West Virginia Environmental Law

West Virginia Make It Shine Applications Available

2012-01-20T09:42:00.001-08:00

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

2012-01-19T06:07:00.000-08:00

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

2012-01-17T06:01:00.000-08:00

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

2012-01-12T07:47:00.000-08:00

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
R008

Fourth Circuit Upholds State Mining Program Definition of "Material Damage"

2012-01-11T07:44:00.000-08:00

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

2012-01-04T05:32:00.000-08:00

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

2012-01-03T06:18:00.000-08:00

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.

Renewable Fuel Standards and Biofuels

2011-12-28T06:55:00.000-08:00

Below is EPA's press release regarding the annual Renewable Fuel Standard targets for 2012. Note the low standard for cellulosic biofuels, which at one time were expected to be the mainstay of biofuel production. That hasn't happened, as some companies find they can't meet production targets with cellulosic feedstocks, and have to use corn. However, some companies, like Mascoma, believe they've found a way to produce ethanol from wood chips for less than $2.00 a gallon, unsubsidized. Here's hoping they can do it, as a plant of that sort would be perfect for West Virginia.

WASHINGTON -- The U.S. Environmental Protection Agency (EPA) today finalized the 2012 percentage standards for four fuel categories that are part of the agency’s Renewable Fuel Standard program (RFS2). EPA continues to support greater use of renewable fuels within the transportation sector every year through the RFS2 program, which encourages innovation, strengthens American energy security, and decreases greenhouse gas pollution.

The Energy Independence and Security Act of 2007 (EISA) established the RFS2 program and the annual renewable fuel volume targets, which steadily increase to an overall level of 36 billion gallons in 2022. To achieve these volumes, EPA calculates a percentage-based standard for the following year. Based on the standard, each refiner and importer determines the minimum volume of renewable fuel that it must ensure is used in its transportation fuel.

The final 2012 overall volumes and standards are:

Biomass-based diesel (1.0 billion gallons; 0.91 percent)
Advanced biofuels (2.0 billion gallons; 1.21 percent)
Cellulosic biofuels (8.65 million gallons; 0.006 percent)
Total renewable fuels (15.2 billion gallons; 9.23 percent)

Last spring EPA had proposed a volume requirement of 1.28 billion gallons for biomass-based diesel for 2013. EISA specifies a one billion gallon minimum volume requirement for that category for 2013 and beyond, but enables EPA to increase the volume requirement after consideration of a variety of environmental, market, and energy-related factors. EPA is continuing to evaluate the many comments from stakeholders on the proposed biomass based diesel volume for 2013 and will take final action next year.

Overall, EPA’s RFS2 program encourages greater use of renewable fuels, including advanced biofuels. For 2012, the program is implementing EISA’s requirement to blend more than 1.25 billion gallons of renewable fuels over the amount mandated for 2011.

More information on the standards and regulations: http://www.epa.gov/otaq/fuels/renewablefuels/regulations.htm

More information on renewable fuels: http://www.epa.gov/otaq/fuels/renewablefuels/index.htm

Update - Here's an article by Dan Piller of the Des Moines Register, who does a good job of explaining more about the history and status of biofuels.

Abandoned Mine Land Funds Released

2011-12-27T10:33:00.000-08:00

One of the legacies of coal mining in West Virginia is the presence of unreclaimed mine sites that pre-date the adoption of the Surface Mine Control and Reclamation Act. Coal companies pay a a tax on each ton of coal mined, which is to be used for reclamation of these abandoned mine lands.

The US Department of the Interior recently announced it was returning some of these fees to the states for their intended purpose - paying for site remediation. Here's the West Virginia DEP's press release:

West Virginia’s Office of Abandoned Mine Lands and Reclamation will receive $66.5 million in federal grant money for 2012 to eliminate health and safety hazards created by historical coal mining.

West Virginia’s share comes from the nearly half a billion dollars in grants the U.S. Office of Surface Mining (OSM) is awarding state AML programs to address issues associated with pre-law mining. Funding for AML grants is generated through fees placed on coal mined both above and underground and is distributed to states through a congressionally mandated formula under the Surface Mining Control and Reclamation Act (SMCRA) of 1977.

A 2006 amendment to SMCRA called for a phase-in of increased funding for AML programs. Because of that increase, West Virginia will receive its highest funding amount ever in 2012, said Eric Coberly, who directs the state’s AML program for the Department of Environmental Protection.

West Virginia grant money will be used for reclamation projects, eliminating acid mine drainage in state streams and extending waterlines to communities in need of clean drinking water. Funding is set aside, as well, for emergency projects. Coberly said West Virginia currently has about 40 reclamation projects in design, worth about

$32 million.

“This money will enable us to maximize funding in all areas of our AML program and help us better carry out our mission of improving the quality of life for the citizens of West Virginia,” Coberly said.

West Virginia’s $66.5 million funding amount trails only Wyoming ($150 million) and Pennsylvania ($67.2 million).

OSM said AML funding in 2012 will generate more than $1 billion in economic activity and support thousands of jobs across the country.

“When our nation enacted mining reform in 1977, we made a simple and bold promise that the revenues from coal extraction today should help clean up the legacy of coal mining many years ago,” U.S. Secretary of the Interior Ken Salazar said in a news release. “These grants help fulfill that promise, while putting men and women to work across the country on restoration projects that will bring lands back to life, clean up rivers, and leave a better legacy for our children and grandchildren.”

Mercury MACT Rule Announced by EPA

2011-12-26T13:41:00.000-08:00

The US EPA has proposed a new rule setting air toxics standards for utilities. Utilities will have to use Maximum Achievable Control Technology (MACT) in order to meet strict new emission limits on mercury, arsenic, acid gas, nickel, selenium, and cyanide. Here's the start of EPA's press release:

WASHINGTON – The U.S. Environmental Protection Agency (EPA) has issued the Mercury and Air Toxics Standards, the first national standards to protect American families from power plant emissions of mercury and toxic air pollution like arsenic, acid gas, nickel, selenium, and cyanide. The standards will slash emissions of these dangerous pollutants by relying on widely available, proven pollution controls that are already in use at more than half of the nation’s coal-fired power plants.

EPA estimates that the new safeguards will prevent as many as 11,000 premature deaths and 4,700 heart attacks a year. The standards will also help America’s children grow up healthier – preventing 130,000 cases of childhood asthma symptoms and about 6,300 fewer cases of acute bronchitis among children each year.

The BNA report by Jessica Coomes and Andrew Childers is here.

Craig Rucker, says that the rule is based on "false science and economics." He is with the Committee for a Constructive Tomorrow (CFACT) , which appears to be a conservative advocacy group. His take on the rule can be found here.

2011-12-21T06:15:00.000-08:00

Shale gas is turning into a bonanza for West Virginia. It became viable economically because George Mitchell spent years developing ways to economically drill horizontal wells and frac them in order to release gas from tight shale formations. He is a pioneer that deserves the plaudits he is receiving.

Mike Shellenberger of the Breakthrough Institute has something to add to this history. As he notes in an article that was carried in the Washington Post, Mitchell benefited from substantial investment by the US government in the development of horizontal drilling and fracturing shale, some of which research was done in Morgantown. The research was done during times that low prices for oil and gas would have discouraged private investment.

Giving the federal government credit where it is due takes nothing away from Mitchell, who was determined and tenacious. But the lesson of the shale gas revolution is that we should not be so quick to judge government investments in energy technology. Between 1978 and 2007, the Energy Department spent $24 billion on fossil energy research. Billions more were spent through the Gas Research Institute and non-conventional gas tax credits. Those investments were widely panned as a failure during the ’80s and early ’90s, when gas was plentiful and cheap.

Mike has a good point. This is exactly the type of investment in research that the federal government should be making, whether for fossil fuels or alternative energy sources. What it shouldn't do is pick winners in the marketplace, through tax credits, loan guarantees or other support for individual companies. Solyndra is a good example of how that can turn out.

Report On Cumulative Effect Of Mountaintop Mining

2011-12-14T06:18:00.000-08:00

A team from Duke University has reported on the cumulative effects of mountaintop mining on stream health in the latest Proceedings of the National Academy of Sciences. I haven't read it, but the abstract is here, and stories from Ken Ward of the Gazette and Pam Kasey of the State Journal are available.

West Virginia, Ecuador and the Legal System

2011-12-14T06:05:00.000-08:00

Some West Virginians see the the state as one that was (and is) dominated by out-of-state coal, oil and gas and land companies that manipulated the political and judicial process in order to take the state's treasures and leave it with little but environmental liabilities. Those who feel that way probably feel some kinship with the inhabitants of the Ecuadorian rain forest, who brought suit against Texaco, later purchased by Chevron, and won a multi-billion dollar judgment against the company for natural resource damages and personal injuries. The story was compelling - a large multinational was taking advantage of the less sophisticated natives and destroying the land. A documentary, Crude, was made about the lawsuit.

How much of that story is true, I couldn't tell you. But it was interesting to find out that the substance of the Ecuadorean lawsuit has been called into question. Ann Meist, a member of Strauss Consulting and one of the experts who helped prepare the case for groundwater contamination against Chevron, is caught in a film outtake in which the lead American lawyer, Steven Donziger, appears to be suggesting that a public outcry, rather than facts, are all that is needed to win the case in an Ecuadorian court. The clear impression I took away is that the contamination was not nearly as great as represented by Donziger and Meist in court.

Chevron has filed a RICO action against Donziger, Meist and others, alleging that they conspired to extort money from Chevron by means of a specious legal action in Ecuador, using ginned-up data and misrepresentations. It's an interesting read.

BP Statistical Review of World Energy 2011

2011-12-14T05:30:00.000-08:00

BP has a fascinating website that is called the Statistical Review of World Energy 2011. It is full of information about energy usage, energy reserves, and all aspects of the industry, from renewables to fossil fuels. If you want to do research on energy sources there's a series of Excel spreadsheets that allow you to easily compare energy use by type, country, year, etc.

A Small Victory in the Battle Against Straight Pipes

2011-12-13T05:47:00.000-08:00

Straight piping, or discharging sewage directly to a stream from a house or business, is a problem in rural West Virginia. In many of southern West Virginia's narrow hollows there is little space for a treatment system, and in any event there is often little money for building and maintaining the treatment plant. Here is one community in McDowell County, along Windmill Gap Creek, that managed to eliminate straight pipes with some innovative thinking and help from the Canaan Valley Institute.

The Interdependence of Coal, Electricity and Prosperity

2011-12-05T10:03:00.000-08:00

Charles McElwee,one of the name partners of Robinson & McElwee and a consummate lawyer, has done an analysis of the relationship between coal, electricity and economic well-being. Among other things, he explains why renewable energy sources simply won't be sufficient to satisfy the growing need for power in the foreseeable future. I have linked to the article here. To get an idea of his position, the following is the preface to the article.

Preface. The “renewable” energies of solar and wind are impractical alternatives for generating within the next several years any significant percentage of the world’s, including the United States’, and West Virginia’s, demand for electricity. To contend otherwise is promoting a myth.

Basic to the argument are (1) that all nations, particularly the developing ones, want their citizens to be increasingly prosperous; (2) that expanding prosperity is dependent on greater electricity consumption for there is a correlation between levels of prosperity and the use of electricity; and (3) that presently and at least for the next twenty-five years, hydrocarbons are the only fuels that can generate electricity on the scale, at the cost, and with the dependability that the world, including the United States, will require.

Nationwide Permits and the Oil and Gas Industry

2011-12-04T13:38:00.000-08:00

Staff from the US Army Corps of Engineers made a presentation to the West Virginia Oil & Natural Gas (WVONGA) Environmental Committee last week on the subject of the U.S. Army Corps of Engineers Regulatory Role in Oil and Gas Drilling Activities. It was a very useful summary of the Corps' role in permitting stream crossings and all other oil and gas activities that occur in jurisdictional waters.

At the meeting we were given a nice compilation of the Nationwide Permits in West Virginia. They set out the Nationwide Permits themselves, the permit-specific Regional Corps of Engineers conditions, if any, and the permit-specific state 401 certification conditions, if any. In addition, there are the West Virginia 401 certification requirements that apply to all the nationwide permits.

For those wanting to learn more about nationwide permits, there is a reasonably good explanation in the February 16, 2011 Federal Register notice. The nationwide permits expire in March of 2012, and the Corps already began soliciting comments on how they should be changed. In order to give time for commenting and for the Corps to prepare a response to comments, the Corps is expected to propose the new nationwide permits soon, perhaps this week.

Job Creation From The Energy Sector

2011-11-28T07:38:00.000-08:00

The Wall Street Journal has an editorial pointing out the obvious - while billions have been poured into subsidies of green energy, it's traditional energy sources, principally oil and gas, that have provided thousands of jobs. If you have been traveling in northern West Virginia and needed a hotel room recently, you know the effect the Marcellus boom is having there.

None of this is to say that the federal government shouldn't have an energy plan. But its efforts should be directed to basic research that helps bring better products, like batteries and more efficient engines, to the point where they can be marketed. After that, leave it to the market to decide what should survive and what should fail. The federal government shouldn't be picking winners and losers through subsidies.

New Environmental Quality Board Members Appointed

2011-11-26T15:51:00.000-08:00

There are two new members of the Environmental Quality Board, Dr. Charles Somerville , dean of the Marshall University College of Science, and Dr. Mitch Blake, coal program manager of the WV Geological and Economic Survey. I didn't find much written about Dr. Blake, although he has been quoted in a few newspaper articles and has been the author of several papers available on the web.

Drs. Somerville and Blake replace Ted Armbrecht and Dr. James Van Gundy, both of whom had been serving expired terms. In fact, all five board members had been serving expired terms before the most recent appointments. Now there are three members being carried over - Drs. Simonton, Snyder (chair) and Gillespie. There has been no word as to whether they will be reappointed, or will continue to serve expired terms.

The EQB tends to have more academics serving on it than other environmental appeals boards, due to a requirement, originating in the Clean Water Act, that Board members only receive a certain amount of their income from organizations that hold NPDES permits. That prevents many person employed in industry from qualifying to serve on the Board.

Here is Ken Ward's article on the appointments.

Climategate 2 Is Breaking Now

2011-11-22T06:53:00.000-08:00

Almost 2 years ago, before the Copenhagen Climate Change meeting, a large number of emails from East Anglia University and elsewhere showed that there was something rotten in the "science" of climate change studies. It appears that a new release of emails has just occurred, which interested readers have begun to be mine for information about the machinations of the global warming machine.

