Energy and Environment Monitor

The Problem With Imposing Monthly Effluent Limitations on Non-Continuously Discharging Outlets

          Currently, WVDEP's practice regarding the regulation of non-continuous discharges from on-bench outlets is to test the outlets sporadically, sometimes only once or twice per month or less.  The frequency of testing is to be expected; after all, non-continuous discharges do not, as their name implies, provide a continuous discharge from which daily samples may be drawn.  Depending upon precipitation and other factors, an on-bench outlet may only produce discharge a couple of times per month.  The problem for coal operators arises from DEP's imposition of monthly average limits on discharges from on-bench outlets.  In the event that random sampling reveals a violation of the monthly average limit, the operator would be penalized for thirty separate violations, as though the outlet had been discharging continuously for the entire month at that level. 

From a practical standpoint, it makes no sense to impose a limit, which is intended to reflect acceptable pollutant levels over extended periods, e.g. over a month, where the discharge being regulated only occurs non-continuously. There is significant potential that an unrepresentative sample may subject a permit holder to thirty days of violation when there was only one violation, when the flow provided enough volume to measure, on the day when the sample was taken.  Daily limits are a more accurate and fair manner of measurement for WVDEP to regulate non-continuous discharges in coal NPDES permits. These daily limits are sufficient to protect water quality and are consistent with the inclusion of only maximum effluent limits in non-coal NPDES permits for non-continuous discharges. Accordingly, all proposed monthly average limits should be deleted from permits that relate to on-bench outlets with non-continuous discharges.

           Setting aside questions of pragmatism and common sense, the legal foundation for this practice is also questionable.  The state Administrative Procedures Act (“APA”) requires the Environmental Quality Board to reverse, vacate, or modify any DEP action, which is arbitrary or capricious.  Imposing monthly average limits on discharges that flow non-continuously in response to precipitation is inherently arbitrary.  Moreover, state and federal NPDES regulations require that only continuous discharges have both daily maximum and average monthly limits.  See 40 CFR 122.45(d); 47 CSR 30-7.3.  Fourth Circuit case law also supports this position. In Chesapeake Bay Foundation, Inc. v. Gwaltney of Smithfield, Ltd., the Court held that EPA regulations provide for monthly average permit limits only for pollutants that are discharged continuously.  With non-continuous discharges, the rules do not require or even mention the concept of permit parameters stated as “monthly averages” as it is described in the continuous flow subsection.  Thus, there is no legal authority for imposing monthly average limits on discharges that flow non-continuously in response to precipitation.

            Given the lack of authority to impose monthly average limits on non-continuous discharges, WVDEP should modify its rules to halt this unfair practice, or the legislature could step in and provide clarification. 

This article was co-authored by Chris M. Hunter and Donnie Adkins, Jackson Kelly PLLC. For more information on the authors see (Hunter) here and (Adkins) here.

Hazardous Waste Recycling in West Virginia

            On October 14, 2008, the West Virginia Legislative Rule-Making Review Committee approved amendments to West Virginia’s Hazardous Waste Management System Rule, 33 CSR 20.  The amendments adopt by reference federal regulations at 40 CFR §261.6 in effect as of June 1, 2008, pertaining to requirements for recyclable materials with certain modifications.  The modifications are modeled after Vermont’s law and include standards applicable to hazardous waste recycling at off-site facilities and hazardous waste recycling activities in West Virginia.

The amendments would promote recycling by allowing “staging,” which is defined as the temporary placement of off-site generated recyclable materials within a recycling facility for no more than three days.  A hazardous waste recycling facility would be required to satisfy the requirements applicable to hazardous waste recycling activities and generators of hazardous waste as well as financial requirements by either maintaining a closure cost estimate that meets federal requirements or establishing financial assurance in accordance with federal requirements.  Placement of recyclable materials for longer than three days would be considered storage.  Owners and operators who store recyclable materials before they are recycled would be subject to hazardous waste permit requirements and all applicable hazardous waste regulations.

