Energy and Environment Monitor

Ninth Circuit Holds Discharges from Logging Road Ditches are “Point Sources” Under CWA, Silvicultural Exemption Does Apply

In Northwest Environmental Defense Center (“NEDC”), et. al. v. Brown, et. al., No. 07-35266 CV-06-01270-GMK (Aug. 17, 2010), the Ninth Circuit Court of Appeals ruled that discharges from culverts associated with logging roads are “point sources” subject to NPDES permitting requirements. NEDC brought Oregon regulators and various timber companies alleging they violated the Clean Water Act (“CWA”) by failing to obtain permits from Environmental Protection Agency (“EPA”) for stormwater runoff that flows from logging roads into systems of ditches, culverts, and channels and is then discharged into forest streams and rivers, ultimately depositing sediment into the streams and rivers. NEDC argued that these discharges are from “point sources” within the meaning of the CWA and that they therefore require permits under the National Pollutant Discharge Elimination System (“NPDES”).

 

Defendants argued that their discharges could not be considered point sources due to exemptions found in the “Silvicultural Rule” and the 1987 amendments to the CWA. Silviculture is the practice of controlling the establishment, growth, composition, health, and quality of forests. The “Silvicultural Rule” (CWA, §502(14)) exempts stormwater discharges resulting from silvicultural activities, which are related to rock crushing, gravel washing, log sorting, or log storage and that are comprised entirely of stormwater runoff uncontaminated by industrial activities, from the requirement to obtain an NPDES Permit. In examining EPA’s application of the rule to logging road for consistency with the CWA, the Court held that the CWA’s definition of “point source” did not depend on whether the pollutant arrived as a result of controlled water use by a person or through natural runoff. If the EPA intended the Rule to exempt silvicultural activities from the definition of point source, irrespective of whether, and the manner in which, the runoff is collected, channeled, and discharged into protected water, then the Court held that the rule would conflict with the CWA. If, on the other hand, the rule only protects stormwater discharges from silvicultural activities where the discharge remains in its natural state—and is not collected as channeled through culverts, ditches, etc.—then the Court held it would not conflict with the CWA. Accordingly, the Court held that the Silvicultural Rule does not exempt from the definition of “point source” discharges of stormwater runoff from logging roads that is collected and channeled in a system of ditches, culverts, and conduits before being discharged into streams and rivers. The practical effect of this holding is that the Silvicultural Rule does not mean much to timbering companies from this point forward (assuming other circuits adopt the Ninth Circuit’s reasoning).

 

Next, the Court considered Defendants’ argument that the 1987 CWA amendments exempted their discharges from the NPDES permitting process. In CWA §402(p), adopted as part of the 1987 amendments, Congress required NPDES permits for the most significant sources of stormwater pollution under “Phase I” regulations, including discharges associated with industrial activity. The Court noted that the Standard Industrial Classifications adopted by EPA classified logging as an industrial activity and rejected Defendants’ arguments that logging roads were not “immediate access roads,” as defined in the Phase I regulations. Citing an earlier decision, the Court stated, “if [logging] activity is industrial in nature, and EPA concedes that it is [see SIC 2411], EPA is not free to create exemptions from permitting requirements for such activity.” Accordingly, the Court held that the 1987 amendments to the CWA do not exempt from the NPDES permitting process stormwater runoff from logging roads that is collected in a system of ditches, culverts, and channels, and is then discharged into streams and rivers. This collected runoff constitutes a point source discharge of stormwater “associated with industrial activity” under the terms of CWA §§502(14) and 402(p).

 

Such a discharge requires an NPDES permit.

 

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

Introduction of House Bill to Amend Clean Water Act to Remove EPA Veto Authority

According to a report from Margaret Bauman in the Seward Phoenix LOG, Rep. Don Young, R-Alaska, recently introduced a bill to remove the U.S. Environmental Protection Agency’s (“EPA”) ability to veto a U.S. Army Corps of Engineers (“Corps”) decision regarding permits under the Clean Water Act. 