Try looking here and at TallblokesTalkshop blog. Something is also now up on Watts Up With That, just posted a little bit ago.

I hate the tendency to add "gate" to everything to denote a scandal, but that's a fight I lost a long time ago.

Why Durban Won't Result In A Greenhouse Gas Reduction Agreement

2011-11-09T07:03:00.000-08:00

The nations are gathering in Durban, South Africa at one of their annual meetings to decry the continued havoc that they maintain greenhouse gases are wreaking on the world. Leaving aside the question of whether the science supports their fears, nothing is going to be done to restrict GHG emissions. National self-interest in developing countries will trump the science every day.

The Carbon Dioxide Information Analysis Center has published the preliminary 2009 and 2010 global and national estimates of carbon emissions from fossil-fuel combustion and cement manufacture. The data show huge increases in carbon emissions for the developing world, small reductions for much of the developed world. A chart based on the CDIAC data is in this article and easier to read.

Development isn't going to happen in the near term without fossil fuels. Less developed nations aren't going to give up higher standards of living for the unproven benefits of reducing GHGs.

David Brooks on Shale Gas Opportunities

2011-11-07T06:21:00.000-08:00

David Brooks of the New York Times writes on the incredible opportunities represented by shale gas. Here's some of what he had to say:

John Rowe, the chief executive of the utility Exelon, which derives almost all its power from nuclear plants, says that shale gas is one of the most important energy revolutions of his lifetime. It’s a cliché word, Yergin told me, but the fracking innovation is game-changing. It transforms the energy marketplace. . . .

The U.S. now seems to possess a 100-year supply of natural gas, which is the cleanest of the fossil fuels. This cleaner, cheaper energy source is already replacing dirtier coal-fired plants. It could serve as the ideal bridge, Amy Jaffe of Rice University says, until renewable sources like wind and solar mature.

Already shale gas has produced more than half a million new jobs, not only in traditional areas like Texas but also in economically wounded places like western Pennsylvania and, soon, Ohio. If current trends continue, there are hundreds of thousands of new jobs to come.

A few weeks ago, I sat around with John Rowe, one of the most trusted people in the energy business, and listened to him talk enthusiastically about this windfall. He has no vested interest in this; indeed, his company might be hurt. But he knows how much shale gas could mean to America. It would be a crime if we squandered this blessing.

If only the rest of the NY Times writers could see it that clearly.

EPA Announces Plan For Studying Gas Well Fracking Effects

2011-11-04T06:08:00.000-07:00

EPA has announced its plan for studying the effects of gas well fracking. While there will be some interim release of information, it is interesting that the final report won't be issued until sometime in 2014. By that time, I predict that concerns about fracking largely will have disappeared.

WASHINGTON - The U.S. Environmental Protection Agency (EPA) today announced its final research plan on hydraulic fracturing. At the request of Congress, EPA is working to better understand potential impacts of hydraulic fracturing on drinking water resources. Natural gas plays a key role in our nation’s clean energy future and the Obama Administration is committed to ensuring that we continue to leverage this vital resource responsibly.

In March 2010, EPA announced its intention to conduct the study in response to a request from Congress. Since then, the agency has held a series of public meetings across the nation to receive input from states, industry, environmental and public health groups, and individual citizens. In addition, the study was reviewed by the Science Advisory Board (SAB), an independent panel of scientists, to ensure the agency conducted the research using a scientifically sound approach.

The initial research results and study findings will be released to the public in 2012. The final report will be delivered in 2014. To ensure that the study is complete and results are available to the public in a timely manner, EPA initiated some activities this summer that were supported by the SAB and provide a foundation for the full study.

The final study plan looks at the full cycle of water in hydraulic fracturing, from the acquisition of the water, through the mixing of chemicals and actual fracturing, to the post-fracturing stage, including the management of flowback and produced or used water as well as its ultimate treatment and disposal. Earlier this year, EPA announced its selection of locations for five retrospective and two prospective case studies.

This administration continues to take steps to ensure that we can rely on this abundant resource for decades to come, including taking steps to fully understand any impacts related to the development of this resource. This study is in line with the priorities identified in the president’s Blueprint for a Secure Energy Future, and is consistent with the Secretary of Energy Advisory Board recommendations on steps to support the safe development of natural gas resources.

More information: www.epa.gov/hydraulicfracturing

BEST Evidence Not So Good?

2011-10-30T10:46:00.000-07:00

Richard Muller, a well-respected physicist and former MacArthur Foundation grantee, put together BEST, the Berkeley Earth Surface Temperature project, to try to establish reliable temperature data sets that could be used to evaluate the extent of global warming. The idea was that at all parties in the debate over the cause of global warming could use the same sets of temperature data, even if they disagreed on how they should be interpreted.

Earlier this month Dr. Muller took the unusual step of publishing his results without going through any sort of peer-review process. The lack of peer-review doesn't really bother me, because an important (and public) project such as Dr. Muller was engaged in will be peer-reviewed eventually by any number of interested and talented professionals and amateurs. But in this case, he would have been well-advised to seek some sort of review before he published his initial reports.

The first opinions from the mainstream media were that the BEST findings settled the global warming debate by showing late 20th century warming. That, of course, would not be the case, since the warming that has occurred in the temperature record has not been widely rejected among skeptics. It is the cause of the warming, and whether it is a bad thing, that is at the heart of most skeptics' arguments.

Today we learn that Judith Curry, a well-respected climatologist and co-author of the BEST report, is taking Muller to task for his premature release of two of the four BEST reports. Steve McIntyre, who operates the Climate Audit website, has posted on the subject, and noted several problems with the BEST analysis. Mr. McIntyre also believes the data may confirm the end of the Little Ice Age, which in turn suggests the Medieval Warm Period occurred, a time during the Middle Ages when the world was warmer than today. Anthony Watts, who cooperated with Dr. Muller in evaluating the effect of urban heat islands on the temperature record, has objected to Muller using 60 years of data to compare with Watts' 30 years of data. Jeff Id notes that there is a significant error in the calculations Muller used. Whether these folks are right or wrong, Dr. Muller probably would have been well-advised to listen to them before going all-out with the press release first.

And to top it all off, the BEST data show that the last 10 years have shown no warming. That has seriously puzzled the climate alarmists, according to a report that was on Greenwire.

It will be interesting to see how this plays out.

Stucky Returns Mining NPDES Permit Appeal To Environmental Quality Board

2011-10-11T12:04:00.000-07:00

On April 27th I posted on the West Virginia Department of Environmental Protection's appeal to the Kanawha County Circuit Court of a decision of the Environmental Quality Board - "DEP Appeals Environmental Quality Board Decision Remanding Patriot Mining NPDES Permit." Judge Stucky heard the appeal and agreed with the DEP and Patriot Mining that the EQB failed to explain how the DEP was to establish numeric limits in the permit that would protect narrative water quality standards:

In order to comply with the EQB's Final Order, WVDEP would have to determine the
specific levels of conductivity, TDS, and sulfate that have reasonable potential to cause or
contribute to an excess of narrative criteria. WVDEP concedes that it is impossible to
establish a numeric benchmark that will ensure the protection of the narrative criteria.
Although the EQB commanded WVDEP to establish effluent limits for conductivity, TDS,
and sulfate, they failed to explain through what CWA mechanism it was regulating these
parameters, mention WVSCI, or explain a basis which to proceed. Additionally, while the
EQB rejected Respondent's proposed effluent limits, they provided no clear guidance on
how to contrive these effluent limits.

As a result, Judge Stucky remanded the case to the EQB to more fully explain its decision:

This Court ORDERS the following. This case is REMANDED with the following
directions: the EQB shall provide written supplemental findings detailing a reasoned and
articulate decision in the Final Order. Additionally, these findings should include guidance to
calculate threshold values for regulating conductivity, TDS, and sulfate.

You can see the decision here. Thanks to Jennifer Hughes, who handled the appeal for the DEP, and who forwarded the decision.

West Virginia DEP Issues General Permit For Pesticide Application

2011-10-11T07:41:00.000-07:00

Although the time for comment has passed, I thought this notice of issuance of a general permit for pesticide application was worth mentioning. Several years ago the Sixth Circuit decided that the application of pesticides (and herbicides) that could reach a water body constituted a discharge of pollutants through a point source, which means that an NPDES permit is required. The court reasoned that the pesticides were not intended to reach waters of the United States, and if they did they were pollutants at that point, and no longer products. As a result of that decision, EPA advised states that they needed to issue permits for pesticide application. Since pesticide spraying is so ubiquitous, many states, including West Virginia, have decided to issue a general permit allowing spraying under certain conditions that are specified in the general permit.

The Sixth Circuit decision that started this is National Cotton v. EPA, 553 F.3d 927 (6th Cir. 2009). Environmental and industry groups had challenged an EPA rule that exempted pesticide spraying from NPDES permitting. Challenges were filed in eleven circuit courts throughout the United States, and then consolidated in the Sixth Circuit.

Here is the general permit notice.

Public Notice No.: Pesticide General Permit

Public Notice Date: August 24, 2011

GENERAL WV/NPDES WATER POLLUTION CONTROL PERMIT WASTEWATER DISCHARGES FROM HIGHWAY OR PESTICIDE GENERAL PERMIT FOR POINT SOURCE DISCHARGES WV/NPDES PERMIT NO. WV0116645

The Division of Water and Waste Management is proposing to issue the General WV/NPDES Water Pollution Control Permit to regulate the discharge of wastewater into the waters of the State from the application of (1) biological pesticides or (2) chemical pesticides that leave a residue (hereinafter collectively “pesticides”), when the pesticide application is for one of the following pesticide use patterns:

1. Mosquito and Other Flying Insect Pest Control - to control public

health/nuisance and other flying insect pests that develop or are present during a portion of their life cycle in or above standing or flowing water.

Public health/nuisance and other flying insect pests in this use category include mosquitoes and black flies.

2. Aquatic Weed and Algae Control - to control weeds, algae, and

pathogens that are pests in water and at water’s edge, including ditches and/or canals.

3. Animal Pest Control - to control animal pests in water and at water’s

edge. Animal pests in this use category include fish, lampreys, insects, mollusks, and pathogens.

4. Forest Canopy Pest Control - application of a pesticide to a forest

canopy to control the population of a pest species (e.g., insect or pathogen) where, to target the pests effectively, a portion of the pesticide unavoidably will be applied over and deposited to water."

The General Permit will authorize the operation and maintenance of establishments engaged in pesticide applications or parts thereof, and the direct discharge of treated wastewater to the waters of the State. It is proposed that this General Permit be issued for a five (5) year term. This permit shall only be issued if EPA's final Pesticide General Permit is issued.

The Director of the Division of Water and Waste Management retains authority to require any owner/operator to apply for and obtain an individual WV/NPDES Permit. This authority will be exercised when the Director determines that such individual permit will better protect the receiving water.

The Draft Permit and Fact Sheet may be inspected by appointment between 8:00 a.m. and 4:00 p.m., Monday through Friday at the Department of Environmental Protection, Division of Water and Waste Management, Public Information Office, 57th Street SE, Charleston, WV 25304. Copies of the documents may be obtained from the Division at a nominal cost.

Any interested persons may submit written comments on the Draft Permit.

Comments will be accepted until September 23, 2011. They should be addressed

to:

Director, Division of Water and Waste Management Department of Environmental Protection

601 57th Street, SE

Charleston, WV 25304

Attention: Devereux, Lori K

Phone: (304) 926-0499, Extension 1065

Fax: (304) 926-0463

E mail: Lori.K.Devereux@wv.gov

All comments received within this period will be considered prior to acting on the Draft Permit. Correspondence should include the name, address, and telephone number of the writer; and a concise statement of the nature of the issues being raised.

Requests for additional information should be directed to Lori Devereux at (304) 926-0499, Extension 1057.

TMDLs Developed For Elk and Lower Kanawha Rivers

2011-10-11T07:09:00.000-07:00

The DEP is accepting comment on the Total Maximum Daily Loads that have been prepared for the Elk River and the Lower Kanawha River. The following is the aannouncement for the Lower Kanawha, but a similar announcement was made for the Elk River, except that the public meeting was held Sept 27 at Elkview Middle School.

The West Virginia Department of Environmental Protection (DEP) is announcing a comment period on proposed water quality improvement plans for selected streams in the Lower Kanawha River Watershed, located in southwestern West Virginia.

The DEP welcomes input and comments from the public on the proposed plan known as a Total Maximum Daily Load (TMDL). The comment period began Sept. 12 and extends through Oct. 14, inclusively.

A TMDL is defined as the amount of a pollutant which can be discharged into a stream and still allow the stream to meet water quality standards. Each of the streams under TMDL development has been identified as violating state water quality standards. The pollutants of concern are pH, total iron, dissolved aluminum, dissolved oxygen and fecal coliform. In addition, some streams have also been identified as having impairments to biological integrity.

A public meeting is scheduled for Sept. 28 to present a general discussion of the draft TMDLs and to answer questions regarding the proposed TMDLs. The meeting is scheduled for 6:30 p.m. at Winfield High School in Winfield, W.Va.

Written comments on the proposed plans may be submitted by U.S. Mail, electronic mail, and fax. The preferred form for comment submissions is e-mail or disk in order to expedite the review and response process. Written comments should be postmarked no later than Oct. 14, 2011. Comments should be sent to:

Steve Young – Lower Kanawha TMDLs

West Virginia Department of Environmental Protection

601 57th Street

Charleston, WV 25304

E-mail: stephen.a.young@wv.gov

The TMDLs are available for review on DEP’s webpage:

http://www.dep.wv.gov/WWE/watershed/TMDL/Pages/default.aspx

CDs may also be obtained by calling Steve Young at (304) 926-0495, TTY 711

(304) 558-2751.

If you go to the DEP website, you'll see that TMDLs were done for the following constituents:

Elk
Stream name		Date approved	Pollutants
Draft Elk TMDL Report
Draft TMDL presentation from September 27, 2011 - Elkview Middle School
	Fecal allocations spreadsheet
	Metals and pH allocations spreadsheet
	Selenium allocations spreadsheet
Elk River TMDL and tributaries		2001	Al, Fe, Pb
	Decision rationale	2001	Al, Fe, Pb

Lower Kanawha
Stream name		Date approved	Pollutants
Draft Lower Kanawha TMDL Report
Draft TMDL presentation - September 28, 2011 - Winfield High School
	Fecal allocations spreadsheet
	Metals and pH allocations spreadsheet
Lower Kanawha approved TMDL report		2006
Heizer Creek appendix
Tupper Creek appendix
Twomile Creek appendix
Lower Kanawha fecal coliform allocations spreadsheets
Lower Kanawha metals allocations spreadsheets
Lower Kanawha sediment allocations spreadsheets
Lower Kanawha dissolved aluminum addendum
Lower Kanawha dissolved aluminum final addendum
Lower Kanawha decision rationale
Lower Kanawha EPA approval letter
Flat Fork of Pocatalico River		2001	PCBs
	Decision rationale	2001	PCBs
Kanawha River, Armor Creek and Pocatalico River		2000	Dioxin
Ridenour Lake		1999	Al, Fe, Nutrients, Sediment
	Decision rationale	1999	Al, Fe, Nutrients, Sediment

Methane Farming?