            The amendments would also require any residual material resulting from a recycling process be evaluated to determine if it is a hazardous waste.  The amendments would require any facility to obtain a hazardous waste permit if it treats hazardous waste without recycling or treats hazardous waste prior to recycling.  However, generators that treat hazardous waste in containers or tanks that comply with federal requirements would not need a hazardous waste permit for that treatment activity.  Owners and operators of facilities of hazardous waste management units that recycle hazardous waste would be subject to the same standards as owners and operators of hazardous waste treatment, storage, and disposal facilities.

            The amended Rule, 33 CSR 20, will be considered by the West Virginia Legislature in early 2009.  If adopted by the Legislature, the amended Rule will become law sometime next year and serve to promote hazardous waste recycling in West Virginia.  For additional information on the amendments to West Virginia’s Hazardous Waste Management System Rule, contact Gale Lea Rubrecht at 304-340-1200 or galelea@jacksonkelly.com. 

This article was authored by Gale Lea Rubrecht, Jackson Kelly PLLC. For more information on the author see here.

USEPA Proposes Technology-Based Effluent Limits for Construction Sites

              On November 19, 2008, USEPA sent to the federal register a proposed rule to control stormwater discharges from construction sites. The proposed rule is intended to work in concert with existing state and local programs, adding a technology-based  “floor” that establishes minimum requirements that would apply nationally.  The proposed rule would require all construction sites to implement a range of erosion and sediment control best management practices (BMPs) to reduce pollutants in stormwater discharges.

Construction sites disturbing ten or more acres at a time would also be required to install sediment basins to treat their stormwater discharges.  In addition, if sites 30 acres or larger are located in areas of the country with high rainfall intensity and soils with a high clay content,* their stormwater discharges would be required to meet a numeric limit on the allowable level of turbidity (13 NTUs).  The turbidity limit is intended to remove fine-grained and slowly-settling or non-settleable particles contained in stormwater.  Particles such as clays and fine silts contained in stormwater discharges from construction sites typically cannot be effectively removed by conventional stormwater BMPs (such as sediment basins).   In order to meet the proposed numeric turbidity limit, USEPA advises that many sites would need to use chemical treatment and filtration of their stormwater discharges.  The turbidity limits will not apply, however, in the event a storm event causes a pond to overflow if the pond has been designed, constructed and operated to contain the runoff from a 2 year, 24 hour storm event. 

This article was authored by Robert G. McLusky, Jackson Kelly PLLC. For more information on the author see here.

* These requirements apply to construction activities located at a site with 10 percent or greater by mass of soils less than 2 microns in diameter that has an annual rainfall erosivity factor (R factor) of 50 or higher as defined by the Revised Universal Soil Loss Equation (for construction activity located in Alaska or a U.S. territory where the R factor applicable to the activity has not been calculated, the 30-year average total annual precipitation of 20 inches or more shall be used in place of the R factor).

Final EPA Rule to Clarify EPCRA Reporting of Chemical Mixtures

          After 10 years, on November 3, 2008 (73 FR 65451-65484) EPA  finalized changes to the Emergency Planning Notification, Emergency Release Notification and Hazardous Chemical Reporting regulations that were proposed on June 8, 1998 (63 FR 31268). The final rule is effective on December 3, 2008.

          Title III of SARA (EPCRA) establishes authorities for emergency planning and preparedness, emergency release notification reporting, community right-to-know reporting, and toxic chemical release reporting. The implementing regulations for emergency planning, emergency release notification and the chemicals subject to these regulations (Extremely Hazardous Substances) are codified in 40 CFR Part 355. The implementing regulations for community right-to-know reporting (or hazardous chemical reporting) are codified in 40 CFR part 370.

 

          The November 3, 2008 final rule:

• Finalizes some of the proposed revisions on applying threshold quantity and the reporting of mixtures under EPCRA sections 311 and 312;
• Removes the Tier I and II inventory forms and instructions from the CFR, as well as making some minor changes to the forms and instructions; and
• Codifies certain existing policies and interpretations in 40 CFR parts 355 and 370.
• Rewrites the 40 CFR Parts 355 and 370 regulation in plainer language renumbering and re-organizing the sections and adds tables for clarification of certain reporting requirements.

