Is The Diamond Darter West Virginia's Next Endangered Species?

On July 26, 2012  the Department of the Interior proposed listing the Diamond Darter as an endangered species and to designate portions of the lower  Elk River as critical habitat:  Here is the start of the  Federal Register notice

SUMMARY: We, the U.S. Fish and Wildlife Service, propose to list the diamond darter (Crystallaria cincotta) as endangered under the Endangered Species Act of 1973, as amended (Act); and propose to designate critical habitat for the species. In total, approximately 197.1 river kilometers (122.5 river miles) are being proposed for designation as critical habitat. The proposed critical habitat is located in Kanawha and Clay Counties, West Virginia, and Edmonson, Hart, and Green Counties, Kentucky.

The Notice includes the following findings, for which the Department of the Interior was seeking comment

We have made the following finding related to these criteria:
• Diamond darter is endangered by water quality degradation; habitat loss; inadequate existing regulatory mechanisms; a small population size that makes the species vulnerable to the effects of the spread of an invasive alga (Didymosphenia geminate); loss of genetic fitness; and catastrophic events, such as oil and other toxic spills. This rule proposes to designate critical habitat for the diamond darter.
• Critical habitat designation would not be expected to increase threats to the species, and we have sufficient scientific information on the diamond darter to determine the areas essential to, and essential for, its conservation. Accordingly, we have determined the designation of critical habitat is both prudent and determinable.
• In total, we propose to designate approximately 197.1 river kilometers (122.5 miles) as critical habitat. The proposed critical habitat is located in Kanawha and Clay Counties, West Virginia, and Edmonson, Hart, and Green Counties, Kentucky.

The West Virginia Coal Association and the Department of Environmental Protection filed comments  opposing the listing.  The DEP noted that coal mining was identified as a threat to the diamond darter's existence, but little of the Elk River watershed has been mined. The DEP also said that the diamond darter's survival to the present means that it has come through worse water  quality conditions than presently exist, and that the demise of the diamond darter has largely occurred in streams with impoundments, which allow silt to settle and cover the substrate, while the Elk is largely undammed. The Coal Association contends that there is no evidence that the current environmental regulations are failing to protect the darter, that the determinations of the water quality necessary to support the darter are  based on studies of related species, not the diamond darter, and there is no evidence that conductivity levels in the Elk pose a problem to the darter.

Ninth Circuit Rules Global Warming Lawsuit Preempted By Congressional Action

The Ninth Circuit has affirmed the federal District Court's dismissal of the claim by the  native Alaskan village of Kivalina that several energy companies were responsible for global warming, which contributed to reduced sea ice, which caused the community to relocate their village. As Robert Cook of Bloomberg BNA reports: 

 The U.S. Court of Appeals for the Ninth Circuit held that the Clean Air Act and Environmental Protection Agency actions taken under the statute “displace” a claim by the native village and city of Kivalina for damages caused by greenhouse gas emissions by energy producers.

The Ninth Circuit's decision  did not reach the merits of the villagers' claims, but instead ruled that their common law claims have been preempted by legislative action:

In sum, the Supreme Court has held that federal common law addressing domestic greenhouse gas emissions has been displaced by Congressional action. That determination displaces federal common law public nuisance actions seeking damages, as well as those actions seeking injunctive relief. The civil conspiracy claim falls with the substantive claim. Therefore, we affirm the judgment of the district court. We need not, and do not, reach any other issue urged by the parties.

This was one  of several nuisance suits filed years ago  in an attempt to make money from the catastrophic global warming meme.  You can see the Ninth Circuit's decision here.

Unexpected Carbon Dioxide Emissions From Wind Power

One law  that you can't avoid is the  Law of Unintended Consequences.  Bishop Hill (aka Andrew Montford) recently offered a blog post with the intriguing suggestion that the combination of wind power and intermittent  gas-fired back up (which is necessary if the lights aren't to go out when the wind stops blowing)  result in more carbon dioxide emissions than steady production of power through combined cycle gas turbines, or CCGTs.  The explanation is that CCGTs are much more efficient than standard gas turbines when run continuously, but the secondary power generation from the heat exchangers that contributes to their efficiency  takes too long to fire up, and therefore CCGTs can't be used  effectively as auxiliary power when the wind drops.  Here is how it was explained in one of his posts last month.:

[A]s wind rarely produces more than 25% of its faceplate capacity it needs 75% backup - which due to the necessity of fast response times needs OCGT generation (CCGT can respond quickly but the heat-exchanger systems upon which their increased efficiency relies, cannot - so CCGT behaves like OCGT under these circumstances). CCGT produces 0.4 tonnes of CO2 per MWh, OCGT produces 0.6 tonnes. Thus 0.6 tonnes x 75% = 0.45 tonnes. Conclusion: Wind + OCGT backup produces more 0.05 tonnes of CO2 per MWh than continuous CCGT.

