Morrisey and Huffman Respond To EPA SIP Call for Changes to Startup and Shutdown Events

            EPA has proposed significant  changes to the manner in which states manage their air pollution control programs.  Many states allow air emission sources to exceed air pollution permit limits during brief periods of equipment startup, shutdown and malfunction when there may be, for example, incomplete fuel combustion. As a result of a lawsuit by the Sierra Club, EPA now wants to require states to amend their State Implementation Plans (SIPs) to treat emissions exceedances during startups and shutdowns as violations.  (Exceedances may be allowed because of malfunctions, but only as a matter of enforcement discretion.)  EPA's fact sheet can be found here.

            The SIP Call identifies eight West Virginia regulations that would have to be revised to eliminate exemptions for startup and shutdown events.  On May 13, 2013 Randy Huffman, Director of the Department of Environmental Protection and Patrick Morrisey, Attorney General responded to EPA, objecting to EPA’s proposed rejection of the state regulations.  One of the principal contentions of EPA is that §302(k) of the Clean Air Act defines emission limitation as “a requirement established by the State with the Administrator which limits the quantity, rate, or concentration of air pollutants on a continuous basis. . .”   However, as Huffman and Morrisey pointed out, in the past EPA has not interpreted the word “continuous” to preclude higher emissions during SSM events.  They also noted: that EPA lacks the authority to issue a SIP Call because it had not made the necessary findings that changes in state regulations are needed; that the rule fails to comply with the federal Administrative Procedure Act; and that EPA had misconstrued West Virginia’s SSM emissions and greatly overstated the amount of discretion given the state to allow higher emissions during the SSM events.

            Several other states have joined West Virginia in opposing EPA’s rulemaking.  EPA will review the comments and then determine whether to proceed with the proposed rule.

            State Implementation Plans: Response toPetition for Rulemaking; Findings of Substantial Inadequacies; and SIP Calls toAmend Provisions Applying Access Emissions During Periods of Startup, Shutdown,and Malfunction.  78 Fed. Reg. 12460(Feb. 22, 2013) Air Docket No. EPA-HQ-OAR-2012-0322.

West Virginia Issues Oil and Gas Storm Water Permit

            On May 13, 2013 the West Virginia Department of Environmental Protection’s Division of Water and Waste Management issued its General Water Pollution Control Permit for Stormwater Associated with Oil and Gas-related Construction Activities.  This permit will be required for storm water discharges from earth-disturbing activities of more than an acre that are associated with oil and gas production and transportation  and  that are not covered under an Office of Oil and Gas well work permit. The permit has an effective date of June 12, 2013 and an expiration date of May 13, 2018.

The new permit is very similar to the  NPDES general permit for storm water from construction activities that is already in effect.  However, a separate state-only permit had to be issued for oil and gas activities because storm water runoff from oil and gas activities is generally exempt from state/federal NPDES permitting. Section 402(l)(2) of the Clean Water Act exempts oil and gas operations from storm water permitting, and §502 of the Act broadly defines those operations:

The term “oil and gas exploration, production, processing or treatment operations or transmission facilities” means all field activities or operations associated with exploration, production, processing or treatment operations, or transmission facilities, including activities necessary to prepare a site for drilling and for the movement and placement of drilling equipment, whether or not such field activities or operations may be considered to be construction activities.

33 U.S.C. §1362(24).  More information about the scope of this exemption can be found at EPA’s website and in Natural Resources Defense Council v. EPA, 526 F.3d 593 (9th Cir. 2008).

The result of the exemption is a patchwork of regulation.  Generally speaking, the Office of Oil and Gas requires sediment and erosion control measures for roads, pads, pits and other earth disturbance that are associated with drilling.  These best management practices are placed in drilling permits, but they are state-only conditions, and are not enforceable under the state/federal NPDES program.  The new permit is intended for earth disturbance associated with gas line laying and other oil and gas activities that are not regulated in a drilling permit.  Runoff from all other earth disturbance is covered under Division of Water and Waste Management’s general NPDES permit for storm water discharged from construction operations.

The permit, fact sheet and responsiveness summary for the new oil and gas storm water permit  can be found here. 

