Sierra Club, Highlands Conservancy Threaten Suit Over Dunkard Creek

Ben Adducio of WV Public Radio reports that the Sierra Club and West Virginia Highlands Conservancy have announced an intention to sue the state over the golden algae bloom that killed biota in Dunkard Creek last fall. Here's Ken Ward's story on the 60 day notice of intent to sue they sent to Consol. The 60 day notice is required under the Clean Water Act before a citizen suit can be filed. If the state begins an enforcement action in that time, the citizen suit is precluded.

Global Warming Not Contributing to Hurricane Numbers

Anthony Watts reports on a new study that concludes there is no sign of the effects of anthropogenic global warming in the number or intensity of hurricanes. The report, by the World Meteorological Association, reached this conclusion:

. . . we cannot at this time conclusively identify anthropogenic signals in past tropical cyclone data.

That's a big deal, because for years the media has repeated the mantra that global warming will inevitably lead to more and stronger hurricanes. That hasn't occurred. For a fuller discussion, I urge readers to follow the link to Watts' story, and to look at his website generally. It's probably the most visited of the skeptic sites,and very well done. There are good comments as well, and occasionally some helpful give-and-take between believers in, and skeptics of, AGW. Just be careful not to use the word "robust" if you decide to participate.

State Moves Ahead on Pollution Reduction to Protect Chesapeake Bay

Ry Rivard has a nice article in the Charleston Daily Mail on the politics of the Chesapeake Bay clean up and its potential effect on West Virginia farmers. In order to protect the Bay, all the dischargers along the Bay's tributaries will have to cut back discharges. That means farmers will have to use less fertilizer and keep cattle out of streams, suburban homeowners will need to use less lawn fertilizer, and cities will have to control combined sewer overflows and sewage treatment works better. It's a tough chore to get everyone to ratchet back, but it's for a good cause.

Each state is making its own cuts in nitrogen and phosphorus to meet the cap assigned to the state. In West Virginia, government agencies like the Agriculture Department, Forestry Division and DEP are working on improving the models that predict the effect of activities that are intended to reduce nutrient loading. They'll use the models to assign pollution reduction limits. Theresa Kuhn (hope I spelled her name right) is heading up this process for the DEP.

EPA Intends To Delay Emissions Controls On Greenhouse Gas Sources

Lisa Jackson, EPA Administrator, announced that EPA will be delaying imposition on greenhouse gas limits. This was issued in response to the letter from 8 Democratic senators advising her that EPA does not have the authority to regulate GHGs, except for mobile sources. Much as I'd like to agree, I'm not certain how the senators came up with that position, given that they support the EPA's endangerment finding. If they support the endangerment finding, EPA is supposed to regulate GHGs at the statutory level.

Here's EPA's summary of Ms. Jackson's letter:

WASHINGON – U.S. EPA Administrator Lisa P. Jackson issued a letter responding to a letter sent to her the evening of February 19 by eight U.S. Senators asking about the agency’s plans for 2010.

In the letter, the administrator outlines several of the decisions she has made for 2010-2011:

· No facility will be required to address greenhouse gas emissions in Clean Air Act permitting of new construction or modifications before 2011.

· For the first half of 2011, only facilities that already must apply for Clean Air Act permits as a result of their non-greenhouse gas emissions will need to address their greenhouse gas emissions in their permit applications.

· EPA is also considering a modification to the rule announced in September requiring large facilities emitting more than 25,000 tons of greenhouse gases a year to obtain permits demonstrating they are using the best practices and technologies to minimize GHG emissions. EPA is considering raising that threshold substantially to reflect input provided during the public comment process.

· EPA does not intend to subject smaller facilities to Clean Air Act permitting for greenhouse gas emissions any sooner than 2016.