Here is where it came from originally, and there are some interesting comments  at that blog.

All this came to mind this morning when I  read  George Hohmann's piece in the September 24 Daily Mail about wind power in West Virginia.  There's a real question as to whether wind power can survive without subsidies, and one of the primary justifications for subsidizing wind power is to cut carbon emissions.  It looks like that may not be the case.

Are Coal Mines Major Sources And Subject To Greenhouse Gas Limits?

Regulated  greenhouse gases are more than just carbon dioxide.  They also include methane, and coal mines can produce large quantities of methane as part of the coal removal process.  GHGs are measured in "carbon dioxide equivalents",  which are  multipliers that are applied to some gases to show their (supposed) greater global warming effect. For methane, the multiple is 25.

Major stationary sources of GHGs are required to be permitted under EPA's interpretation of the Clean Air Act.  Are coal mines major stationary sources?  The jury is still out.  Here is an analysis of the question  prepared by Anne Blankenship and me.  Anne did the lion's share of the work, and did the presentation at the Energy and Mineral Law Foundation, which is a great resource for those interested in  natural resources law in the East.

Cutting to the chase, here is what West Virginia nearby states were doing as of the time the paper was written, in June of 2012:

Many coal producing states have taken the position that for purposes of Title V applicability, coal mines will not be required to submit permit applications, as their emissions are fugitive and not required to be considered in determining major source status.  On June 5, 2012, the Chief of Ohio EPA’s Division of Air Pollution control sent a letter on behalf Ohio, Illinois, Indiana, Kentucky, Virginia, and West Virginia, explaining their determination that methane emissions from active underground mines are “fugitive emissions”.   These states relied upon EPA’s GHG reporting rule preamble that discussed the calculation of GHGs and characterized the emissions from ventilation air systems and degasification systems as fugitive.   Second, the states argued that emissions of methane from mines cannot reasonable be captured due to the nature of the safety reasons for the purpose of the ventilation system.   The letter also stated that the coal mine industry does not have a national standard for collection or control of methane emissions.    Further, the states noted, any Title V permit would be hollow or an “empty permit”  because the would not contain substantive requirements, since none exist for coal mines. 

The consensus of these states is that coal mining facilities should not be required to obtain Title V permits and that they would not require facilities in their state to submit a permit application.   The letter also included a sample letter that the states intend to send to facilities that request whether a permit is necessary.  It also addressed a May 22, 2012 email from EPA to the National Association of Clean Air Administrators, wherein EPA stated that methane emissions from underground coal mines should be considered point source emissions.   Finally, the states requested that EPA reconsider its position and offer a prompt response, since the deadline for filing Title V permit applications was July 1, 2012.   As of June 26, 2012, EPA had not responded to the letter, nor issued a formal written position.  

West Virginia Solicits Input On Triennial Review of Water Quality Standards

 The West Virginia Department of Environmental Protection is soliciting public input on potential revisions to the state’s water quality standards, which will be under review as part of the 2014 Triennial Review process. The state is required to review water quality standards every three years, and this review effort will begin in 2013.

West Virginia’s water quality standards are found in Legislative Rule 47 CSR 2 “Requirements Governing Water Quality Standards.” A copy can be found on the agency’s Water Quality Standards Program Web page:  http://www.dep.wv.gov/WWE/Programs/wqs/Pages/default.aspx.

Proposed revisions can include a revision to a current standard, additional standard(s) and/or deletion of a standard(s). Any submission must clearly state the revision being proposed and include sound scientific justification for the revision. The agency will be accepting submissions until Oct. 12, 2012. All electronic submissions should be sent to Kevin Coyne at Kevin.R.Coyne@wv.gov.