          The most important change is the first to the provisions regarding mixtures of chemicals when determining if threshold quantities are met for regulatory applicability and the reporting requirements. For facilities that have only pure chemicals on site, determining if the total amount of a hazardous chemical is at or above the reporting threshold is straightforward. However, in many cases, facilities have mixtures that contain hazardous chemical components, including both extremely hazardous substances (EHSs) and hazardous chemical components which are not extremely hazardous substances (non-EHSs.)

         

          Three changes regarding mixtures were made by this final rule:

(1) Adding a provision to clarify that, when determining the total quantity of an extremely hazardous substance (EHS) present at a facility, the quantity of that substance present in a mixture must be included even if the total quantity of that particular mixture is also being counted toward the threshold level for that mixture;

(2) Adding a provision for applying the threshold quantity to a hazardous chemical component in a mixture when that hazardous chemical component is not an EHS; and

(3) Adding a provision for applying the threshold quantity to a non-EHS hazardous chemical when that chemical is present both by itself and as a component in a mixture.   

               (1) The prior rule provided that in determining whether a reporting threshold for an EHS has been met or exceeded, the owner or operator of a facility shall aggregate the quantity of the EHS present as a component in all mixtures at the facility and all other quantities of the EHS present at the facility.

         

          The Agency amended the regulations to clarify that when determining the total quantity of an EHS present at a facility, the quantity present in a mixture must be included even if the total quantity of that particular mixture is also being counted toward the threshold level for that mixture. For example, a facility has 15,000 pounds of a hazardous chemical mixture which contains 6,000 pounds of sulfuric acid, an EHS. Although the facility may report this mixture on the Tier II form as a mixture since it is above the reporting threshold of 10,000 pounds for a hazardous chemical, the facility must also include the amount of the sulfuric acid in this mixture when determining the total quantity of the sulfuric acid present throughout the facility.

         

          The argument for this change to include the specific quantity of the EHS was the need to assure that emergency responders do not unknowingly encounter a mixture containing an EHS component. The argument against the change was that EHS would be “double-counted”, increasing the reporting burden on large facilities. Additionally, the EHS component of a mixture often does not exhibit the same hazardous properties as it does in its pure form, especially when present in a mixture at low concentrations.

           

          EPA agreed with the importance of specific EHS quantities in mixtures to enable proper community planning for emergencies involving EHSs, and to protect emergency responders finding that the additional reporting burden was outweighed by the need to protect emergency responders. EPA also agreed that a hazardous component may not exhibit the same hazardous properties of the pure chemical when present in a mixture at low concentrations. For this reason, EPA established a de minimis limit (1 percent for hazardous chemicals and 0.1 percent for carcinogens) below which the component in a mixture need not be counted toward the threshold quantity.

               

          (2) The second revision is the addition of a provision to determine if the reporting threshold has been met or exceeded for mixtures that contain non-EHS hazardous chemical components.  Flexibility is required to accommodate the situation when a site may only have MSDSs for mixtures.  The facility has the option to either add up all the amounts of each non-EHS hazardous chemical component present throughout the facility or consider the total quantity of the mixture to determine whether the total quantity equals or exceeds the reporting threshold.

          

          Once it is determined that the reporting threshold is met or exceeded for either the non-EHS hazardous chemical component or the mixture, the facility may report the quantity of non-EHS hazardous chemical component or the mixture itself. The table in §370.14(a) states these options. In some cases, the OSHA regulations may require a facility to prepare or have available an MSDS for the mixture and/or its hazardous chemical components, so EPA added a provision for consistency in MSDS (§ 311) and inventory reporting (§312). This means that if the facility owner or operator decides to report a mixture under §311 by submitting an MSDS for the mixture, then the facility owner or operator should also report that mixture under §312 and not report its hazardous chemical components, unless the facility can show that it is not practicable to do so. EPA wants the MSDS information to correspond with the inventory information to ensure consistency in the qualitative and quantitative information received regarding the hazards of chemicals stored on site.