            For more information, contact Dave Yaussy at dly@ramlaw.com   

2012 Drought Not Tied To Climate Change

It looks like the drought last year in the Midwest was the result of changes in the Jet Stream, not global warming.  The National Oceanic and Atmospheric Administration reached that conclusion recently as reported on Watts Up With That.  See another report on NOAA's  report  here in the Examiner

Trout Fishing Improves in Southern West Virginia

Trout fishing in Southern West Virginia is making a comeback, according to this article by Bob Fala outdoors columnist for the Logan Banner.  He gives credit all around, to the Clean Water Act, DEP and DNR, Trout Unlimited, local citizen groups, and coal mine mitigation projects.

West Virginia DEP Junior Conservation Camp June 17-21

Applications are being accepted for the 33rd annual state Junior Conservation Camp, scheduled June 17-21 at Cedar Lakes in Ripley.

Sponsored by the West Virginia Department of Environmental Protection’s Youth Environmental Program, the camp is open to youth, ages 11-14. The cost is $165 per child and the deadline for paying the application fee is May 1.

Junior Conservation Camp offers a wide variety of classes that focus on a sound environmental education and other topics, such as first aid and hunter safety. Approximately

200 campers will learn how to conserve West Virginia’s natural resources by attending classes on subjects such as wildlife, recycling, geocaching/orienteering, water study, forestry, fishing and more. Sports activities will include swimming, basketball, kickball, volleyball, Wiffle Ball and relay races.

Camp assemblies will take place Monday evening and Tuesday, Wednesday and Thursday afternoons. Campfire programs are scheduled Monday through Wednesday nights with a dance set for Thursday night. 

Each year, the assemblies feature presenters from organizations around the state who provide demonstrations for the campers. Past presenters have included the Oglebay Good Zoo; the state Division of Natural Resources’ (snake presentation and mechanical deer and turkey demonstrations); DEP Division of Air Quality (energy efficiency demonstration); DEP Dive Team; and the state Division of Forestry (fire dog demonstration).

Camp counselors and leaders will include dedicated and knowledgeable employees from the DEP, DNR, Division of Forestry and the West Virginia University Extension Service. For more information and application forms, please contact Diana Haid at 304-926-0499, Ext. 1114 or email diana.k.haid@wv.gov .

For youth ages 14-18, the state Conservation Camp at Camp Caesar in Webster County is scheduled for June 10-15. The camp is sponsored by the West Virginia Conservation Agency.

For more information, go to www.wvconservationcamp.com.

U. S. Supreme Court Rules Logging Road Runoff Not Subject To NPDES Permitting

    EPA properly interpreted its regulations when it concluded that NPDES permits are not required for runoff from logging roads, even if the storm water runs through a man-made ditch, the U.S. Supreme Court decided. But some justices questioned whether courts should be deferring to administrative agencies’ interpretations of their own rules, dicta that will doubtless encourage many attorneys to make exactly that argument. 

The Northwestern Environmental Defense Center had challenged the state of Oregon’s decision to allow logging companies to rely on best management practices, rather than permits, to control storm water runoff. Oregon’s position was based on its, and EPA’s, interpretation of the “Silvicultural Rule.”  At the time the lawsuit was filed, the Silvicultural Rule listed certain types of forest industry activities that require NPDES permits, but allowed an exemption for “road construction and maintenance from which there is natural runoff.”  40 C.F.R. §122.27(b)(1).  The NEDC challenged EPA’s interpretation of the Rule, arguing (among other things) that runoff in manmade channels was not natural runoff.

The Court initially addressed, and resolved in the NEDC’s favor, questions relating to the whether the NEDC properly brought its lawsuit under 33 U.S. §1365 (citizen suits) rather than §1369(b) (appeals of agency rules), and whether EPA’s revisions to the Silvicultural Rule in November 2012, a few days before oral argument, had mooted the NEDC’s suit. After giving the NEDC these two preliminary procedural wins, the Court agreed with EPA that it was reasonable to exempt logging road runoff from NPDES permitting. The Court noted that logging is the harvesting of raw material rather than manufacturing, and that EPA’s interpretation had not changed from prior practice and was a post hoc justification in response to litigation.

            The decision by the Supreme Court was not unexpected.  What is intriguing are statements by Chief Justice Roberts and Justices Alito and Scalia that it is time to reconsider judicial deference to agencies’ interpretations of their own rules.  Justice Scalia noted that under Chevron U.S.A., Inc. v. Natural Resource Defense Counsel, Inc., 467 U.S. 837 (1984) the courts defer to the agency interpretations of legislation, which gives Congress an incentive to clearly explain what it intends in its enactments. In contrast, giving deference to agencies to interpret their own regulations under Auer v. Robbins, 519 U.S. 452 (1997) encourages vague regulations that leave the promulgating agency with the greatest latitude to interpret the rule as it sees fit.  Given Justice Thomas’ similar opinion expressed in another case, it appears that at least four justices are willing to reconsider Auer.  We’re certain to see petitions soon asking the Court to do just that.