2011-09-30T05:08:00.000-07:00

There is news from Wyoming of two companies that are seeking approval for "methane farming", which involves injecting several types of microbes into coal seams. The microbes convert the coal to methane gas. At a time when minable coal seams are getting harder to find, this may be good news for Appalachia. There is lots of coal in West Virginia and elsewhere that is unrecoverable because it is in seams that are too thin to mine underground, and are under too much cover to strip mine economically. The Casper Tribune reports on the two processes:

Two companies, Luca Technologies and Ciris Energy Inc., are preparing to employ the process in Wyoming. Both use processes that accelerate methane production by microbes that feed on coal beds. But there are differences between the two: While Luca pumps nutrients underground to the gas-producing microbes, Ciris uses a process that breaks down coal into a solution for easy feeding by the microbes. Unlike Luca, Ciris plans to use an above-ground facility.

Business Week also had a report on it.

EPA Inspector General Criticizes EPA Climate Change Endangerment Finding Procedures

2011-09-28T15:38:00.000-07:00

The Inspector General of the EPA has just issued a report concluding that EPA did not follow its own guidelines for reviewing data before it concluded that that greenhouse gases pose an environmental danger, referred to as the Endangerment Finding. The following sentence is taken from the AP and Washington Post:

WASHINGTON — The Obama administration cut corners before concluding that climate-change pollution can endanger human health, a key finding underpinning costly new regulations, an internal government watchdog said Wednesday.

The Endangerment Finding was the foundation of all the GHG regulations that have followed its issuance in December of 2009. EPA has been criticized for failing to evaluate the Intergovermental Panel on Climate Change report that was the primary basis for EPA's actions, and this report by the IG seems to confirm those complaints. If an objective analysis of the IPCC report is performed, it is not likely to stand close scrutiny in light of the evidence that has mounted against anthropogenic global warming since that report was issued.

Peak Oil Is Often Predicted, But Hasn't Arrived

2011-09-21T09:05:00.000-07:00

I remember when the natural gas crisis hit in the late 1970s and we stayed home from school one winter for an extended period because natural gas was being saved for "critical users" such as hospitals and manufacturing. Gas supplies were too low, there weren't any large reserves remaining, and we were told that we should get used to living in the cold.

Then they deregulated natural gas prices, and an amazing thing happened. As prices rose, gas exploration and drilling increased. As they increased, new reserves were found that could be profitably exploited. Recently we've seen this trend continue, as a method has developed for accessing the huge amounts of natural gas, and some petroleum, located in tight shale formations.

Daniel Yergin writes on this phenomenon in a recent article in the Wall Street Journal, explaining why peak oil never seems to arrive. There have been predictions since the late 1800's that we would run out of oil, and they've always been wrong. As he remarks:

Things don't stand still in the energy industry. With the passage of time, unconventional sources of oil, in all their variety, become a familiar part of the world's petroleum supply. They help to explain why the plateau continues to recede into the horizon—and why, on a global view, Hubbert's Peak is still not in sight.

Former Mine Sites Prove Valuable

2011-09-21T06:10:00.000-07:00

New ways of using mountaintop removal sites keep popping up. The Charleston Gazette's Rick Steelhammer reports on a former mine site that is being used to test armored troop carriers that will be sent to Afghanistan. Another use is to put roads in the areas the mines were located, as Kentucky is doing with Route 460 and West Virginia is doing with the King Coal Highway. The roads will not only make good use of the disturbed land, it is hoped they will also entice people to build homes out of the floodplain, where many people in southern West Virginia live.

Obama Administration Puts GHG Regulation on Hold

2011-09-16T11:06:00.000-07:00

I haven't had a chance to look at this, but the Wall Street Journal reports that the Obama Administration is putting greenhouse gas (GHG) regulation on hold. A New York Times blog entry on the story is here. There hasn't been any announcement on when the regulations will be forthcoming.

DEP Schedules Youth Environmental Conference

2011-09-13T08:01:00.000-07:00

The West Virginia Department of Environmental Protection will sponsor its 36th annual Youth Environmental Conference, Sept. 30-Oct. 2, at Twin Falls Resort State Park, near Mullens. The deadline to register for the conference is Sept. 15.

The conference is open to members of the DEP’s Youth Environmental Program, ages 13 to 18. A limited number of scholarships are available on a first-come, first-serve

basis.

Environmental workshops are scheduled for Friday evening of the conference. Conference participants also will visit the Raleigh County Solid Waste Authority’s state-of-the-art landfill and the Beckley Exhibition Coal Mine. Other activities include a recycling contest, group reports and a Sunday morning motivational program.

For information on how your youth group can become a member of the Youth Environmental Program and take part in the Youth Environmental Conference, please contact Diana Haid at 304-926-0499, Ext. 1114 or email diana.k.haid@wv.gov .

Licensed Remediation Specialist Exam Set for September 21.

2011-09-07T10:31:00.000-07:00

In order to conduct a brownfield clean up in West Virginia under the Voluntary Remediation and Redevelopment Act, one needs to have the remediation process planned and overseen by a Licensed Remediation Specialist (LRS). In order to become a LRS one must pass the exam, which has been scheduled for September 21st in South Charleston.

The rule governing VRRA clean ups, which is the subject of the test, is found at 60 CSR 3. It includes the general remediation agreement and default clean up levels. The DEP's notice follows:

The West Virginia Department of Environmental Protection’s next examination to certify licensed remediation specialists is scheduled from 1:30 to 3:30 p.m., on Sept.

21, at the Marshall Graduate College in South Charleston.

The exam will be given in Room 213 of the Robert C. Byrd Academic Center Building, 100 Angus E. Peyton Dr., South Charleston.

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

A bachelor’s degree in an approved scientific field and at least six years of relevant professional experience, or a high school diploma and 10 years of relevant professional experience, are needed to qualify for the exam. In either case, at least one year of supervisory or project management experience is needed.

To take the exam, register online at http://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 Sept. 9.

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 state 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.

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Charleston Meeting Fine Particulate Air Standard

2011-09-03T09:41:00.000-07:00

A National Ambient Air Quality Standard (NAAQS) has been set for PM2.5 (dust that is smaller than 2.5 microns in size) in order to protect human health. Small particles of dust are more likely to be inhaled deeper into the lungs. "Under EPA regulations in 40 CFR part 50, section 50.13 and in accordance with Appendix N, the 24-hour primary and secondary PM2.5 standards are met when the 98th percentile 24-hour concentration is less than or equal to 35 [micro]g/m\3\." EPA has announced that Charleston is in compliance with the NAAQS for fine particulate, which would relieve the WV DEP from having to file an attainment demonstration and other action. Here's the Federal Register notice, from which the following was excerpted:
SUMMARY: EPA is proposing to determine that the Charleston, West Virginia nonattainment area for the 2006 fine particulate matter (PM2.5) National Ambient Air Quality Standard (NAAQS) has clean data for the 24-hour 2006 PM2.5 NAAQS. This proposed determination is based upon quality assured, quality controlled, and certified ambient air monitoring data showing that this area has monitored attainment of the 2006 PM2.5 NAAQS based on the 2007-2009 data and data available to date for 2010 in EPA's Air Quality System (AQS) database that show the area continues to attain. If this proposed determination is made final, the requirements for this area to submit an attainment demonstration, associated reasonably available control measures, a reasonable further progress plan, contingency measures, and other planning State Implementation Plans (SIPs) related to attainment of the standard shall be suspended for so long as the area continues to meet the 24-hour 2006 PM2.5 NAAQS. DATES: Written comments must be received on or before September 19, 2011.

President Obama Withdraws Ozone NAAQS

2011-09-03T07:44:00.000-07:00

President Obama has withdrawn EPA's proposal to lower the National Ambient Air Quality Standard(NAAQS) proposed for ground level ozone (smog). By way of summary, Politico reports:

The rest of the Politico report explains the political pressures that led to the president's decision to forego a significant reduction of the standard in an attempt to preserve jobs, and some potential ramifications.

In January 2010, the EPA proposed to set the national health-based standard for ozone between 60 and 70 parts per billion when averaged over an eight-hour period. The Bush administration tightened the ozone limits from 84 ppb to 75 ppb in 2008, despite scientific advisers' recommendations to issue a standard between 60 ppb and 70 ppb.

You can find more about the ozone standard here. The history of EPA's attempt to decrease the standard can be found here. The West Virginia nonattainment designations under the 2008 75 ppb standard (Charleston, Huntington/Ashland, Parkersburg/Marietta, Steubenville/Weirton and Wheeling) are here, and the designations under the 1997 standard are here.

The Presiden'ts statement:

Over the last two and half years, my administration, under the leadership of EPA Administrator Lisa Jackson, has taken some of the strongest actions since the enactment of the Clean Air Act four decades ago to protect our environment and the health of our families from air pollution. From reducing mercury and other toxic air pollution from outdated power plants to doubling the fuel efficiency of our cars and trucks, the historic steps we’ve taken will save tens of thousands of lives each year, remove over a billion tons of pollution from our air, and produce hundreds of billions of dollars in benefits for the American people.

At the same time, I have continued to underscore the importance of reducing regulatory burdens and regulatory uncertainty, particularly as our economy continues to recover. With that in mind, and after careful consideration, I have requested that Administrator Jackson withdraw the draft Ozone National Ambient Air Quality Standards at this time. Work is already underway to update a 2006 review of the science that will result in the reconsideration of the ozone standard in 2013. Ultimately, I did not support asking state and local governments to begin implementing a new standard that will soon be reconsidered.

I want to be clear: my commitment and the commitment of my administration to protecting public health and the environment is unwavering. I will continue to stand with the hardworking men and women at the EPA as they strive every day to hold polluters accountable and protect our families from harmful pollution. And my administration will continue to vigorously oppose efforts to weaken EPA’s authority under the Clean Air Act or dismantle the progress we have made.

Brownfields Conference in Morgantown September 14-15

2011-09-02T07:40:00.000-07:00

This is a very useful conference covering all aspects of brownfields development in West Virginia. My colleague Rob Lannan and I have participated and found it helpful.

Morgantown’s Waterfront Place Hotel will be the site of the annual West Virginia Brownfields Conference, Sept. 14-15.

The conference is hosted each year by the West Virginia Brownfields Assistance Centers at Marshall and West Virginia universities, in cooperation with the West Virginia Department of Environmental Protection, the West Virginia Development Office and the Air and Waste Management Association.

The U.S. Environmental Protection Agency defines a brownfield as “real property, the expansion, redevelopment, or reuse of which may be complicated by the presence or potential presence of a hazardous substance, pollutant, or contaminant.”

Examples of brownfields include vacant warehouses and factories; abandoned railroads; former service stations; landfills; parking lots; and former coal mining sites.

Brownfields are often transformed into new real estate for housing or commercial use or for green space, on which new parks and recreation facilities can be constructed.

Among the topics covered at this year’s conference will be financing options for brownfield development; understanding site assessments; public-private partnerships; and ways to make your community standout. There will also be training sessions on topics such as grant writing.

The keynote address will be delivered by West Virginia Secretary of Commerce Keith Burdette.

The state Brownfields Assistance Centers at Marshall and WVU were established in 2005 to help West Virginia communities identify brownfields, formulate plans to redevelop properties and to assist in securing money for projects. Several federal agencies are funding sources for brownfield projects.

To register for this year’s conference go to www.wvbrownfields.org or call for more information at 304-

293-6984 or 304-696-5456.

Is Fracking Fluid Safe To Drink?

2011-09-01T06:28:00.000-07:00

Is fracking fluid (the water and chemical mixture that's injected underground at great pressure to break apart rock formations) safe to drink? According to the Huffington Post, the folks at Halliburton think it is. I had to laugh, though - the Halliburton CEO didn't take a swig himself, but reportedly called another executive up to the podium to do the deed.

During a keynote lunch speech at the conference presented by the Colorado Oil and Gas Association, Halliburton Co. CEO Dave Lesar talked about addressing public concerns about hydraulic fracturing, which extracts natural gas by blasting a mix of water, chemicals and sand underground.

He raised a container of Halliburton's new fracking fluid made from materials sourced from the food industry, then called up a fellow executive to demonstrate how safe it was by drinking it, according to two attendees.

Sign Up for Adopt-A-Highway

2011-08-30T06:09:00.001-07:00

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

2011-08-29T06:43:00.000-07:00

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

2011-08-24T12:37:00.000-07:00

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

2011-08-24T08:45:00.000-07:00

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

Coal Dams Will Be Inspected for Earthquake Damage

2011-08-23T14:37:00.001-07:00

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

2011-08-23T14:05:00.000-07:00

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

2011-08-23T06:08:00.001-07:00

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

2011-08-22T14:05:00.000-07:00

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

2011-08-11T05:22:00.000-07:00

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

2011-08-05T06:45:00.000-07:00

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 CO₂streams 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 CO₂streams, 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 CO₂streams 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 CO₂streams, and Safe Drinking Water Act regulations that ensure the wells used for geologic sequestration of CO₂are 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

2011-08-03T14:16:00.000-07:00

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

2011-08-02T12:58:00.000-07:00

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

2011-08-02T09:50:00.000-07:00

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

2011-08-02T08:08:00.000-07:00

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.

Clean Water Cooperative Federalism Act of 2011 Summarized

2011-07-22T11:10:00.000-07:00

The following summary of the Clean Water Cooperative Federalism Act was written by the Congressional Research Service, a nonpartisan arm of the Library of Congress. This is the legislation being advanced by House Republicans in response to interpretations of state water quality standards that are being advanced by EPA in Florida (where EPA is requiring development of nutrient standards) and West Virginia (where EPA has recently finalized a guidance interpreting West Virginia's narrative water quality standard for toxicity).