         

          The new rule removes the Tier I and Tier II inventory forms and instructions from the Code of Federal Regulations, in order to make it easier for the Agency to make minor changes in the forms without having to go through the entire rulemaking process. The Tier I and Tier II forms and instructions are available on the EPA’s web site at http://www.epa.gov/emergencies.

         

          Even with this recent change to clarify the regulations, EPCRA reporting is complicated; you may contact Barbara D. Little at (304) 340-1355 or blittle@jacksonkelly with questions.

         

          This article was authored by Barbara D. Little, Jackson Kelly PLLC. For more information on the author see here.

Report Names the World’s Worst Pollution Problems

     On October 27, 2008, two international environmental groups -- U.S.-based Blacksmith Institute and Green Cross Switzerland -- issued a Top Ten list of the world's worst pollution problems.  The report addresses the role of pollution as a contributing factor to death and disability in the world and highlights the disproportionate effects on children's health.  Rather than focusing on specific locations, this report gives an overview of significant pollution threats humans face throughout the world.

     The Top Ten appear in a report titled, "The World's Worst Pollution Problems: The Top Ten of The Toxic Twenty."  The report is the result of an analysis of more than 600 sites in Blacksmith's database of polluted places as well as from nominations by the report’s listed environmental, science and public health experts.

     The Top Ten includes both commonly discussed pollution problems like urban air pollution and more overlooked threats like car battery recycling.  The problems included in the report are claimed by the report to have a significant impact on human health worldwide and result in death, persistent illness, and neurological impairment for millions.  The report concludes that many of these deaths and related illnesses could be avoided with affordable and effective interventions.

     The Top Ten list, unranked within the report, was listed as follows:

• Indoor air pollution

• Urban air quality

• Untreated sewage

• Groundwater contamination

• Contaminated surface water

• Artisanal gold mining

• Industrial mining activities

• Metals smelting and other processing

• Radioactive waste and uranium mining

• Used lead-acid battery recycling

     A little known though serious environmental health problem arises from the occupation of Artisanal mining, which refers to mining activities that use rudimentary methods to extract and process minerals and metals on a small scale.  Artisanal miners also frequently use toxic materials in their attempts to recover metals and gems.  There are an estimated 10-15 million Artisanal Miners worldwide who mine for gold.  These miners use mercury to form an amalgam with the gold contained in mined soil.  That amalgam is later burned; evaporating the mercury while leaving behind gold.  The evaporated mercury is extremely toxic if inhaled and then quickly condenses and finds its way into local water supplies, where it may either be ingested directly by humans, or bio-accumulate in fish, which in turn are eaten by humans.  An estimated one third of global mercury emissions come from these activities, yet the problem is largely unknown.

     The report also includes a second list of ten additional environmental problems that are claimed in the report to be serious in scope and effect, though not to the extent of the Top Ten list.  The second ten list is as follows:

•Abandoned Mines

•Agrotoxins and Persistent Organic Pollutants (POPs)

•Arsenic

•Cadmium

•Chromium

•Coal Power Plants

•Garbage Dumps

•Industrial Estates

•PCBs

•Old and Abandoned Chemical Weapons

•Oil Refineries and Petrochemical Plants

     While some of the facts and findings of this report may be questioned or challenged by compelling facts or contradictory data, it is apparent that the report identifies some extremely serious environmental health problems around the world.

     To obtain a download copy of the report The World’s Worst Pollution Problems, see the following web site:  http://www.worstpolluted.org/

     This article was excerpted from the report The World’s Worst Pollution Problems and other publically available information, and was authored by Rick Wilson, Acacia Environmental Group LLC.

     This article was authored by Rick Wilson, Acacia Environmental Group LLC. For more information on the author see here.