 

Recently, EPA proposed to exercise its authority under section 404(c) of the Clean Water Act to "veto" a permit which had already been issued for the Spruce No. 1 Mine by the Corps.  This proposed veto has been the subject of much debate in Central Appalachia as many argue that vetoing a previously issued permit is illegal and, if upheld, will cause irreparable damage to the coal industry. Many in the coal industry have expressed concern that the ability of EPA to change their minds about permits would cause immense uncertainty in the industry and the ability to mine.  This, in turn, would hinder investment in the industry.  The permit holder, Mingo Logan Coal Company, has filed an action in federal court in Washington DC to enjoin EPA from exercising its authority under 404(c) over an already issued permit, arguing that EPA is required to take action prohibiting the specification of particular areas for use as fill sites before a permit has been issued and a project started, as is the case at the Spruce No. 1 Mine. 

 

While the Corps issues permits for placing dredged material and/or fill material into an area defined as a disposal site, EPA can  "prohibit the specification of any defined area as a [fill] disposal site"  if it  determines that   there is an unacceptable adverse impact to municipal water supplies, wildlife, recreation areas, shellfish beds and fishery areas.  Young’s House Resolution 5992 would amend the federal Clean Water Act to remove EPA’s power to restrict the Corps authority to approve fill disposal areas.

 

Citing projects in Alaska which have been shut down or delayed by the EPA, such as a proposed metallic sulfide mine, Young argues that the lack of clear criterion as to what constitutes an unacceptable adverse impact as well as the expertise of the Corps in making these decisions compared to EPA’s lack of expertise support the need for this amendment.

 

The introduction of a bill seeking to remove EPA’s veto authority from an Alaskan Congressman offers support to the coal industry’s argument that EPA’s section 404 veto authority has far-ranging effects, outside of the coal industry.  While the debate over EPA’s veto authority has been centralized in Appalachia to date, it appears that those who support industries outside of coal mining are beginning to take notice. 

 

For more information on Young’s House Resolution 5992, please see Margaret Bauman’s article Proposed Clean Water Act amendments raise hackles from the Seward Phoenix LOG at http://thesewardphoenixlog.com/article/1031proposed_clean_water_act_amendments_raise.

 

This article was authored by Matthew S. Tyree, Jackson Kelly PLLC. For more information on the author see here.

UPDATE: UIC Permitting in "Indian Country;" Tenth Circuit Reverses Previous Holding

    Private lands intermixed with Federal and Indian lands are subject to state jurisdiction for the Safe Drinking Water Act, not Federal jurisdiction arising from geographic nexus to Indian Land.

 

    On May 11, 2009, we reported that the Tenth Circuit held that a section of privately-owned, uninhabited land in New Mexico near, but not within, the Navajo Reservation was subject to Environmental Protection Agency (“EPA”) jurisdiction for purposes of granting UIC permits to a uranium mining operation pursuant to the Safe Drinking Water Act.  Hydro Resources, Inc. v. U.S. Environmental Protection Agency (10th Cir 2009) ("Hydro II").  The Court reversed this ruling on June 15, 2010. This decision could have significant nationwide regulatory implications for any party seeking UIC permits near any Indian reservation or “Indian country.”

 

    The lands are within what is known as a "checkerboard area," where federal, state, Indian and private lands are intermixed. The prior decision confirmed EPA's Land Status Determination finding that the private land was "Indian land" pursuant to EPA's UIC program regulations. The basis for the EPA’s regulation was 18 U.S.C. § 1151, the Indian Major Crimes Act, which defined "Indian country" for the purpose of criminal jurisdiction. The Tenth Circuit had ruled in 2000 (HRI, Inc. v. U.S. Environmental Protection Agency, 198 F.3d 1224 (10th Cir. 2000) ("Hydro I")) that a section abutting the private land at issue was clearly Indian country, and had remanded the issue of the status of the private land to EPA for a final determination. EPA did so, and determined Hydro's private lands to be Indian country, or Indian lands as contemplated by EPA's regulations (40 C.F.R. §144.3). However, EPA had not approved the Navajo Nation's application to assume primary UIC permitting authority over privately held fee lands in the checkerboard area.