7/8/2011--Reported to House amended. Clean Water Cooperative Federalism Act of 2011 - Amends the Federal Water Pollution Control Act (commonly known as the Clean Water Act) to prohibit the Administrator of the Environmental Protection Agency (EPA) from: (1) promulgating a revised or new water quality standard for a pollutant when the Administrator has approved a state water quality standard for such pollutant unless the state concurs with the Administrator's determination that the revised or new standard is necessary to meet the requirements of such Act; (2) taking action to supersede a state's determination that a discharge will comply with effluent limitations, water quality standards, controls on the discharge of pollutants, and toxic and pretreatment effluent standards under such Act; (3) withdrawing approval of a state program under the National Pollution Discharge Elimination System (NPDES), limiting federal financial assistance for a state NPDES program, or objecting to the issuance of a NPDES permit by a state on the basis that the Administrator disagrees with the state regarding the implementation of an approved water quality standard or the implementation of any federal guidance that directs the interpretation of such standard; and (4) prohibiting the specification of any defined area as a disposal site for the discharge of dredged or fill material into navigable waters and denying or restricting the use of such area as a disposal site in a permit if the state where the discharge originates does not concur with the Administrator's determination that the discharge will result in an unacceptable adverse effect on municipal water supplies, shellfish beds, and fishery areas. Shortens the period in which the Director of the United States Fish and Wildlife Service must submit comments with respect to a general dredge and fill permit application. Requires the Administrator and other agencies to submit comments on an application for a general permit or a permit to discharge into navigable waters at specified disposal sites within 30 days (or 60 days if additional time is requested) after the date of receipt of such application. Applies this Act to actions taken on or after this Act's date of enactment, including actions taken with respect to permit applications that are pending or revised or new standards that are being promulgated.

EPA Finalizes Water Quality Guidance for Appalachian Mining

2011-07-22T07:19:00.000-07:00

EPA has finalized its guidance on surface coal mining. The centerpiece of the guidance is its interpretation of state narrative water quality standards to limit discharges from mine sites. Narrative water quality standards are found in Section 3 of 46 CSR 2, and prohibit conditions like excessive sediment, color, toxicity, and other limitations that aren't assigned a precise numeric limitation. For example, iron can't be present in most streams at levels that exceed 1.5 mg/L, but toxicity is more difficult to define in those terms.

This guidance is the impetus behind attempts by the House to prevent EPA from interpreting state water quality standards in a manner different than states.

Links to the guidance and EPA studies are at the bottom of EPA's press release, which follows.

WASHINGTON — The U.S. Environmental Protection Agency (EPA) today released final guidance on Appalachian surface coal mining, designed to ensure more consistent, effective, and timely review of surface coal mining permits under the Clean Water Act and other statutes. The guidance, which replaces the interim-final guidance issued by EPA on April 1, 2010, is based on the best-available science and incorporates input and feedback from over 60,000 comments received from the public and key stakeholders. By providing EPA’s regional offices with the latest information on existing legal requirements, the guidance enables them to work together with states, the U.S. Army Corps of Engineers, mining companies, and the public towards a balanced approach that protects communities from harmful pollution associated with coal mining. EPA will apply the guidance flexibly, taking into account site-specific information and additional science to arrive at the best decisions on a case-by-case basis.

The science forming the basis for the interim-final guidance was also successfully applied in a number of mining decisions, including the Hobet 45 permit in West Virginia where EPA worked closely with a company to eliminate nearly 50 percent of their stream impacts, reduce contamination and lower mining costs. Successful outcomes resulting from the Corps' Coal Mac-Pine Creek permit decision also provide evidence that the practices in the interim guidance are both feasible and effective.

“Under this guidance, EPA will continue to work with other federal agencies, states, local communities, and companies to design mining operations that adequately protect our nation’s waters and people's health,” said Nancy Stoner, acting assistant administrator for EPA’s Office of Water. “We have a responsibility under the law to protect water quality and this guidance allows EPA to work with companies to meet that goal, based on the best science.”

EPA’s final guidance reflects significantly enhanced science, extensive public comment and experience working with federal and state agencies and mining companies. It is based on improved, peer-reviewed science on impacts of mountaintop mining; extensive public and stakeholder input; and, lessons learned from the implementation of the interim guidance. The final guidance, like the interim guidance, is not a rule and is not binding legally or in practice.
EPA is committed to working with coal companies and stakeholders to reduce and prevent harm to water quality and human health and over the past two and a half years, EPA has built a strong foundation, working with federal and state agencies and mining companies to significantly reduce impacts to the environment.

• In January 2010, EPA worked with the Corps on the Hobet 45 permit in West Virginia to reduce stream impacts by almost 50 percent and minimize mine runoff into surface waters.

• In June 2010, EPA worked to ensure that the permit issued for the Pine Creek mine included an enforceable trigger for protecting downstream water quality and ensuring that the overall mining operation could protect water quality.

• In July 2011, EPA worked with Mid-Vol, Inc. and the West Virginia Department of Environmental Protection to develop a Clean Water Act Section 402 permit that includes limits on ionic pollution to protect water quality.

Mountaintop mining is a form of surface coal mining in which explosives are used to access coal seams, generating large volumes of waste that bury adjacent streams. The resulting waste that then fills valleys and streams can significantly compromise water quality, often causing permanent damage to ecosystems and rendering streams unfit for drinking, fishing, and swimming. It is estimated that almost 2,000 miles of Appalachian headwater streams have been buried by mountaintop coal mining.

To view the final guidance: http://www.epa.gov/owow/wetlands/guidance/mining.html

To view a copy of EPA’s Final Conductivity Benchmark Report as well as the Science Advisory Board’s final review: http://cfpub.epa.gov/ncea/cfm/recordisplay.cfm?deid=233809

EPA Insists on Review of Environmental Quality Board Orders

2011-07-21T14:19:00.000-07:00

EPA has advised the West Virginia Department of Environmental Protection and the Environmental Quality Board that it (EPA) expects to review all decisions of the Board that modify a NPDES permit. The July 13, 2011 letter from John Capacasa, EPA Region 3 Water Protection Division, references the 1982 Memorandum of Agreement (MOA) between EPA and the WV DNR (the DEP’s predecessor) in which WV assumed authority for the NPDES permit program. In the MOA, EPA waives its right to review most NPDES permits that are issued or modified by the DEP, except for certain types of permits. Among those permits EPA wants to review are those that are modified by the EQB. Mr. Capacasa has asked that all permits that are modified by an EQB order be sent to it for review. “To implement the provision in the MOA for review of permits resulting from appeals to the EQB and prevent any additional delay in permit issuance, we request that WVDEP and the EQB use the following procedure. Where resolution of the appeal would result in a permit that differs from the original draft permit, WVDEP will submit the new draft or proposed permit to EPA for review as provided in the MOA. WVDEP should include with the new draft or proposed permit any orders from the EQB relating to the permit.”

The MOA (609955) and letter from Capacasa (609946) are attached here for those who would like to review them. The May 25, 1982 amendment to the MOA that is referred to in the Capacasa letter is in the back of the MOA.

Technically speaking, there is no authority for the EQB to remand the permit to the DEP for modification under the statute (W. Va. Code 22B-1-7(g)(1)). Therefore, one wonders whether the DEP would even have jurisdiction to submit the permit and Board order to EPA for its review and approval. This process of requiring EPA review of Board orders raises a host of interesting questions, which may be answered by an appeal recently taken by the DEP of the decision of the Air Quality Board that remanded a permit for modification. The DEP took the position in that appeal that the Air Quality Board, whose review powers are similar to the EQB’s, cannot remand a permit to the Division of Air Quality in order to have the DAQ modify the permit.

Thanks to Allyn Turner, who acquired the letter.

Elk to Return to West Virginia?

2011-07-19T05:30:00.000-07:00

It appears that mountaintop mining sites provide prime habitat for elk in Kentucky. There is some question as to whether elk herds that were established in eastern Kentucky might expand into western West Virginia, and how the WV Division of Natural Resources might manage that new species. The story is here from Metronews.

Coal Ash Bill Clears House Committee

2011-07-17T18:26:00.000-07:00

First-time Congressman Dave McKinley has been busy. He has been a vocal supporter of recent House action to limit the EPA's ability to change or interpret state water quality standards, and he has also sponsored legislation to prohibit treating coal ash as a hazardous waste. Vicki Smith of Bloomberg Business Week reports that:

The Coal Residuals Reuse and Management Act is the first bill from West Virginia's freshman Republican, Rep. David McKinley. It passed out of the Energy and Commerce Committee on a vote of 35-12 Wednesday night [June 21], with support from six Democrats.

Coal ash is a byproduct of coal burning that is used in structural fills and concrete production, among other things. Treating it as a hazardous waste, would effectively eliminate its reuse, and treating it as a special Subtitle D waste would also impose onerous restrictions on use of coal ash.

This bill has a good chance of appproval by the House, but faces an uphill climb in the Senate, and probable veto by President Obama. It is an attempt to force EPA's hand on coal ash regulation, as EPA is still trying to decide whether to regulate coal ash as a hazardous waste. Pam Casey of the State Journal explains how the bill would prevent regulation of coal ash as a hazardous waste or a special waste.

Alternative Energy Not Cost or Maintenance Free

2011-07-06T06:09:00.000-07:00

Developing cost-effective alternative energy is a national goal, as it should be. Technology will continue to develop new ways of harnessing the wind, sun, earth and water to produce power. However, some seem to have an idealistic view of what can be done with wind and solar, which at this time are too intermittent, and provide too little electricity, to power the grid of a modern economy. Such alternative energy systems do not provide free power once they are installed. There is maintenance of the system, and degradation of the components over time.

I thought this picture of a solar facility that is only a year or so old was illustrative of the ongoing costs associated with alternative energy sources. It's not enough to simply build the system and reap free power.

You can see a longer explanation at Watts Up With That website, here. This is how the blog entry starts:

German solar skeptic website SOLARKRITIK.DE here provides the background on the rundown, weed-covered solar facility in former communist (and now “green”) East Germany, which I presented in my last post here.

It’s much worse than we thought. The story behind the above photo and the project itself appears here at the online Leipziger Volkszeitung newspaper. The facility is sprawled over an area of 20 acres. The Leipziger Volkszeitung newspaper wrote just before the facility went into operation:
More here

West Virginia DEP Holds Water Quality Standards Meeting

2011-07-05T07:58:00.000-07:00

The DEP Division of Water and Waste Management held its quarterly meeting to discuss water quality standards on June 30, 2011. Kevin Coyne, Assistant Director DWWM, led the discussion.

John Wirts reported on water data reporting, although I missed the first half of his presentation. (John has now been promoted to Pat Campbell’s old job and is now managing the Watershed Assessment Branch. Pat Campbell is now Deputy Director.) He said that recent data from DEP monitoring is not in STORET (Storage and Retrieval Data Warehouse http://www.epa.gov/storet/ ), which is the national data repository. Also, state benthic data is not found on STORET.

Jason Heath of the Ohio River Water Sanitation Compact (ORSANCO) talked about the changes that have been recommended by the public for changes to the Pollution Control Standards for the Ohio River, which ORSANCO Commissioners will consider this fall:

Selenium – if EPA finalizes its revised criteria for selenium, which at one time was going to be based on fish body burden, ORSANCO may adopt it.

Bromides – Bromides contribute to TMH formation and are a problem for public water suppliers. High levels of bromides have been found in some Pennsylvania tributaries.

Temperature – review of information on aquatic life indicate minor adjustments to the criteria are needed. In addition, there have been implementation questions (how temperature limits are written into permits) and there is a question as to whether maximum temperatures are required for human health criteria.

Design flow - it is not always clear under what river flow conditions certain water quality criteria apply. Changes may be made to clarify design flow for all criteria.

Ammonia – new criteria may be required for protection of certain mussel species. However, a proposed 1 mg/l for discharge would be more stringent for much of the year.

Nutrients - developing nutrient (e.g., nitrogen and phosphorus) criteria would be a 10 year process, with no resolution in sight. ORSANCO is currently discussing new approaches to nutrient criteria development.

Mercury – the current criterion of 12 parts per trillion may not be necessary since the adoption of a fish tissue level of .3 mg/kg was adopted. ORSANCO is forming a special work group to consider that change.

Manganese – the secondary MCL is 50 ug/l, but there is some problem with “black water” at 20 ug/l. Treatment for manganese sometimes causes problem in treatment for bromides.

Formal proposal of changes to ORSANCO’s Pollution Control Standards will be made around February of 2012, with public comment through the Spring of 2012.

In other activity, at its June meeting the ORSANCO Commission adopted a TDS limit of 500 mg/L at the intake of a public water supply, but it is not being currently applied because there is a question as to whether a proper vote was taken. In addition, the Commission is working on a procedure for evaluating variance requests.

Following the presentation by Mr. Heath, Dave Flannery explained a situation that has arisen at a First Energy (Mon Power) power plant that discharges to Daugherty Run. The permit writer has assumed that the Category A use (public water supply) applies on that stream, whereas the West Virginia water quality standards only require the application of the Category B (aquatic life protection) and Category C (water contact recreation) uses. First Energy is asking that the DEP apply the water quality standards as written, since Daugherty Run is too small to be a public water supply, and in any event the company owns the property on either side, so no one could introduce a water withdrawal pipe. First Energy also had concerns about the Category C arsenic criterion of 10 ug/l, which is more stringent than any of our neighboring states. In response, Mike Becher, the lawyer representing plaintiffs who have sued to prevent the relief requested by First Energy, explained that they don’t want to see the changes made, which they believe would degrade the stream.

The next quarterly meeting will be held sometime in September.

McElwee Writes Book on Chinese Environmental Law

2011-07-04T06:37:00.000-07:00

There was a great article by Paul Nyden in Sunday's paper about Charles McElwee II, a Charleston native, who has written a book about environmental law in China. Mr. Nyden even got James Fallows to comment on the book. You can find the article here.

A minor correction, though - his father is one of the founders of my firm, Robinson & McElwee, but he is not a partner. He serves as of counsel, and is still a legal juggernaut. Charles II's brother, Doug McElwee, is a member of Robinson & McElwee, and is one of the managing members of the firm. Doug is also one of the premier title attorneys in the state.

US Supreme Court to Consider Right to Challenge Wetland Determinations

2011-06-29T06:35:00.000-07:00

Richard Frank writes in Berkeley Law School's Environmental Planet blog about a case that the US Supreme Court has decided to hear next term, Sackett v. U.S. Environmental Protection Agency, No. 10-1062, that could have ramifications for developers everywhere. He sets up the case this way:

Lawrence Hurley has this at Greenwire about the case.