EPA –EAB Power Plant Carbon Emission Limitation Decision

            Deseret Power is a regional generation and transmission cooperative in Utah meeting the power requirements of its six member retail systems, and selling surplus power to municipalities, power marketers and other wholesale electric systems in six states. On Thursday, November 13 the Environmental Protection Agency’s (“EPA”) three judge Environmental Appeals Board (“EAB”) reached a decision regarding EPA’s issuance of a prevention of significant deterioration (“PSD”) permit for Deseret Power’s existing Bonanza Plant to construct a new waste-coal-fire generating unit along the Utah-Colorado border near Bonanza, Utah.

The EAB judges ruled that EPA regional officials did not provide an adequate reason for not imposing carbon dioxide "best available control technology" limits on the Deseret plant. The EAB remanded the EPA’s previous permit decision back to the agency with instructions that the agency "reconsider whether or not to impose" such a limit.

The decision could potentially have a wide spread impact on coal fire power plants throughout the country. One way to resolve the carbon emission problem is carbon capture and storage (“CCS”) technology that pumps the carbon underground rather than emitting it into the atmosphere.  However, CCS technology is still being perfected. There is little doubt it will have a dramatic impact on reducing the level of carbon emissions from plants but the open question is: When will it be ready for implementation?

This article was authored by Donnie L. Adkins, Jackson Kelly PLLC. For more information on the author see here.

New York and New England States Cite Atmospheric Mercury Deposition from Other States as Primary Cause of Adverse Mercury Water Quality Levels

October 28, 2008 New York and the New England States (Connecticut, Maine,  Massachusetts, New Hampshire,  Rhode Island, and Vermont  coordinated by the New England Interstate Water Pollution Control Commission “NEIWPCC” ) filed a petition under the non-point source control provisions of  §319(g) of the Clean Water Act (33 USC §1329 ) requesting that  EPA convene an interstate conference to address contributions of airborne mercury emissions that upwind states are allegedly making to downwind water quality. The petition asserts that the following "out-of-region" states are the most significant contributors of airborne mercury that is adversely affecting water quality:

Pennsylvania                 21.7%

New Jersey                  5.6%

Ohio                             5.5%

West Virginia                3.9%

Maryland                       3.7%

Michigan                       2.0%

Virginia                        1.5%

Indiana                        1.3%

Kentucky                     1.2%

North Carolina             1.1%

Illinois                          0.9%

                                           

Section 319(g) is part of the CWA nonpoint source management program applicable to States implementing an approved §319 nonpoint source management program. If water quality standards in a State are not being met due to pollution from non-point sources in another State, such State may petition the EPA Administrator to convene, and the EPA shall convene, a management conference of all States which contribute significant pollution resulting from nonpoint sources in another State(s). The conference’s purpose “shall” be to forge an agreement to reduce the sources of nonpoint source pollution from the source State(s). (The statutory language is mandatory)  Of significance is that §319(g) specifically provides that citizen suits pursuant to §505 CWA (33 USC §1365) are not available to force the Administrator to convene a requested conference. If States reach agreement through such conference, the management programs of the States which are parties to such agreements and which contribute significant pollution to waters of other States not meeting applicable water quality standards will be revised to reflect such agreement.  EPA has identified atmospheric deposition as a type of non-point source water pollution.

This article was authored by Barbara D. Little, Jackson Kelly PLLC. For more information on the author see here.

Kentucky’s First-Ever Comprehensive Energy Plan

Kentucky Governor Steve Beshear, along with Energy and Environment Cabinet Secretary Len Peters, released Kentucky’s first-ever comprehensive energy plan on November 20^th, 2008.  The plan calls for significant reductions in greenhouse gas emissions, the creation of approximately 40,000 jobs tied to energy production, and conservation between now and 2025. Gov. Beshear said the new 150 page energy plan, entitled “Intelligent Energy Choices for Kentucky’s Future”, builds on the efforts of state legislators – such as Rep. Rocky Adkins and Sen. Robert Stivers – who in recent years have crafted legislation designed to invest more in technology, research and energy production.