Full text of the letter: http://epa.gov/oar/pdfs/LPJ_letter.pdf

Alternative Energy Not Here Yet

The Wall Street Journal has a nice explanation by Michael Totty of why it may be a while before alternative energy sources and products will be developed in any significant fashion. All of them are promising, but not in the short run.

ORSANCO Announces Expedited Water Quality Standard Review

The Ohio River Valley Water Sanitation Commission (ORSANCO), which sets standards for water quality on the Ohio River, has announced that it will be considering four changes to its Pollution Control Standards, the equivalent of water quality standards in WV. These are issues that are deemed to be of sufficient importance that they merit consideration before the regular triennial review commences in March of 2011. Here are the 4 issues:

Design Flow for Human Health Criteria – In an apparent oversight, the Standards do not currently specify a design flow for criteria in Sections IV.C.1, IV.C.2, and IV.C.3.
This presents difficulties for NPDES permit writers in deriving limits. Use of the seven
day ten year low flow would be proposed.

Total Dissolved Solids- Criteria for total dissolved solids were omitted from the
Standards in a previous review when the criteria were rearranged to differentiate
between those adopted to protect human health and those adopted to protect aquatic
life. Elevated levels of total dissolved solids on the upper Ohio River the past two years
have suggested a need to restore the criteria. Restoration of the drinking water criteria
(500 mg/L monthly average; 750 mg/L maximum) would be proposed. Criteria for
aquatic life protection might also be considered.

Selenium- Criteria for selenium in the current Standards were adopted by US EPA in
the 1980s, but are now considered out of date. US EPA is in the process of adopting
new criteria; the revised criteria are expected to be available in 2010. Adoption of the
US EPA criteria (assuming that they are available and acceptable to the Commission)
would be proposed.

Use of Variance Procedure- Currently, the Variance Procedure established in Section
VIII of the Standards applies only to requirements in Section V. Meanwhile, the
prohibition of mixing zones for Bioaccumulative Chemicals of Concern in Section VI sets
a requirement that may not be consistently attainable with current control technology.
The NPDES Subcommittee has suggested that temporary variances to this requirement
be considered; this would require a revision of the Standards to allow variances to
Section VI. Such variances would be for the life of the current permit, and would
include alternative limits that would be attainable by current technology


The review will begin with a public comment period. Comments on the specified portions of
the Standards will be accepted from now until April 16, 2010. All comments received on the
specified matters will be considered by the Commission; any comments received on other
portions of the Standards will be deferred for consideration in the next regularly scheduled
review, which will begin in March, 2011. After considering all comments received, the
Commission will determine whether or not to go forward with any proposed revisions at its
June, 2010 meeting. Proposed language for any revisions to be considered for adoption will
be presented for public comment at workshops and hearings in August, with final action by
the Commission anticipated in October. Should the Commission not elect to go forward with
proposed revisions at that time a notice to that effect will be posted on this web site

New Rules Adopted for Internal Combustion Engines

EPA recently adopted new rules for large stationary reciprocating internal combustion engines. Here is what Anne Blankenship reports.


On February 17, 2010, EPA issued a final rule that will require reductions of emissions of toxic air pollutants from existing diesel powered stationary
reciprocating internal combustion engines (RICE). Operators of existing stationary diesel engines will be required to:

- Install emissions control equipment that would limit air toxics emissions by up to
70 percent for stationary non-emergency engines with a site rating greater than
300 HP,
- Perform emissions tests to demonstrate engine performance and compliance with
rule requirements, and
- Burn ultra-low sulfur fuel in stationary non-emergency engines with a site rating
greater than 300 horsepower.

The fact sheet for the final rule: http://www.epa.gov/ttn/oarpg/t3/fact_sheets/rice_neshap_fs_021710.pdf

The final rule: http://www.epa.gov/ttn/oarpg/t3/fr_notices/rice_neshap_021710.pdf

This final rule has not be published in the Federal Register. It will be effective 60 days after it is published.


Anne C. Blankenship
Robinson & McElwee PLLC