Although electronic submission is highly preferred and encouraged, non- electronic submissions can be sent to the West Virginia Department of Environmental Protection, Division of Water and Waste Management, Water Quality Standards Program, Attn: Kevin Coyne, 601 57th St. S.E., Charleston, WV 25304.

Non-electronic submissions must be postmarked by Oct. 12, 2012 to be considered during this effort.

Electronics Recycling Sept. 15 In Charleston

It's hard to find a place that will accept used computers, old phones and other electronics you want to junk.  Well, for people in the Charleston area, here's your chance to dump your e-stuff

The West Virginia Department of Environmental Protection is conducting a free electronics recycling event from 9 a.m.to 3 p.m., on Saturday, Sept. 15. The public can drop off items at the DEP headquarters’ parking lot, located at 601 57th St., S.E., Charleston.

The DEP’s Rehabilitation Environmental Action Plan (REAP) and MRM Recycling are sponsoring the e-cycling event to make it easy for West Virginians to responsibly dispose of electronic devices. State law prohibits TVs, computers and other electronic devices with video screens 4 inches and larger from being discarded into landfills. The law went into effect Jan. 1, 2011.

Devices that will be accepted for recycling on Sept. 15 include televisions, computers, printers, copiers, zip drives, video game devices, electronic cables, laser and multifunction scanners, fax machines, laptops, mice, keyboards, speakers, Webcams, monitors, cables, hard drives, circuit boards, cell phones, CD players and tape players.

Devices that will not be accepted include kitchen appliances, refrigerators, washers, dryers, freezers, microwaves, air conditioners, lamps, CDs, DVDs, floppy disks, magnetic tapes, household batteries and home thermostats.

Last year, three electronics recycling events sponsored by the DEP yielded more than 50 tons of electronic waste.

For more information call 1-800-322-5530.

Chase Bank Pays EPA For Boone County Superfund Cleanup

JPMorgan Chase Bank to Reimburse Government $1.28 Million

for Cleanup of Boone County, W.Va. Superfund Site

PHILADELPHIA (Sept. 5, 2012) - In a settlement announced today by the
U.S. Environmental Protection Agency, JPMorgan Chase Bank has reimbursed the federal government $1.28 million for costs incurred by EPA in cleaning up the Browning Lumber Company Superfund Site in rural Bald Knob, Boone County, W.Va. Under the Superfund law, past and current owners and operators of a Superfund site are responsible for the cleanup costs.   

Cleanup of the Browning Lumber Co. site was completed earlier this year and included extensive cleanup by EPA prior to cleanup work performed by JPMorgan Chase -- the corporate successor to a former site owner. The site will be eligible for appropriate re-use as part of West Virginia’s voluntary cleanup program, which encourages voluntary clean-ups of contaminated sites as well as redevelopments of abandoned and under-utilized properties.

Starting in 1976, Charleston National Bank, owner of the site as trustee of the Shepard Trust, leased the property to the Browning Lumber Co., which harvested timber and used part of the property for wood-treatment. Charleston National is now merged with JPMorgan Chase.

The site became contaminated after decades-long wood-treating activities using chromated copper arsenate (CCA). CCA contains the hazardous substances chromium, copper and arsenic.  Although the facility ceased operations by 1998, hazardous substances, primarily arsenic in soil, continued to pose a threat to human health and the environment.

Following a fire, EPA first investigated the site in late 2005 and later conducted a cleanup in 2006 and 2007 that included decontamination of the old wood-treatment facility, stabilization of a large area of contaminated soil, and proper disposal of 100 cubic yard of soil contaminated with arsenic and chromium and 43 drums of liquid and solid hazardous wastes.

For more information on this site, visit http://www.epaosc.org/site/site_profile.aspx?site_id=1961

Cutting Edge Vacuum Tube Technology

The more things change, the more they stay the same.   Ecogeek has a report on a new/old  approach to electronics - replacing solid state circuits with miniaturized vacuum tubes that would decrease resistance and increase circuit and computational speeds.

Jurisdictional Waters

Here is a PowerPoint presentation that I did for the Energy and Mineral Law Foundation last fall.  It is a little dated now (NWP 12 is no longer suspended), but it still may be helpful for anyone analyzing the Rapanos case, at least until the new guidance is finished. Here is the narrative that went with it.

If you're not a member of the EMLF, you should check it out, as it is a great resource for those involved in natural resource development.