 

    Hydro Resources petitioned for rehearing en banc. Hydro intended to engage in mining on its private land that the Court had found to be Indian lands. It had previously obtained a permit from the State of New Mexico for its UIC wells in 1989. New Mexico had sought and obtained from EPA a mandatory "aquifer exemption" for its mining activities because the aquifer would not be used as a source of drinking water. The same aquifer underlies both the private land and the Indian lands clearly subject to federal jurisdiction.

 

    Sitting en banc, the Tenth Circuit reversed its 2009 holding in a 6-5 decision. The majority held that the lands owned by Hydro could not be Indian country, and that the State of New Mexico, not the EPA was the proper regulatory authority, with regard to the UIC wells on Hydro's private lands. The majority opinion (79 pages) relied principally on the U.S. Supreme Court's 1998 decision in Alaska v. Native Village of Venetie Tribal Governments, holding that only Congress has the power to prescribe what lands are Indian country. The decision means that the State of New Mexico will exercise permitting authority on the private land while EPA will do so on the Indian land.

 

    The two dissenting opinions held that because the lands owned by Hydro were close to the Navajo Nation's Church Rock Chapter, the private lands should be subject to the EPA's regulatory jurisdiction, particularly in light of the expected environmental impacts from the mine on the native community. Both dissenting opinions suggested that the U.S. Supreme Court would ultimately address the consequences of this controversial ruling in which 5 states, 4 New Mexico Pueblos and the National Mining Association were friends of the Court and the Navajo Nation was an Intervenor.

 

This article was authored by Gina Guy, Jackson Kelly PLLC. For more information on the author, see here.

EPA Issues Greenhouse Gas Reporting Requirements for Underground Coal Mines and Three Other Source Categories

The U.S. Environmental Protection Agency (EPA) announced on June 29, 2010, that it is finalizing requirements under its national mandatory greenhouse gas (GHG) reporting program for underground coal mines, industrial wastewater treatment systems, industrial waste landfills and magnesium production facilities. EPA intends to use the data from these sectors to “provide a better understanding of GHG emissions” and that the data “will help EPA and businesses develop effective policies and programs to reduce them.”

 

EPA noted that methane is the primary GHG emitted from coal mines, industrial wastewater treatment systems and industrial landfills and that it is more than 20 times as potent as carbon dioxide at warming the atmosphere. The EPA announcement continued to say that the main fluorinated GHG emitted from magnesium production is sulfur hexafluoride, “which has an even greater warming potential than methane, and can stay in the atmosphere for thousands of years.”

 

These affected source categories must begin collecting emissions data on January 1, 2011, and submit initial annual reports to EPA by March 31, 2012.

 

EPA also, in a separate proposed rule, opened a public comment period regarding which industry related GHG information would be made publicly available and which would be considered confidential. All emission data are public under the Clean Air Act, However; some non-emission data may be considered confidential if it relates to information which, if made public, could harm the competitiveness of a business. EPA provided as an example of data that may be confidential data under its proposal information reported by fossil fuel and industrial gas suppliers related to production quantities and raw materials.

 

The GHG reporting program requires suppliers of fossil fuels or industrial GHGs and large direct emitters of greenhouse gases to report to EPA. EPA asserts that collecting GHG data “will allow businesses to track emissions and identify cost effective ways to reduce emissions.”

 

Under the Greenhouse Gas Reporting Program, owners and operators of facilities that are subject to quarterly sampling of mine ventilation systems by the Mine Safety and Health Administration (MSHA) must report emissions from underground coal mines and all other source categories located at the mine for which methods are defined in the rule.  Owners and operators are required to collect emission data; calculate GHG emissions; and follow the specified procedures for quality assurance, missing data, recordkeeping, and reporting. Total annual methane emissions are to be calculated as the sum of quarterly methane that is liberated from ventilation wells and shafts and degasification systems, less the quantity that is collected and destroyed.