The plan identifies four principal challenges facing the Commonwealth.  First, Kentucky’s energy use is projected to grow by slightly more than 40 percent between now and 2025.  Second, greenhouse gas (GHG) emissions could be more than 40 percent higher in 2025.  Third, coal-fired power generation in the state will not sufficiently support Kentucky’s coal industry if other states cease purchasing Kentucky coal.  Finally, the nation’s dependence on foreign energy supplies endangers our security.

In order to meet these challenges, the plan establishes seven primary strategies.  First, the plan calls for improving the energy efficiency of Kentucky’s homes, buildings, industries and transportation fleet.  It is expected that energy efficiency will offset at least 18 percent of Kentucky’s projected 2025 energy demand.  Next, the plan calls for an increase in Kentucky’s use of renewable energy.  It is anticipated that by 2025, Kentucky’s renewable energy generation will triple to provide the equivalent of 1,000 megawatts of clean energy while continuing to produce safe, abundant and affordable food, feed and fiber.  Third, the Governor hopes to sustainably grow Kentucky’s production of biofuels.  The goal is for Kentucky to derive 12 percent of its motor fuels demand from biofuels by 2025.

The fourth prong of the plan calls for the development of a coal-to-liquids industry in Kentucky that will use 50 million tons of coal to produce four billion gallons of liquid fuel per year by 2025.  Additionally, the Governor seeks to implement a major and comprehensive effort to increase gas supplies, including coal-to-gas in Kentucky.  It is hoped that Kentucky will produce the equivalent of 100 percent of our annual natural gas requirement by augmenting in-state natural gas production with synthetic natural gas from coal-to-gas processing.  The sixth stratagem calls for research into aggressive carbon capture/sequestration technologies for coal-generated electricity in Kentucky.  The plan is to have evaluated and deployed technologies for carbon management in 50 percent of coal-based energy applications by 2025.  Lastly, the Governor recognizes that nuclear power will be an important and growing component of the nation’s energy mix and he believes that Kentucky must decide whether nuclear power will become a significant part of meeting the state’s energy needs by 2025.

The strategies regarding energy efficiency, renewable energy, and biofuels are designed to help the Commonwealth achieve a proposed “Renewable and Efficiency Portfolio Standard”, whereby 25 percent of Kentucky’s energy needs in 2025 will be met by reductions through energy efficiency and conservation and through the use of renewable resources.  These strategies along with the proposed coal-to-liquids industry, are also designed to help the Commonwealth achieve an “Alternative Transportation Fuel Standard” to help transition away from dependence on foreign petroleum, utilizing fuels such as those derived from biomass and coal, plug-in hybrid vehicles and compressed natural gas.

If enacted, the Governor expects that the plan will provide 30,000-40,000 new Kentucky jobs as a result of a booming diversified energy sector.  He also hopes to achieve energy independence for Kentucky from imported oil.  In addition to producing approximately four billion gallons of liquid fuels from coal annually, the Governor hopes that Kentucky will produce 135 billion cubic feet of synthetic gas from coal, utilizing about nine million tons of coal annually, to augment Kentucky’s natural gas supply.  Moreover, the Governor expects the plan to reduce Kentucky’s net per capita carbon emissions into the atmosphere by 50 percent, while ensuring Kentucky’s economic viability by protecting Kentucky’s coal industry against negative impacts of federally mandated carbon management legislation.

This article was co-authored by Kevin McGuire andRyan Schwartz, Jackson Kelly PLLC. For more information on the authors see (McGuire) here and (Schwartz) here. 

West Virginia Water Use Update

            The West Virginia Water Resources Protection and Management Act (Act) became effective on June 10, 2004.  Authority to implement the Act was placed with the West Virginia Department of Environmental Protection (WVDEP).

The purpose of the Act is intended, among other things, to identify water resources, identify consumptive versus non-consumptive water, identify interbasin transfer of water, provide drought and flood assessment, identify areas of concern and growth areas (resulting in increasing water demand).  The final report to the legislature is to include discussing practices to reduce water withdrawal.  Those water users with withdrawals greater than 750,000 gallons in any month are required to report.  The Act does not restrict withdrawal. 

