walton invalidated the “Enhanced Coordinated Process” for reviewing coal-mining related Clean Water Act (CWA) Section 404 permits by EPA and the U.S. Army Corps of Engineers.  In the attached order, Judge Walton declares “…the Final [conductivity] Guidance, as an unlawful agency action, is hereby set aside.”

In the attached decision, Judge Walton concludes that EPA has overstepped its authority and trampled the rights reserved to individual states under the CWA:

Accordingly, the EPA’s “presumption” that, based on the scientific studies regarding conductivity, it is likely that all discharges will lead to an excursion or that the conductivity studies will be instructive on the matter, removes the reasonable potential analysis from the realm of state regulators. In other words, by presuming anything with regard to the reasonable potential analysis, the EPA has effectively removed that determination from the state authority. And there can be no question that a plain reading of the regulation leaves that determination, and the decision as to when it must be made, solely to state permitting authorities.

Should the EPA wish to alter the manner by which an reasonable potential analysis is conducted, it is of course free to amend the regulation in a manner consistent with the APA and its own statutory authority. Until it does so, however, it cannot make the reasonable potential determination for the states.

Judge Walton also ruled that EPA has illegally sought to extend its influence and control to regulatory areas addressed by the Surface Coal Mining & Reclamation Act and individual state mining regulatory programs:

…in circumstances where the EPA lacks the authority to issue the permits, whether there is overlap between requirements for SMCRA permits and CWA permits is of no moment. Accordingly, the EPA cannot justify its incursion into the SMCRA permitting scheme by relying on its authority under the CWA—it has no such permitting authority. The EPA has therefore impermissibly interjected itself into the SMCRA permitting process with the issuance of the Final Guidance.

This is an important rejection of EPA's attempt to control mining through imposition of conductivity criteria that are difficult to meet.  Here is some of the reaction  from Bloomberg and the Washington Post