The Sacketts filled in a portion of their lot near Priest Lake, Idaho, in preparation for building a house on the property. EPA issued an administrative compliance order against the Sacketts, alleging that the parcel is a wetland subject to the CWA, and that the Sacketts violated the Act by filling their property without first obtaining a permit under CWA section 404. EPA’s compliance order directed the Sacketts to restore the property to its original condition, or else be subject to monetary penalties under the Act.
The Sacketts unsuccessfully sought an administrative hearing before EPA to challenge the agency’s finding that their property is a wetland subject to CWA permitting requirements. They then sued in federal court, claiming that EPA’s issuance of the compliance order was both subject to judicial review and factually erroneous; the absence of such review, argued the Sacketts, violates the Administrative Procedure Act as well as their constitutional right to due process.

The Sackett's problem is one that is seen everywhere, but particularly in wetlands cases. The Corps of Engineers, or EPA, or the state, makes a determination that a certain location is a wetland or some other protected class of property, and the property owners have no opportunity to challenge that decision on the merits. They must wait until an enforcement action is brought against them in order to challenge the underlying determination.

The difference between a civil or administrative challenge to a wetland determination, and an enforcement action, is huge. Once an enforcement action is brought, the penalty sought will be significant fines and/or jail time. Property owners who are willing to challenge the underlying determination, when the cost of being wrong will be the cost of returning property to its original state or paying for mitigation, may not be willing to risk jail time. The result is that property owners forgo legitimate objections to wetland determinations, because of the huge cost of potentially being wrong.

The lower federal courts sided with EPA. Here's hoping the Supreme Court will even the playing field by allowing legal challenges to wetland determinations before enforcement actions are brought.

DEP to Hold Quarterly Water Quality Standards Meeting

2011-06-28T05:44:00.000-07:00

The DEP will be holding its quarterly meeting to discuss water quality stanards on June 30 from 1 to 3 pm. This is a good opportunity for anyone with a concern about water quality standards to ask questions of Scott Mandirola, Kevin Coyne, and others who are in charge of directing the development of water quality standards.

There are no rulemaking changes proposed this year, and so it will likely be a short meeting.

US Supreme Court Rejects States' Greenhouse Gas Lawsuit

2011-06-21T06:43:00.000-07:00

In an 8-0 decision in American Electric Power v. Connecticut, written by Justice Ginsburg, the US Supreme Court yesterday rejected a lawsuit by states and NGOs against power companies that sought to limit the power generators' greenhouse gas (GHG) emissions. The states argued that the power companies were contributing to global warming, which constituted a nuisance that was affecting the states and their citizens. An explanation of the decision from the Los Angeles Times is found here. SCOTUSblog, which should be everyone's first stop when considering Supreme Court deicisons, has this analysis from Lyle Denniston.

The Court found that the Clean Air Act left no room for regulation of GHGs through nuisance actions, and also noted the impracticality of judges trying, on a case-by-case basis, to limit GHG emissions. But anyone who thinks that this case is a clear victory for GHG emitters would be mistaken. The Court did not reject limits on GHGs, it merely handed GHG regulation back to EPA. If EPA doesn't act, or doesn't limit GHGs as the states hope, they can be right back in court, as summarized int he Court's syllabus:

The Act also provides multiple avenues for enforcement. If EPA does not set emissions limits for a particular pollutant or source of pollution, States and private parties may petition for a rulemaking on the matter, and EPA’s response will be reviewable in federal court. See §7607(b)(1).The Act itself thus provides a means to seek limits on emissions ofcarbon dioxide from domestic power plants—the same relief the plaintiffs seek by invoking federal common law. There is no room for a parallel track. Pp. 9–11.

This decision puts EPA in a strong position for pushing ahead with its plans for regulating GHGs. EPA is certain to point out to Congress that if EPA does nothing, states will be free to petition for rulemaking, and perhaps renew their nuisance actions, on the ground that there is no federal preemption of GHG regulation. Unless Congress takes GHG regulation away from EPA, which appears unlikely at this time, EPA will continue to implement its Tailoring Rule and other GHG initiatives that are imposing limits on emissions of CO2 and other GHGs from large sources. Whether EPA can proceed on that course will be determined by lawsuits brought by states and businesses against EPA, attacking the Tailoring Rule and the Endangerment Finding, because those EPA initiatives form the basis for action on GHGs.

Golden Algae Return to Dunkard Creek Area

2011-06-20T10:14:00.000-07:00

This notice comes from the West Virginia DEP:

The Pennsylvania and West Virginia Departments of Environmental Protection have begun sampling and monitoring ponds and streams in the Dunkard Creek area after sampling found golden algae in a privately owned pond in Pennsylvania.

Golden algae was determined to be the cause of a fish kill in Dunkard Creek in the fall of 2009.

The pond is located just north of the West Virginia and Pennsylvania state line, downstream from the town of Blacksville. The discovery was made by staff of CONSOL Energy during routine monitoring and sampling.

CONSOL Energy reported its findings June 9 to the DEP in both states, which immediately sent staff to the area to collect samples from the pond and various sites along Dunkard Creek. The samples were sent to various experts with extensive experience studying algae. The departments are awaiting the results. On Tuesday, June 14, WV DEP staff flew over the area to see if they could spot any other water bodies with discoloration and target them for sampling.

"We are still very early in this process, and there is no evidence that the algae is having a toxic effect in the pond at this time," said Scott Mandirola, director of Water and Waste Management for WV DEP. "We are asking residents to be aware of this discovery and look for discoloration in their private ponds and area streams."

"Ever since this discovery, our staff has been in close contact with Dr. Bryan Brooks of Baylor University for guidance. He is one of the nation’s top algae experts, and we have been working with him for several years," PA DEP Southwest Regional Director George Jugovic said. "While there is no evidence to suggest the health of our streams is at risk, we urge residents to be attentive to any changes they notice and to report them to us right away."

Golden algae is not harmful to humans and is only harmful to aquatic life when it releases toxins. Experts have determined that an algae bloom that is not receiving enough nutrients will release toxins to kill nearby aquatic life to create the nutrients it needs to survive. There is no proven way to treat golden algae without also causing harm to all other forms of algae.

CONSOL had shut off discharges from its St. Leo operation prior to the discovery, and the Blacksville #2 discharge was shut down as a precaution. WVDEP, WV Division of Natural Resources, Pennsylvania DEP, PA Fish and Boat Commission and CONSOL Energy will continuously monitor for the algae as well as the overall quality of the water.

Area residents who have information to share with the regulatory agencies may do so by calling 304-368-3960 in West Virginia and 412-442-4000 in Pennsylvania.

Morgantown City Council to Vote on Rejecting Gas Wells

2011-06-20T10:00:00.000-07:00

At its last meeting on June 7, Morgantown City Council proposed prohibiting natural gas wells in the city, and a mile outside. (The attempt to ban drilling outside its jurisdiction has caused some conflict with the county.) That led to this letter from Tim Carr, which does a good job of pointing out some of the problems with the city's proposed ban.

A final vote is scheduled for Tuesday June 21. The gas industry is planning a rally in the Monongalia Court House Square at 5 pm to show its opposition to the Council's plans.

The legislative delgation from Monongalia County and the City of Morgantown have been leaders in the opposition to natural gas drilling in the state. The original opposition was based on the mistaken belief that gas drillers dispose of excessive chlorides in the Monongahela River, the city's water supply. It now appears to be based on the unwarranted fear that the pond that is used to contain fracking water will somehow spill into the Mon River.

Petition Filed to Declare Blair Mountain Unsuitable for Mining

2011-06-17T05:31:00.000-07:00

Derek Teaney of the Appalachian Center for the Economy and Environment has filed an application to have Blair Mountain declared unsuitable for mining. It is located on the DEP website here. Blair Mountain has been in the news recently as the destination of a group of marchers who want to preserve it as a memorial to those miners who fought in the Battle of Blair Mountain. While there are no doubt some who want to preserve the mountain for its historical significance, it's likely that the Sierra Club, OVEC and others on whose behalf the petition is filed are looking for a high profile opportunity to oppose mountaintop mining.

It was surprising to note that, while the Battle is an important point in labor history in the Mountain State that is often cited by the UMWA, it was a setback for union organizers. The application contains a report on the history of the fight, with this passage:

In the aftermath of the insurrection, the UMW was severely weakened in West Virginia. Coal
operators and the state of West Virginia felt they could deal a deathblow to the union, and they took advantage of the situation (Blizzard 2004: 288). Leaders of the strike were tried on charges of treason against the state, and the lengthy trial drained the UMW’s funds (Blizzard 2004: 300). By the end of the 1920s only 512 union miners remained in West Virginia, a drop that was part of an overall nationwide decline in labor (Blizzard 2004: 343). But after the passage of the National Industrial Recovery Act in 1933, the southern coalfields rapidly organized and became a stronghold of union working class culture throughout the twentieth century.

We're better off with a country where people are free to organize, whether it be unions, environmental groups, or businesses. And a society should preserve places of significant historical, cultural and natural significance. Those who place that value on the property should demonstrate that by raising the money to buy it, rather than deprive the owner of its right to use the property. If the marchers want to stop development of Blair Mountain, let them pay fair market value for the property, or get the state or federal government to do it and place it in the park system, rather than use the "unsuitable for mining" process to deny Arch Coal the ability to develop the property.

EPA Announces Databases Providing Information on Hundreds of Chemicals

2011-06-16T13:41:00.000-07:00

This information came from an EPA press release and may be of interest to anyone wishing to obtain the underlying data that was used to determine chemical toxicity.

Searchable databases on chemical toxicity and exposure data now available

WASHINGTON – The U.S. Environmental Protection Agency (EPA) is making it easier to find data about chemicals. EPA is releasing two databases — the Toxicity Forecaster database (ToxCastDB) and a database of chemical exposure studies (ExpoCastDB) — that scientists and the public can use to access chemical toxicity and exposure data. Improved access supports EPA Administrator Lisa P. Jackson’s priorities of protecting Americans’ health by assuring the safety of chemicals and expanding the conversation on environmentalism.
“Chemical safety is a major priority of EPA and its research,” said Dr. Paul Anastas, assistant administrator of EPA’s Office of Research and Development. “These databases provide the public access to chemical information, data and results that we can use to make better-informed and timelier decisions about chemicals to better protect people’s health.”
ToxCastDB users can search and download data from over 500 rapid chemical tests conducted on more than 300 environmental chemicals. ToxCast uses advanced scientific tools to predict the potential toxicity of chemicals and to provide a cost-effective approach to prioritizing which chemicals of the thousands in use require further testing. ToxCast is currently screening 700 additional chemicals, and the data will be available in 2012.
ExpoCastDB consolidates human exposure data from studies that have collected chemical measurements from homes and child care centers. Data include the amounts of chemicals found in food, drinking water, air, dust, indoor surfaces and urine. ExpoCastDB users can obtain summary statistics of exposure data and download datasets. EPA will continue to add internal and external chemical exposure data and advanced user interface features to ExpoCastDB.
The new databases link together two important pieces of chemical research — exposure and toxicity data — both of which are required when considering potential risks posed by chemicals. The databases are connected through EPA’s Aggregated Computational Toxicology Resource (ACToR), an online data warehouse that collects data on over 500,000 chemicals from over 500 public sources.
Users can now access 30 years worth of animal chemical toxicity studies that were previously only found in paper documents, data from rapid chemical testing, and various chemical exposure measurements through one online resource. The ability to link and compare these different types of data better informs EPA’s decisions about chemical safety.
More information about the databases:
ToxCastDB: http://actor.epa.gov/actor/faces/ToxCastDB/Home.jsp ExpoCastDB: http://actor.epa.gov/actor/faces/ExpoCastDB/Home.jsp ACToR: http://actor.epa.gov

March on Blair Mountain

2011-06-15T10:45:00.000-07:00

Here's the Wall Street Journal's report on the march by anti-coal activists on Blair Mountain, site of a battle between union miners and company security in 1921.

Video Explains Natural Gas Drilling Techniques.

2011-06-15T10:38:00.000-07:00

Anyone interested in understanding natural gas drilling and fracking should head to the WVONGA (West Virginia Oil & Natrual Gas) website for a fantastic video on how vertical and horizontal drilling is done. The video explains drilling into sandstone, but it's no different for shale formations. Click on Drilling Techniques to start the video.

Sun Activity Expected To Drop Significantly

2011-06-15T10:31:00.000-07:00

One of the crucial aspects of climate change that is seldom mentioned by global warming partisans is the effect of the sun on climate. To a layman like myself, that would seem to be a big oversight. Watts Up With That is reporting that the American Astronomical Society is predicting a big drop in solar activity beginning in a few years.

A missing jet stream, fading spots, and slower activity near the poles say that our Sun is heading for a rest period even as it is acting up for the first time in years, according to scientists at the National Solar Observatory (NSO) and the Air Force Research Laboratory (AFRL).
As the current sunspot cycle, Cycle 24, begins to ramp up toward maximum, independent studies of the solar interior, visible surface, and the corona indicate that the next 11-year solar sunspot cycle, Cycle 25, will be greatly reduced or may not happen at all.

The results were announced at the annual meeting of the Solar Physics Division of the American Astronomical Society, which is being held this week at New Mexico State University in Las Cruces:

http://astronomy.nmsu.edu/SPD2011/

All three of these lines of research to point to the familiar sunspot cycle shutting down for a while.

“If we are right,” Hill concluded, “this could be the last solar maximum we’ll see for a few decades. That would affect everything from space exploration to Earth’s climate.”

ORSANCO To Hold Ohio River Sweep June 18

2011-06-14T12:12:00.001-07:00

Thousands of volunteers are expected to participate in this year’s Ohio River Sweep, collecting trash and debris off the banks of the river, from its origin in Pittsburgh, Pa., to its end in Cairo, Ill. The annual cleanup, sponsored by the Ohio River Valley Water Sanitation Commission (ORSANCO), is scheduled for Saturday, June 18.

The West Virginia Department of Environmental Protection is coordinating cleanups at 23 sites in 12 counties in West Virginia. The counties are Brooke, Cabell, Hancock, Jackson, Marshall, Mason, Ohio, Pleasants, Tyler, Wayne, Wetzel and Wood. Volunteers will be provided with trash bags and gloves and will receive a free T-shirt. Volunteers are not required to register in advance.

The River Sweep is among the largest cleanup events of its kind in the United States. More than 20,000 volunteers from the six states bordering the river are expected to collect over 20,000 tons of trash and debris from the Ohio River and its tributaries. All trash is either recycled or disposed of in an environmentally acceptable manner.