During November 2008 the WVDEP updated the West Virginia Joint Legislative Oversight Commission on State Water Resources regarding implementation of the Act, which was one of the quarterly reports required by the Act.  The quarterly reporting is to address 1) the survey of water within the State and 2) recommendations.  The WVDEP also is required to submit an annual report.

Each year, large quantity water users are required to certify that their water use did not change by more than 10% of their baseline average. If usage changes in excess of 10%, they must re-register.  Large quantity users currently on file with the WVDEP are scheduled to receive their user certification forms during the first quarter of 2009.  This will be the first time for implementation of the certification provision.

The WVDEP has contracted with MarshallUniversity’s Center for Environmental, Geotechnical and Applied Sciences (CEGAS) to combine several water resources databases and to resolve discrepancies within those databases.  CEGAS will continue to update the databases and provide a data warehouse for the information.  CEGAS also is currently developing a website, which has not been finalized at this time.  Water data from is being collected currently from the West Virginia Geologic and Economic Survey, West Virginia university, Department of Health, Office of Mining and Reclamation and the United States Geological Survey.

            Information on regional coal mine pools is currently being collected.  Mine pools have been identified as a major source of water within the State.  The WVDEP also has identified drilling for natural gas in the Marcellus Shale as a major user of water.  According to the WVDEP, wells in this formation require large amounts of water for development, accomplished by a process called fracing.  They report that water use for fracing is between one million to several million gallons of water per well. The WVDEP is developing a new policy and report form for wells which use more than 750,000 gallons of water within a month for development.

Other data throughout the state is being updated, including installation of two new stream gauges in the western portion of West Virginia and a pilot plan to collect data from new water wells drilled in LincolnCounty.  Additionally, watershed management planning is going to occur in the future.  Two organizations have expressed interest in preparing such plans:  The Greater Cumberland Committee (Mineral County) and Pocahontas County Commission.  The WVDEP will provide training for those organizations selected for plan preparation.

We have seen many areas around the United States develop water use plans or have allowed localized agencies to develop regulations for specific watersheds (Sesquehanna River Basin Commission, et. al.).   Water is important to everyone’s future and staying abreast of new developments and becoming involved in the development of water use policy is critical to our future.

This article was authored by William Chambers, Acacia Environmental Group LLC. For more information on the author see here.

November Coal News

            In the November 2008 issue, Coal News announced that Peabody Energy has entered into an agreement with the government of Inner Mongolia to develop a large surface mine and downstream coal gasification facility.  The facility would produce methanol (which can be used to fuel internal combustion engines), chemicals, or fuel products.  In September, it was announced that the first U.S. plant would be built by CONSOL near Benwood, West Virginia.  Coal gasification can be used to produce syngas, a mixture of carbon monoxide and hydrogen gas, which can be converted into gasoline or diesel.  High oil prices have recently led to increased interest in coal gasification.  The University of Kentucky's Center for Applied Energy Research prepared a July 2007 report on coal gasification.  According to the report, coal gasification becomes economically viable once oil reaches $60 per barrel. 

           In addition to its economic benefits, coal gasification comes with numerous environmental benefits including the reduction of sulphur, nitrous oxide, mercury, and particulate emissions.  Coal gasification is not, however, without environmental concerns.  The gasification cavity can be a source of both gaseous and liquid pollutants which may pose an environmental risk to groundwater in adjacent strata, depending on whether the contaminants can migrate beyond the immediate reactor zone. US tests in shallow coal seams produced significant groundwater contamination, but the deeper European trial showed no detectable effect on groundwater concentrations in surrounding boreholes. It is key for a gasification project site to undergo a robust assessment so that the appropriate operational controls are instituted.  Groundwater concerns can be managed by careful site selection and operation. Deeper location of the underground coal gasification facility is preferrable (200-500 meters below surface).  Regular groundwater monitoring is also necessary.  As with any subsurface operation, the environmental challenges are real but can easily be managed with proper planning and guidance. 

This article was authored by Chris M. Hunter, Jackson Kelly PLLC. For more information on the author see here.