 

Each underground coal mine meeting the MSHA threshold must monitor the following parameters for their mine ventilation air:

 

1)   Quarterly volumetric flow rate of gas for each ventilation monitoring point;

2)   Quarterly methane concentration for each ventilation monitoring point;

3)   Quarterly temperature values at the time, location, and conditions for which measurements are made;

4)   Quarterly pressure values at the time location, and conditions for which measurements are made; and

5)   Quarterly moisture content at the time, location, and conditions for which measurements are made.

 

Each underground coal mine using a degasification system (deployed before, during, or after mining operations) must also monitor the following parameters:

 

1)   Weekly volumetric flow of methane liberated from each degasification monitoring point;

2)   Weekly methane concentration from each degasification monitoring point;

3)   Weekly temperature values at the time, location, and conditions for which measurements are made;

4)   Weekly pressure values at the time, location, and conditions for which measurements are made; and

5)   Weekly moisture content at the time, location, and conditions for which measurements are made.

 

For methane liberated from degasification systems, companies are not required to monitor each well. Rather, Continuous Emissions Monitoring Systems (CEMS) may be used to monitor aggregate methane from more than one well, as long as methane from all wells is monitored and the methodology for estimating total emissions from all wells is documented.

 

Each underground coal mine where methane is destroyed or transported offsite for destruction must monitor the following parameters:

 

1)   Continuous volumetric flow of gas at each destruction device or point of offsite transport for destruction;

2)   Continuous methane concentrations of gas at each destruction device or point of offsite transport for destruction;

3)   Continuous temperature values of gas at each destruction device or point of offsite transport for destruction;

4)   Continuous pressure values of gas at each destruction device or point of offsite transport for destruction; and

5)   Continuous moisture content of gas at each destruction device or point of offsite transport for destruction.

 

A 60-day public comment period on the proposed rules will begin when the notice is published in the federal register. For more information on the final rule to add reporting requirements for four source categories, see:

http://www.epa.gov/climatechange/emissions/remaining-source-categories.html, and for more information on the proposal on data confidentiality, see:

http://www.epa.gov/climatechange/emissions/CBI.html 

 

This article was co-authored by Skipp Kropp and Matthew S. Tyree, Jackson Kelly PLLC. For more information on the authors see (Kropp) here and (Tyree) here.

Summersville Hydroelectric Project Receives Low Impact Re-Certification

The Low Impact Hydropower Institute (LIHI) announced that Gauley River Power Partners, Inc. (GRPP or applicant) has submitted an application for re-certification of the Summersville Hydroelectric Project which is located on the Gauley River, in Nicholas County, West Virginia – five miles south of the City of Summersville. Certification by the Institute also makes the power produced from the Summersville facility eligible for other “green” power certification programs.

 

The Federal Energy Regulatory Commission (FERC) issued a 50-year license to the City on September 25, 1992 to develop, finance, construct, own, and operate the 80-megawatte (MW) project.  This project (FERC 10813), as amended and approved by FERC, is the one being considered for low impact hydropower certification.  The project reservoir is Summersville Lake, which the ACOE manages for flood control, low-flow augmentation, and recreation.  Project operation is entirely dependent upon the ACOEs’ operation of the dam and the hydro project is managed as a run-of-the-river facility. 

The Project was certified by LIHI on November 10, 2004 for a five-year term.  In the Applicant’s filing for re-certification they state that nothing about the project has changed that would affect the certifiability of the Summersville Project.

 

Site Description: 

The project is located on the Gauley River in Nicholas and Fayette Counties, West Virginia, between Summersville dam and the upper boundary of the Gauley River National Recreation Area (GRNRA).  The terrain is rugged and characterized by sharp ridges and narrow v-shaped valleys.  The Gauley River does not have a floodplain in the project area. 