Decker v. Northwestern Environmental Defense Center, No. 11-338

Georgia-Pacific West, Inc. v. Northwest Environmental Defense Center, No. 11-347

The West Virginia Land Stewardship Corporation Act

  

The West Virginia Legislature is considering adoption of the Land Stewardship Corporation Act,  SB 342 and HB 2590, in order to promote  the productive reuse of idle and underutilized commercial, industrial, and mining properties. Many sites in West Virginia are subject to long-term remediation obligations that make them unattractive to buyers.  The LSCA is intended to make them more palatable to developers  in the following fashion:

The Voluntary Land Stewardship Program would allow remediation parties and owners of sites which have been remediated or closed under a state or federal environmental program (including brownfields, underground storage tanks, closed landfills, open dumps, hazardous waste sites, and former mining sites), upon payment of an appropriate fee, to transfer to the Land Stewardship Corporation the responsibility for certain site maintenance and remediation obligations.  Site owners could retain ownership while contracting with the Corporation to assume long-term duties, such as groundwater monitoring or landfill cap maintenance, that are required under an environmental remediation program. 

      The State Certified Sites Program would establish an inventory of sites that are ready for redevelopment and/or construction within twelve months and certify them as “project-ready” for a specific industry profile in order to enhance economic development efforts within West Virginia.  The Board (see below) can issue a site certification if it determines that the decision ready document has been prepared and completed in accordance with the requirements that are otherwise to be established by the Land Stewardship Corporation.  Proposed W.Va. Code §31-21-9. 

            A Land Bank Program would assist State and/or local government efforts in economic development efforts by accepting formerly used or developable properties into the bank and preparing the properties so they can be conveyed to other parties to locate or expand businesses and create or retain jobs in the State. 

A Non-Profit Corporation would be established provide for the long-term operation and maintenance of certain sites.  Oversight would be provided by a Board of Directors appointed by the Governor.  Liabilities, including any environmental liabilities, would not pass to the Corporation by its acquisition of title.  WV DEP would retain all of its rights with regard to access to contaminated property held by the Corporation, and the Corporation may not transfer contaminated property until DEP determines that any immediate threats are remediated and/or eliminated

Where sorts of sites might benefit?  Here's one that the DEP  has just  given notice of::

Pennzoil Quaker State Co., (dba Shell Oil Products) is working with the West Virginia Department of Environmental Protection to remediate property along State Route 36, near Wallback in Clay County.

 Pennzoil has entered the Stockley (Valley Fork) Station into the DEP’s Voluntary Remediation Program (VRP). The 0.75-acre facility is believed to have been constructed by Eureka Pipeline Co. and contains three buildings (a pump building, a driver building, and an office building) and two above-ground storage tanks (ASTs). The site is an active oil gathering facility, where crude oil from nearby production wells is transferred to the ASTs, with the stored oil periodically transferred to a pipeline which runs through the area.
 Pennzoil is working with the DEP’s Office of Environmental Remediation (OER) to address environmental conditions at the site which may have resulted from historic operations at the facility.
 The OER’s voluntary remediation agreement with Pennzoil includes provisions for identifying human health and ecological risks associated with potential future uses of the site in order to establish appropriate cleanup standards.
 A final report will be submitted to the OER for review to confirm that work meets all applicable remediation standards.
 The OER encourages voluntary clean-ups of contaminated sites, as well as redevelopment of abandoned and under- utilized properties, in the hope of counteracting the lack of growth on sites with contamination or perceived contamination. The OER sets applicable remediation standards and confirms that the site maintains these standards.
 Typical DEP enforcement actions, as well as liability under environmental laws, are limited while sites are being remediated. The Voluntary Remediation Program gives developers the ability to redevelop sites with existing industrial infrastructure at a lower price, and provides financial incentives to invest in Brownfields.
 Questions should be directed to either Pasupathy Ramanan, WV DEP-OER, 2031 Pleasant Valley Road, Fairmont, WV 26554
(304) 368-2000 ext. 3730 or to Steven Stinger, Project Manager, URS Corporation, 12420 Milestone Drive, Suite 150, Germantown, MD 20876 (301) 820-3149.