For more information from ORSANCO contact 1-800-359-3977.

Skin Products Are Hazardous Wastes?

2011-06-11T09:27:00.000-07:00

The Minnesota Department of Health has asked residents to stop using certain skin lightening products that contain high levels of mercury, and to dispose of the creams as a hazardous waste. Some of the creams had mercury levels as high as 33,000 parts per million. To put that in context, the Ohio River Water Sanitation Commission (ORSANCO Pollution Control Standards requires discharges of mercury in wastewater from factories or municipalities to be below 12 parts per trillion, absent a variance:

What Does A Ton Of CO2 Look Like?

2011-06-11T08:24:00.000-07:00

Ecogeek has this explanation of what a ton of CO2 looks like. It would be interesting to do the same thought experiment with the size of the atmosphere, given that CO2 is less than .04% of the atmosphere, and is needed to sustain life. And it would be interesting to know the amount of SO2 coming out of this volcano in Chile.

Kennedy Film Opposing Surface Mining Opens in Charleston

2011-06-11T08:17:00.000-07:00

Robert Kennedy's latest atack on surface mining, "The Last Mountain", was shown in Charleston last night. Ken Ward provides this review of the film. Bloomberg News has this account of the film.

I haven't seent he film, so I can't judge it. I hope, though, it shows why residents of the affected counties keep electing representatives who suport the coal industry. There must be some popular support for the industry in coal-mining counties, if only because it's the mainstay of the tax base. And it's probably too much to hope that the film would report on Mr. Kennedy's personal investment in alternative energy, which is heavily subsidized and would benefit from elimination of coal as a fuel. I suspect there's no mention of his NIMBY opposition to a wind farm near the Kennedy family compound in Hyannis Port, even while he's encouraging wind farms in West Virginia.

DEP Water Quality Standards Meeting Set For June 30

2011-06-11T08:00:00.001-07:00

The Department of Environmental Protection’s Water Quality Standards quarterly public meeting is scheduled for Thursday June 30 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 about a week prior to the meeting.

What Waters Are Protected?

2011-06-10T07:02:00.000-07:00

In West Virginia just about all waters are subject to some form of oversight, either surface waters, through the WV Water Pollution Control Act, or ground water, through the Groundwater Protection Act. Surface waters are protected through surface water quality standards and the NPDES program, which issues general and individual permits, while groundwater is protected by groundwater quality standards and best management practices that are required for industrial and municipal facilities.

The recent debate over how much protection is afforded the nation's waters ignores these state programs and focuses solely on the extent to which the Clean Water Act and its federal programs extend. The Supreme Court in the Rapanos case came up with two tests for determining whether a water body falls within the Clean Water Act ambit, one a plurality opinion by Justice Scalia and the concurring opinion by Justice Kennedy. Both of those tests are more narrowly confined than the jurisdiction that EPA was asserting before Rapanos and the SWANCC case.

EPA and the Corps of Engineers have come up with a guidance for determining when waters fall under the jurisdiction of the Clean Water Act, and they are taking comment on the guidance. The guidance follows Justice Kennedy's approach, not surprising as his interpretation of the scope of the Act is broader than Scalia's. An explanation of the history of EPA's recent guidance on federal water jurisdiction is found here

The Clean Water Act is a great thing, but the suggestion by some that waters are abandoned to limitless pollution wherever the CWA doesn't apply is misleading.

Here's EPA's press release on the guidance:

“Waters of the U.S.” Proposed Guidance Americans depend on clean and abundant water. However, over the past decade, interpretations of Supreme Court rulings removed some critical waters from Federal protection, and caused confusion about which waters and wetlands are protected under the Clean Water Act. As a result, important waters now lack clear protection under the law, and businesses and regulators face uncertainty and delay. The Obama Administration is committed to protecting waters on which the health of people, the economy and ecosystems depend.

U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers have developed draft guidance for determining whether a waterway, water body, or wetland is protected by the Clean Water Act. This guidance would replace previous guidance to reaffirm protection for critical waters. It also will provide clearer, more predictable guidelines for determining which water bodies are protected by the Clean Water Act.

The draft guidance will reaffirm protections for small streams that feed into larger streams, rivers, bays and coastal waters. It will also reaffirm protection for wetlands that filter pollution and help protect communities from flooding. Discharging pollution into protected waters (e.g., dumping sewage, contaminants, or industrial pollution) or filling protected waters and wetlands (e.g., building a housing development or a parking lot) require permits. This guidance will keep safe the streams and wetlands that affect the quality of the water used for drinking, swimming, fishing, farming, manufacturing, tourism and other activities essential to the American economy and quality of life. It also will provide regulatory clarity, predictability, consistency and transparency.

The draft guidance will be open for 60 days of public comment to allow all stakeholders to provide input and feedback before it is finalized.

EPA Issues Brownfield Grants to West Virginia

2011-06-08T06:14:00.001-07:00

EPA Announces $467,000 Investment

to Clean Up Contaminated Sites in West Virginia

PHILADELPHIA (June 6, 2011) -- The U.S. Environmental Protection Agency announced $467,000 in new investments that will help clean up abandoned industrial properties in West Virginia. These brownfields investments will enable three communities in the state to move forward with plans for redeveloping and revitalizing areas for economic and environmental improvement.

“Brownfields initiatives demonstrate how environmental protection and economic development work hand-in-hand,” said Shawn M. Garvin, regional administrator for EPA’s mid-Atlantic region. “Along with generating jobs, these grants will help West Virginia communities convert vacant industrial properties into assets for the community, the environment, and the economy.”

The West Virginia grants include:

$200,000 to the Jefferson County Development Authority to support cleanup efforts at the former Shepherdstown Dump in Shepherdstown, a historic village on the Potomac River. The site is known to contain carcinogens. Cleanup work will reduce risks to human health and the environment and is expected to allow the Development Authority to move forward with plans to reuse the site as a public library. The new library is expected to create jobs and improve literacy programs for local residents.

$200,000 to the City of Ranson in Jefferson County to support the cleanup of hazardous substances at the former Kidde Fire Fighting Foundry at 215 North Mildred Street. The vacant 5.5-acre site once operated as a brass and aluminum foundry that manufactured fire suppression equipment. The site is contaminated with heavy metals and inorganic contaminants. When the site is cleaned up, the city plans to redevelop it as Powhatan Place, an integral part of Ranson’s downtown revitalization plan.

$67,000 to the Town of Addison, a rural community in Webster County that was once known for its extensive coal mining and timber industries. The region’s industrial past has left behind many brownfields properties, including mine-scarred lands, sawmills, and abandoned railroads. Funds will be used to help clean up a former railroad site and reduce threats posed by contaminants in soil and groundwater. The cleanup work will allow the town to move forward with a master plan to reuse the site as a campground, museum, and tourism center.

EPA’s brownfields program encourages redevelopment of America’s estimated 450,000 abandoned and contaminated waste sites. Brownfields grants help to assess, clean up and redevelop abandoned, contaminated properties known as brownfields. Brownfields are sites where expansion, redevelopment, or reuse may be complicated by the presence or potential presence of a hazardous substance, pollutant, or contaminant. Grant recipients are selected through a national competition.

Since the beginning of the program in 1995, EPA has invested 1,895 assessment grants totaling over $447.6 million, 279 revolving loan fund grants totaling more than $273.1 million, and 752 cleanup grants totaling $140.8 million.

Additional information on the EPA brownfields program is available at http://www.epa.gov/brownfields/ . Additional information on grant recipients is available at http://www.epa.gov/brownfields/grant_info/index.htm .

Bill Introduced to Restrict EPA Interference with State Water Programs

2011-06-02T11:33:00.000-07:00

Thanks to Jason Bostic and the WV Coal Association for information (and the summary below) regarding new federal legislation that has been introduced in the U.S. House of Representatives by Nick Rahall (D-WV) and John Mica (R-FL) regarding the federal Environmental Protection Agency’s (EPA) role and authority with respect to state delegated Clean Water Act (CWA) Section 402 programs, state-issued CWA Section 401 water quality certifications and CWA Section 404 permits issued by the U.S. Army Corps of Engineers (Corps).

The legislation addresses concerns raised by EPA's interference in the state administered programs and the Corps’ permitting process by limiting EPA’s ability to advocate for the imposition of ad-hoc water quality standards through NPDES comment and objection letters and Section 404 comments.

Specific to West Virginia and coal mining, the legislation addresses virtually every point of contention between EPA and the State of West Virginia regarding the appropriate interpretation and implementation of the narrative water quality standard and the federal agency’s attempts to hijack that standard by virtue of the April 1, 2010 (conductivity) Guidance Document and objections to individual, mine-specific NPDES permits.

The bill also focuses on EPA’s abuses of the CWA Section 404 permitting program by limiting EPA’s ability to nullify a state-issued CWA 401 water quality certification, installing statutory time frames for EPA comments on pending CWA Section 404 permits and prohibiting EPA from vetoing a Corps-issued permit unless the state water quality regulatory authority agrees with EPA’s determinations.

The primary sections of the bill include:

Water Quality Standards

1. Provisions barring EPA from promulgating a new / revised water quality standard for a given pollutant where a state has promulgated and received EPA approval for an existing standard for that pollutant unless the state agrees with EPA’s determination that such a revised standard is necessary to satisfy the CWA.

NPDES / CWA Section 402 Permitting

1. Provisions prohibiting EPA from objecting to the issuance of a NPDES permit by a state based on:

a. EPA’s interpretation of a state promulgated and EPA approved water quality standard.

b. The implementation of any guidance document by EPA that attempts to interpret state promulgated water quality standards.

NPDES / CWA Section 402 State Permit Programs

1. Provisions restricting EPA from withdrawing approval or limiting federal grant assistance for state-implemented CWA Section 402 permitting programs based on:

a. Disagreement between the state and EPA regarding the appropriate interpretation and implementation of a state promulgated and EPA approved water quality standard.

b. Disagreement between the state and EPA regarding the interpretation and implementation of any guidance document by EPA that attempts to interpret state promulgated water quality standards.

Corps CWA Section 404 Permitting Programs

1. Prohibits EPA from vetoing existing/pending CWA Section 404 permits unless the state in which the project is / will be located agrees with EPA’s conclusions regarding unacceptable adverse effects.

2. Allows states to assume partial delegation of authority to administer the CWA Section 404 permitting program (states could assume Section 404 permitting responsibility for certain activities and not others--- coal mining operations but not nuclear waste facilities).

3. Provides statutory deadlines for federal agency comments to be submitted to the Corps on pending Section 404 permit applications—(30 days with additional extension to 60 days).

4. Prohibits EPA from taking any actions to supersede, disapprove or nullify a state’s finding that a Corps’ authorized Section 404 project will not cause or contribute to violations of state water quality standards per CWA Section 401 (state water quality certification).

Texas Files Brief in Challenge to EPA's Endangerment Finding

2011-06-02T07:27:00.000-07:00

In order to regulate greenhouse gases (GHGs) EPA had to make a finding that they present a danger to human health and the environment, something that is referred to as an endangerment finding. Several states and organizations, including the West Virginia Manufacturers Association, have challenged that finding. They have an uphill fight, given the deference afforded EPA on these types of decisions, a point made in statements by University of Vermont law professor Pat Parenteau, as reported by Reuters.

Texas recently filed its brief explaining why the EPA acted arbitrarily and capriciously in issuing its endangerment finding. I think Texas made a strong case that EPA erred when it made an endangerment finding without stating the standard for determining when a danger is posed, and in failing to consider whether mitigation and adaptation were reasonable alternatives to GHG regulation. I would have liked to have seen more about EPA's reliance on questionable data in making the endangerment finding, but Texas probably went with its strongest administrative law arguments, rather than ask the DC Circuit to weigh the science.

West Virginia DEP Awards Environmental Prizes to Youth Groups

2011-06-02T06:17:00.000-07:00

My first reaction, emanating from my inner Scrooge, is what are we doing using state funds for this? When budgets are tight, why are we handing out cash awards named for politicians? But then I noticed that some of the awards are sponsored by private businesses, and probably some are paid for by Supplemental Environmental Projects, so state funds may not be involved at all. And anyway, most of these appear to have involved kids working in the open air, and there's not enough of that today anyway. So in the last half hour I've worked myself around to being a strong supporter. Here's the press release:

Youth groups and individuals received awards totaling more than $11,000 during the recent West Virginia Youth Environmental Day at North Bend State Park in Cairo.

Sponsored by the state Department of Environmental Protection on May 21, the 48th annual Youth Environmental Day drew more than 1,000 young people from across the state.

Awards were presented based on participation in community environmental projects that included litter cleanups, recycling drives, school beautification projects, tree planting, backyard composting, wildlife management, watershed protection and much more.

Following is the list of winners:

Rick Vecellio Memorial Scholarship -- Amanda Hannon, Mountaineers 4-H Club, Mason County. This scholarship is presented to an active Youth Environmental Program member with exemplary conduct throughout his/her school years.

Recipient receives $2,500 per year for four years.

West Virginia Forestlands & Wood Products Art Awards -- Gage Smith, Greenwood Wildcats 4-H Club, Doddridge County (grade school); Adrianna McCoy, Mountaineers 4-H Club, Mason County (middle school); Cody Gallagher, Busy Bison 4- H Club, Marion County (high school). Three $150 awards are presented for art creations that promote West Virginia’s forest resources or wood products created from these forests.

Sustainable Forestry Art Poster Award -- Gweneth Paige Ashman, Daisy Troop 4988, Roane County. This $150 award is presented for the poster that best expresses ideas on sustainable forestry.

Maple Award (tree planting) -- Mountwood Park Youth, Wood County. This $150 award is presented to the youth group completing the best tree planting project.

Go-Mart Corporate Energy Essay Award -- Mary Jorgensen, Winfield High Environmental Action Club, Putnam County.

First place $125.

Bear Category Environmental Award -- Wilsonburg New Horizon 4-H Club, Harrison County. This $500 award is presented to a youth group, whose members are ages 12-14, completing projects that answer an environmental need.

Litter Control Award -- Busy Bison 4-H Club, Marion County.

This $250 award is for the youth group that has completed the most successful litter clean-up projects.

Mountain Laurel Category Environmental Award -- Haer Bears 4-H Club, Mason County. This $500 award recognizes youth groups, ages 6-11, which have completed projects addressing an environmental need.

Cardinal Art Poster Awards – (Two first-place winners) Sarah Pomeroy, Midway Meridians 4-H Club, Putnam County.

Faith Cook, Golden Stars 4-H Club, Mason County. Cardinal Art Posters must depict an environmental theme. They are judged on originality, quality, and choice of theme.

Rick Vecellio Memorial Art Poster Awards – (Five winners) Michael King, Busy Buddies 4-H Club, Mason County; Matthew Richardson, Roadrunners 4-H Club, Mason County; Josie Hill, Haer Bears 4-H Club, Mason County; Lily Pauley, Winfield Scotts 4-H Club, Putnam County; Amanda King, Busy 4’s 4-H Club, Mason County. The $100 awards are given for posters that depict an environmental theme, judged on originality, quality, and choice of theme.

Gov. Earl Ray Tomblin Beautification Award -- Boy Scout Troop and Crew 32, Hampshire County. The $150 award is presented to the youth group that completes the most outstanding job of community litter prevention, clean-up and beautification.

Keep West Virginia Beautiful Awards -- Sand Hill Explorers 4-H Club, Wood County. The $125 award is presented for the most outstanding litter prevention project conducted for a school.

Mountain State Award of Excellence Environmental Project -- Highland School Hawks Conservation Club, Ritchie County.

This $500 award is for clubs with projects answering an environmental need, that have also won first place in the past two years in the Mountain Laurel, Bear and Rhododendron categories.

DEP Cabinet Secretary Randy C. Huffman Brook Trout Kindergarten Award -- Belleville 4-H Cloverbuds, Wood County. This $200 award is presented to the kindergarten group that completes the most outstanding environmental projects.

Youth Environmental Hall of Fame Awards -- Elaine Ashman, Girl Scout Troop 4988, Roane County. Cody Gallagher, Busy Bison 4-H Club, Marion County. The $100 awards go to the outstanding boy and girl who are nominated based on their extensive involvement in their club’s community environmental activities.

Stream and Trails Award -- Sharp Shooters Shooting Sports 4- H Club, Wood County. This $100 award goes to the youth group that has shown the most effort in cleaning a stream and/or building or maintaining a trail.

Pepsi Cola District Awards – (Given to youth groups in each of the six districts in recognition of their overall community environmental efforts). Each receives $100.

District 1: Cross Roads 4-H Club, Marion County. District

2: Jersey Mountain Workers 4-H Club, Hampshire County.

District 3: Horner Busy Bees 4-H Club, Lewis County.

District 4: Hinton Helping Hands 4-H Club, Summers County.

District 5: Ashton Elementary Second Grade, Mason County.

District 6: Comet Cardinals 4-H Club, Jackson County.

Environmental Achievement Award -- Greenwood Wildcats 4-H Club, Doddridge County. This $125 award is presented to a newly enrolled youth group that has shown the most progress through participation in community environmental projects.

Rhododendron Category Environmental Awards -- Winfield High School Environmental Action Club, Putnam County. This $500 award is presented to a youth group completing projects that answer an environmental need, whose members are ages

15 years and older.

Recycling Awards -- Hill Billie 4-H Club, Mason County.

This $300 award is presented to a youth group with the best overall recycling projects. The projects are judged not only on the total pounds recycled, but also on the diversity of recyclables and community involvement.

Wildlife Management Award -- Go Getters 4-H Club, Mason County. This $200 award is presented to a youth group completing a wildlife management project that encompasses food, water and cover for West Virginia’s wildlife, especially during the winter months.

Recycling Education and Awareness Award -- Cow Creek Hi Strivers 4-H Club, Putnam County. This $150 award is given to the youth group with the best community recycling education and awareness project based on club and community involvement.

Save Our Streams Award -- Lucky Leaf 4-H Rhododendron Club, Randolph County. This $100 award is given to the youth group whose project(s) meets the goals of the Save Our Streams Program, which are increasing West Virginia’s ability to monitor the quality of state rivers and streams and enhancing public awareness of the need for their protection.

Kroger Plastic Recycling Awards -- Midway Getters 4-H Club, Preston County. This $250 award encourages recycling plastic shopping bags.

Environmental Education Award -- Mountaineers 4-H Club, Mason County. The award is presented to the youth group that has completed the most outstanding work in environmental education by creating public awareness on environmental issues such as recycling, litter laws, hunter safety, hazardous waste, nongame wildlife, etc.

Watershed Protection Award – Boy Scout Troop 250, Kanawha County. The $250 award is given to the youth group that shows the most effort in watershed protection, education and community awareness.

REAP Adopt-A-Spot Award -- Schultz Ridge Runners 4-H Club, Pleasants County. This award is presented to the youth group with an Adopt-A-Spot that has maintained the spot with three reported cleanups and that has planted and maintained flowers on the spot for each blooming season.

North Bend Clean & Green Litter Control Award -- Cub Scout Pack 47, Wood County. This $200 award is presented to the youth group that completes the most outstanding job of litter prevention and cleanup efforts at North Bend State Park, especially during Youth Environmental Day.

West Virginia State Parks Superintendents Association Award -- Pony Pals 4-H Club/Summers County Green Team, Pence Springs. This $250 award was established by the late Steve Boler, superintendent of Pipestem Resort State Park, to foster relationships between local youth groups and state parks, forests and wildlife management areas.

REAP Recycling Power Point Presentation Awards -- Girl Scout Troop 4988, Roane County. This award was created for those youth groups wishing to step up their involvement in environmental activities by creating a Recycling Power Point Presentation. The presentation includes the community environmental impact, the educational impact and media coverage of the group’s recycling project.

WV Department of Environmental Protection Announces Rule Proposals for 2010

2011-06-01T10:13:00.000-07:00

Below is an excellent summary, by division, of the rules DEP plans to propose for the 2012 Legislative session. This was prepared by Kristin Boggs, general counsel for the DEP.

Division of Air Quality

45 CSR 8 – Ambient Air Quality Standards – Annual incorporation by reference amendments to the NAAQS, including Primary National Ambient Air Quality standard for sulfur dioxide.

45 CSR 14 – Permits for Construction and Major Modification of Major Stationary Sources of Air Pollution for the Prevention of Significant Deterioration – Revisions to the rule incorporate changes to the federal counterpart, "Prevention of Significant Deterioration for Particulate Matter Less Than 2.5 Micrometers – Increments, Significant Impact Levels and Significant Monitoring Concentration."

45 CSR 16 – Standards of Performance for New Stationary Sources – Annual incorporation by reference amendments to the NSPS.

45 CSR 18 – Combustion of Solid Waste – The revised rule incorporates by reference the amended Standards of Performance for New Commercial and Industrial Solid Waste Incineration Units and sets forth emission guidelines for existing commercial and industrial solid waste incineration units.

45 CSR 19 – Permits for Construction and Major Modification of Major Stationary Sources of Air Pollution Which Cause or Contribute to Nonattainment – Revisions to the rule include new significant impact levels promulgated by EPA.

45 CSR 25 – Control of Air Pollution from Hazardous Waste Treatment, Storage and Disposal Facilities – Revisions to the rule include annual incorporation-by-reference updates.

45 CSR 30 – Requirements for Operating Permits – Revisions to the rule implement the provisions of EPA’s final Greenhouse Gas Tailoring Rule. Language is added that is intended to rescind elements of the Tailoring Rule if a court, Congress, EPA or the President finds that GHGs are not subject to regulation. In order to effect the provisions of the Tailoring Rule as soon as practicable, and in accordance with EPA-mandated timelines, West Virginia has adopted this rule as an emergency rule.

45 CSR 34 – Emission Standards for Hazardous Air Pollutants – Annual incorporation-by-reference revisions to the Hazardous Air Pollutant rule.

45 CSR 35 – Requirements for Determining Conformity of General Federal Actions to Applicable Air Quality Implementation Plans (General Conformity) – This revised rule incorporates by reference the following provisions of 40 CFR 93: Revisions to the General Conformity Regulations.

45 CSR 42 – Greenhouse Gas Emissions Inventory Program – DAQ is proposing to repeal this rule because on October 30, 2009, EPA promulgated standardized greenhouse reporting requirements, "Mandatory Reporting of Greenhouse Gases." Because 45 CSR 42 was promulgated before the EPA finalized its mandatory greenhouse gas reporting requirements, and the rule’s approach to greenhouse gas reporting was significantly different from EPA’s final approach, the DAQ has determined that sources subject to EPA’s Mandatory Reporting of Greenhouse Gases shall not be also subject to the differing requirements of this State rule. To further eliminate this conflict, the DEP will take steps to amend W. Va. Code § 22-5-19, which authorizes the Secretary to propose legislative rules establishing a Greenhouse Gas Inventory Program. Such amendment to the Code will provide for the Cabinet Secretary to allow reporting under EPA’s Mandatory Reporting of Greenhouse Gases to satisfy greenhouse gas reporting requirements in West Virginia.

　
Division of Water & Waste Management

33 CSR 1 – Solid Waste Management Rule – Revisions to this rule are to add the definition of "covered electronic devices" to the list of defined terms and to add covered electronic devices as an unacceptable waste banned from disposal in the State’s landfills. This revision is necessary due to the passage of Senate Bill 298 on March 12, 2010, which amended and reenacted W. Va. Code § 22-15A-25 to ban certain electronic devices from landfill disposal.

33 CSR 20 – Hazardous Waste Management Rule – Revisions to the rule include annual incorporation-by-reference updates from the federal counterpart. Further, DWWM proposes to amend the rule to reflect that the authority it previously transferred to the Division of Highways to regulate hazardous waste on the highways has been transferred by statute to the Public Service Commission when the Weights & Measures Section was transferred from the DOH to the PSC.

Division of Land Restoration

60 CSR 3 – Voluntary Remediation and Redevelopment Rule – This rule is being revised to update the de minimus clean-up standards. This change is necessary, because the toxicological profiles for many chemicals in the federal IRIS database have been revised, which necessitates changes to the de minimus table.

Big Trees in West Virginia

2011-05-11T06:08:00.000-07:00

Charlotte Ferrell Smith of the Charleston Daily Mail reports on updating the West Virginia Big Tree Registry. Bob Radspinner, former president of the West Virginia Forestry Association, is heading up that project. You may have a hard time finding some of the trees already on the registry, because the Division of Forestry doesn't always give out their locations, to avoid their being damaged by vandals or stolen. If you want to nominate trees, Ms. Smith says the public can go to the website www.wvcommerce.org/ resources/forestry/big_tree for information about measuring and submitting nominees.

Questions About Duke University Study On Methane In Wells

2011-05-10T12:12:00.000-07:00

Researchers from Duke University recently reported in the Proceedings of the National Academy of Science on methane found in drinking water located near fractured wells . The authors reportedly concluded that hydraulic fracturing is responsible for the methane. However, correlation is not necessarily causation. There certainly was no fracturing fluid or flowback that would indicate that the fracturing was causing the methane to end up in the drinking water. As reported in Forbes,

We found no evidence for contamination of drinking-water samples with deep saline brines or fracturing fluids,” write the four scientists from Duke University in their study, published in the Proceedings of the National Academy of Sciences.

Energy in Depth has an initial response to the study that is worth consideration.

You wouldn’t have known it by looking at all those headlines this morning, but spend some time wading through the report and (admittedly limited) data set issued by researchers at Duke University over the weekend, and you’ll come across a number things that opponents of responsible natural gas development in the Marcellus aren’t likely to repeat. Or like. One bit.

For starters, the researchers basically admit that hydraulic fracturing itself is not responsible for methane migration into water wells, additionally conceding in their paper that neither brine nor fracturing fluids were detected in any of the water wells they sampled, even in areas where development operations are most active.

They were also forced to admit that methane is a natural, common constituent found in just about every water well across the entire region (85 percent of them, to be exact), with thermogenic methane – as opposed to the biogenic stuff – identified in the vast majority of those, even in areas where no development has taken place. How does thermogenic gas migrate upward in areas of zero Marcellus development? Geology, it turns out, has plenty of answers to offer on this question. But the authors of this report aren’t geologists, so they chose to ignore that question in its entirety.

Of course, neither a lack of expertise nor a frighteningly small data set had the effect of slowing down one bit the researchers’ aggressive campaign to generate as many hits as they could in the media – up to and including the placement of an op-ed by Duke’s Rob Jackson in this morning’s Philadelphia Inquirer.

In truth, it’s a campaign that started late last week, with a reporter in Quebec (of all places) sending us a media advisory from Mr. Jackson trumpeting the release of a new paper that “attributes contamination to gas extraction technologies.” As mentioned, the report itself doesn’t actually say that – in fact, Jackson says the exact opposite in an interview with Bloomberg TV today. But as it turns out, putting out a paper calling for updated state well-casing standards isn’t quite as sexy as putting out a paper calling for an EPA take-over of the fracturing process itself, is it?

Below, we take a closer look at the central “findings” of the Duke report, along the way identifying several errors, inconsistencies and problems that, taken together, raise serious doubts about the rigor, veracity and statistical significance of the project.

For the full response from Energy in Depth, go here

Coal-To-Liquids Plant Breaks Ground in Mingo County

2011-05-10T05:27:00.000-07:00

It was a beautiful day in Gilbert, WV at the ground-breaking ceremony for theTransGas Adams Fork coal-to-gasoline plant. The ceremony was held at the Larry Joe Harless Commmunity Center. Here is the MetroNews report. I didn't see Ken Ward there, but here is his and Eric Eyre's report on the project.

80 Year Old Miner Still Works Underground

2011-05-09T14:41:00.000-07:00

Here is an incredible story from the Beckley Register Herald about a miner who is still working underground at the age of 80. He started working in the mines when Truman was president and the pay was $2 an hour.

Stink Bugs

2011-05-07T06:09:00.000-07:00

Here is information from Dr. Dave Samuel, former chairman of the Environmental Quality Board, about stink bugs, which have been especially bad the past few years.
t bite, and they didn't really smell, but they were everywhere, inside and outside our homes. Get out the sweeper and suck them up by the thousands, but there always seemed to be more pouring in. That was then, but now we have a new home invader. Stink bugs.

Stink bugs came to America from the Orient where they are agricultural pests. They apparently caught a ride on a container ship and were first seen in Allentown Pennsylvania in 2001. They were first spotted in West Virginia in 2004. Stink bugs didn't appear to be much of a problem until last year when the numbers soared. Today they have spread to many states, and this summer and fall we'll all get a chance to see them . . . in our homes.

There are a number of species of stink bugs, but the one we have is the Brown Marmorated Stink Bug. There, aren't you glad you read my column today? Regardless of its formal name, for home owners, the real problem is that they are in your house in large numbers. The other night I got up around 3 A.M. to do what older men do at 3 A.M., and voila, there on the toilet was a stink bug. He ended up floating away (use your imagination).

Even though it was in my bathroom, he (she) posed no threat to me. Stink bugs don't bite, and unless you crush them, they don't smell too bad. However, if you are in the agriculture business, especially fruits and vegetables, stink bugs are a major economic problem. Growers in the eastern panhandle were hit fairly hard last year, and things could get worse this summer.

Adults emerge in late April and May, mate (is that what that guy or girl was doing on my toilet? There has to be a better place for those activities. Then again, when you are a bug, you may just be a little less discriminating), then lay eggs from late May through August. The eggs hatch and go through five molts. As cold weather comes on the adults look for places to overwinter. Your home.

They'll feed on ornamental plants, but really like fruits such as pears, peaches, and apples. They've even been found on blackberries, tomatoes and corn.

OK, the big question. How to keep them out of your home? Actually, the best way is the same way you used to keep the Asian lady beetles out of your homes several years ago. Cover or caulk all cracks around the exterior windows and doors. Do the same around chimneys, wood fascia, and repair all bad screens. In other words, seal your house as best you can. Yes, you can spray, but I'm told that most insecticides you would use on your house have a short effective life span, so these won't work very well.

In the spring, if they start to emerge in your home, then seal all cracks around baseboards, window and door trim, ceiling light fixtures, etc. You can suck them up with a vacuum cleaner, but that smell may stay with the sweeper for three weeks. Last year some folks in Maryland removed more than 20,000 of these rather large critters from their homes.

The prediction is that in mid-September we will be inundated with these pests. Get prepared and seal your home as best you can. For your gardens, I found one reference that said to use insecticidal soaps. Several references noted that when sprayed, these nasty little bugs can lay "dead" for up to a week, then suddenly resurrect. Tough critters. One last thing. Be careful about buying sprays that guarantee to kill all the stink bugs in or around your home. Apparently, at this time, there just isn't any such product. What a stinking mess this is.

Bugs That Are Stinking Up The Place May 15, 2011
by
Dr. Dave Samuel

First it was those pesky little rascals that looked like ladybugs that invaded our space and made a nuisance of themselves. They didn'

The Right Path to Renewable Energy

2011-05-02T05:56:00.000-07:00

This is how renewable energy should be advanced - private money is invested in developing new methods of nonpolluting power. Taylor Kuykendall of the Beckley Register Herald reports on Google's plan to throw cash at several renewable energy sources. One possible source of renewable power in West Virginia is a geothermal hotspot in the eastern portion of the state.

I wouldn't put my money into these projects, which generally can't survive without significant government subsidies, and don't show much immediate promise. But I respect others who are trying to develop new industries without using tax dollars or government coercion. The founders of Google are evidently willing to put their money where their mouths are.

Harmonic Mean Flow - the Camel's Nose Appears Under the Tent Flap

2011-04-30T14:08:00.000-07:00

NPDES permits issued under the Clean Water Act have limits that are set to protect water quality in the river into which pollutants are discharged. The State's water quality standards are generally expressed as ratios, in the form of milligrams or micrograms per liter. In order to comply with those standards most dischargers use a mixing zone, where concentrations of a pollutant (e.g., aluminum) in wastewater that are higher than allowed under the standards are allowed to mix with the receiving river, and are diluted. In order to determine how much dilution is available one has to know the flow of the river, the existing load of the pollutant in the river, and the pollutant load and flow of the discharge. The flow of the river used to calculate limits is referred to as the "critical design flow."

In issuing NPDES permits the West Virginia DEP usually uses a very conservative critical design flow referred to as the 7Q10, or the lowest 7 day consecutive flow that recurs at least once every 10 years. It's a pretty low flow, meaning that the dilution available is low, and that means NPDES permit discharge limits are lower as well, because there's less water to mix with. Even though the flow in the river, and therefore the amount of water available for mixing, is higher 99% of the time, the low 7Q10 flow is used to set limits in order to protect water quality even during drought periods.

Using the 7Q10 flow for permitting makes sense if you're trying to protect aquatic life, because fish and bugs are present during low flow conditions. But water quality standards are also set to protect drinking water supplies, and here is where the 7Q10 doesn't make sense. Human health water quality criteria for carcinogens are set at very low levels because the assumption is that the criterion for, say, benzene, must protect someone who drinks a liter of water per day from that river for 70 years. Since the low and high levels of the stream, and it's diluent capacity, tend to average out over that 70 years, a different flow can be used to set limits for carcinogens. The critical design flow that should be used to calculate permit limits in that circumstance is often referred to as the harmonic mean flow, which roughly approximates the average flow of the river.

So a low flow is used to set permit limits that protect fish from acute effects of drought, and an average flow is used to set limits for carcinogens, which involve long term average exposures. Or, at least, the harmonic mean flow should be used for setting permit limits for carcinogens. Instead, for reasons I won't go into, but have everything to do with politics, and bear no relation to science, the 7Q10 is used to calculate limits for aquatic life and (overprotective) limits for human carcinogens.

All of this is background to the fact that, very quietly during the 2011 Legislative session, a change was made to the water quality standards to allow use of the harmonic mean flow to set permit limits in a certain place on the Ohio River. (See notice below.) My hat goes off to the accomplished lobbyist who put that change in the standards. I hope that it is applied statewide in the years to come.

The West Virginia Department of Environmental Protection has scheduled a public hearing on 2011 state legislative revisions made to Rule 47CSR2, “Requirements Governing Water Quality Standards.”

The hearing is scheduled for 6 p.m. on Tuesday, May 3, at DEP headquarters, 601 57th St., S.E., Charleston, in the Coopers Rock Training Room. In addition to oral comments provided at the hearing, the agency will accept written comments at any time up to the conclusion of the public hearing. No comments will be accepted after that time.

Revisions made during the past legislative session added language to Rule 47CSR2 that addresses the critical design flow for determining effluent limits for carcinogens on the Ohio River between mile points 68.0 and 70.0.

DEP Appeals Environmental Quality Board Decision Remanding Patriot Mining NPDES Permit

2011-04-27T07:28:00.000-07:00

The West Virginia Department of Environmental Protection, Division of Mining and Reclamation, has appealed the Environmental Quality Board's decision remanding the NPDES permit for Patriot Mining's New Hill West mine to require the DEP to, among other things, perform a reasonable potential analysis for arsenic, conductivity, sulfate and total dissolved solids (TDS) and to develop permit limits for conductivity, sulfate and TDS. The appeal filing is here, courtesy of Ken Ward at Coal Tattoo.

One error alleged by the State is the Board's refusal to restrict reliance on EPA's guidance for Appalachian coal surface mining, in which EPA used a questionable methodology to impose limits on surface mine discharges based on conductivity. The guidance was undergoing further review, but the Board still allowed the Sierra Club to rely on the findings in it as support for its appeal. The DEP filed a motion in limine, but it was deemed to be filed late, and an oral motion in limine was rejected.

The EPA guidance poses significant problems for mining, but its underlying premise is troubling for anyone with an NPDES permit. Permits issued pursuant to the Clean Water Act have to contain limits that will result in compliance with water quality standards. In the past, that has meant meeting the numeric limits in the state water quality standards (47 CSR 2) for specified substances, like iron or benzene. However, there are also vague narrative criteria (Section 3) that prohibit conditions in state waters, such as color, sediment, or toxicity to aquatic life. The EPA seized upon the toxicity portion of the narrative water quality standards and concluded that marginal reductions in certain Mayfly populations were evidence of toxicity, and that a proxy for that toxicity was conductivity. (Conductivity is the measure of ions in water, and is often used as a means of estimating dissolved solids.) Using imprecise biological measurements and EPA's guidance, the Sierra Club was successful in convincing the Board in this appeal that there was some impairment likely to be caused in certain aquatic or benthic species, resulting in a violation of the narrative water quality standard, and therefore additional permit limits were needed.

Another error alleged by the State is the Board's decision with regard to those permit limits. On the one hand, it required the DEP to perform a "reasonable potential" (RP) analysis to determine whether the mine's discharge could violate water quality standards for arsenic, conductivity, sulfate and TDS. On the other hand, it must have presumed the RP analysis would show the need for limits, as it required limits for conductivity, sulfate and TDS.

There's another question that is posed by the DEP's appeal, but not raised in the appeal notice - whether the EQB has the authority to remand permits to the DEP for modification. Remand is clearly allowed by the WV Administrative Procedures Act, but that section is overridden by WV Code 22B-1-7(g) which gives the Board authority to approve, vacate or revise a permit, but does not mention remand. The Board has historically remanded permits with no objection by either party, but I believe the Board's authority to do so may be questioned in the near future. I imagine that Jennifer Hughes, the DEP's very capable attorney, felt she had enough on her hands without taking that issue up as well.

TransGas to Break Ground on Coal Gasification Project in Mingo County

2011-04-27T06:13:00.000-07:00

I don't usually post on matters that I'm working on professionally, but I thought I'd make an exception for the Mingo County coal-to-gasoline plant that will break ground in Mingo County on May 9th. Adam Victor of TransGas Development Systems deserves acknowledgement for the advanced coal gasification project that he'll be constructing there at a cost of billions of dollars. A report on the project and information about the groundbreaking can be found here.

The plant, expected to produce over 750,000 gallons of gasoline per day, is being constructed a a minor source of air pollutants. This report from CoalGeology.com states that

The Adams Fork Energy plant will convert regional coal into premium grade, ultra clean gasoline, and will produce 18,000 barrels (756,000 gallons) per day. Following a four year construction period, this plant will create nearly 300 full-time, direct jobs, and is expected to triple the tax base in Mingo County. The facility was permitted by the State of West Virginia’s DEP based on PRENFLO PDQ gasification technology provided by Uhde, a wholly owned company of the ThyssenKrupp Group. Uhde is the world leader in coal gasification and has decades of experience in coal gasification

Supreme Court Hears Oral Argument In Global Warming Lawsuit

2011-04-21T09:48:00.000-07:00

The US Supreme Court is considering a lawsuit that several States and environmental groups have filed (American Electric Power, et al., v. Connecticut, et al. (10-174)) against several electric utilities, arguing that their emissions of greenhouse gases are a nuisance that is actionable at law. The companies and the US contend that the regulation of greenhouse gases has been preempted by the Clean Air Act and federal programs, effectively prohibiting common law actions such as nuisance. The appeals court ruled in the utilities' favor.

During oral argument the justices were concerned about the difficulty of resolving a supposed global problem with a lawsuit in which a few emitters are named, and the impossiblity of crafting a workable remedy for an international situation. Here is the report from SCOTUSblog that provides a summary of the argument before the Court.

EPA Solicits Comment On New Storm Water Permit For Construction Activity

2011-04-19T07:12:00.000-07:00

EPA is proposing a new storm water permit for construction activities. This general permit would apply to storm water runoff from earth-disturbing activities in states that do not have authority to write NPDES permits. West Virginia is a delegated state and does have that authority. It issues its own NPDES permit for storm water discharges from construction, generally for a 5 year term. While the West Virginia DEP does not have to follow the federal permit, it generally will do so when it reissues after the current permit expires in December of 2012.

Here's EPA's notice of the new permit, and the opportunity to comment:

1) EPA Solicits Public Comment on Permit to Reduce Stormwater Discharges from Construction Sites The U.S. Environmental Protection Agency (EPA) is releasing for public comment a draft permit that will help improve our nation’s waterways by regulating the discharge of stormwater from construction sites. Stormwater discharges during construction activities can contain sediment and pollutants that harm aquatic ecosystems, increase drinking water treatment costs and pollute waters that people use for fishing, swimming and other recreational activities.

The proposed Construction General Permit (CGP) includes a number of enhanced protections, including enhanced provisions to protect impaired and sensitive waters. Some of the significant proposed permit modifications include new requirements for:

• Eligibility for emergency-related construction

• Required use of the electronic notice of intent process

• Sediment and erosion controls

• Natural buffers or alternative controls

• Soil stabilization

• Pollution prevention

• Site inspections

• Stormwater Pollution Prevention Plans

• Permit termination

Many of the new permit requirements implement new effluent limitations guidelines and new source performance standards for the construction and development industry that became effective on February 1, 2010. These requirements include a suite of erosion and sediment controls and pollution prevention measures that apply to all permitted construction sites.

The permit will be effective in areas where EPA is the permitting authority, including four states (Idaho, Massachusetts, New Hampshire and New Mexico); Washington, D.C.; most territories; and most Indian country lands.

The public will have 60 days to comment on the draft permit. EPA anticipates that it will issue the final construction general permit by January 31, 2012.

The current permit is scheduled to expire on June 30, 2011; however, EPA is proposing to extend the current permit until January 31, 2012 to provide sufficient time to finalize the new permit.

More information on the proposed construction general permit: http://cfpub.epa.gov/npdes/stormwater/cgp.cfm

DEP Employee Wins Award From EPA

2011-04-15T09:56:00.000-07:00

Congratulations go out to Greg Adolfson for winning an award from EPA for environmental achievement.

EPA Honors WV DEP Employee for Environmental Achievements

PHILADELPHIA (April 14, 2011) – The U.S. Environmental Protection Agency’s mid-Atlantic Region selected 11 winners, including Gregory Adolfson, an employee of West Virginia’s Department of Environmental Protection, for its 2010 Environmental Achievement awards. Adolfson’s work at the state DEP won him EPA’s award in the ‘individual’ category, and has been instrumental in getting businesses, manufacturing companies, and universities in West Virginia to partner with the state and EPA to implement environmentally-sustainable practices.

“People and organizations throughout our region are making great strides in environmental protection, and these awards recognize some of the shining stars who are doing more than their share to keep our planet healthy and inspiring others to do the same,” said Shawn M. Garvin, regional administrator for EPA’s mid-Atlantic region.

As West Virginia DEP’s sustainability officer, Adolfson helped establish a memorandum of agreement between DEP and EPA to work jointly to promote sustainable practices as a way to improve air, water and land. This collaboration has led to sustainability partnership agreements with DOW Chemicals, Toyota Motor Manufacturing, Marshall University and West Virginia University. The state has also created its own program to help communities become environmentally sustainable through water and energy conservation, pollution prevention, and education.

EPA presents awards in three categories: non-profit or volunteer organization; business and industry; and state, local or other federal government agency. For a full list winners and more information on the awards, visit: http://www.epa.gov/region03/EnvironmentalAwards/winners2010.htm