 

Project Information: 

The project reservoir is Summersville Lake, which the ACOE manages for flood control, low-flow augmentation, and recreation.  The dam was authorized by Congress in 1938.  It was originally constructed in conjunction with two other dams to control flood waters in the Kanawha basin, a 12,300-square-mile area located in three states.  The dams operated as a system, control flows into the Ohio River.  Summersville dam was built in 1966 at a cost of $48 million (1966 dollars).  It is an earthen structure 393 feet high and 2,280 feet long. 

 

The ACOE operates the dam and controls the rate of water released through the dam.  The hydroelectric project is, in effect, run-of-the-river – generating power only with the flows that the ACOE releases. Hydroelectric project operations are coordinated with the ACOE on a day-to-day and hour-by-hour basis. When water release rates are sufficient, the project generates electricity. 

 

This article includes publically available information, and was assembled by Rachel Shanteau, Acacia Environmental Group LLC. For more information on the author see here.

Residential Homebuilder Settles Clean Water Act Violations in 18 States and D.C. Settlement Affects 161 Construction Sites in Chesapeake Bay Watershed

Hovnanian Enterprises, Inc., a builder of residential homes nationwide, has agreed to pay a $1 million civil penalty to resolve alleged Clean Water Act violations at 591 construction sites in 18 states and the District of Columbia, the U.S. Environmental Protection Agency (EPA) and the U.S. Justice Department announced today. As part of the settlement, the company will also implement a company-wide stormwater compliance program designed to improve compliance with storm water run-off requirements at existing and future construction sites around the country.

“This case is a result of EPA’s effort to protect local waters by vigorously enforcing the nation’s environmental laws,” said Cynthia Giles, assistant administrator of EPA’s Office of Enforcement and Compliance and Assurance. “Without appropriate onsite pollution controls, sediment-laden runoff from construction sites can pollute local waterways. This enforcement agreement will mean cleaner water for hundreds of communities across the country.”

“Restoring and preserving the Chesapeake Bay is one of EPA’s top priorities, and preventing polluted stormwater from entering the bay watershed is vital to keeping it healthy,” said Peter S. Silva, assistant administrator for EPA’s Office of Water. “This enforcement action will help protect the bay by addressing stormwater pollution at the source.”

“This settlement will bring positive change to construction sites in 18 states and the District of Columbia, said Ignacia S. Moreno, Assistant Attorney General for the Justice Department’s Environment and Natural Resources Division. “Harmful storm water run-off from construction sites is something that is easily prevented. The construction industry needs to implement required controls or face the possibility of a federal lawsuit.”

A portion of the settlement helps EPA efforts to protect the Chesapeake Bay, North America’s largest and most biologically diverse estuary. The bay and its tidal tributaries are threatened by pollution from a variety of sources, and overburdened with nitrogen, phosphorus and sediment that can be carried by storm water. A total of 161 Hovnanian construction sites in the District of Columbia, Maryland, Virginia and West Virginia fall within the bay watershed and are covered by this settlement.

The U.S. government complaint, filed simultaneously with the settlement agreement in federal court in Philadelphia, alleges a pattern of violations that was discovered by reviewing documentation submitted by the company, and through federal and state site inspections. The alleged violations include failure to obtain permits until after construction had begun, or failing to obtain them at all. At sites with permits, violations included failure to prevent or minimize the discharge of pollutants such as silt and debris in storm water runoff.

The settlement requires Hovnanian to develop improved pollution prevention plans for each construction site, conduct additional site inspections and promptly correct any problems detected. The company must properly train construction managers and contractors, and will be required to designate trained staff for each site. Hovnanian must also implement a management and internal reporting system to improve oversight of on-the-ground operations and submit annual reports to EPA.

The Clean Water Act requires that construction sites have controls in place to prevent pollution from being discharged with storm water into nearby waterways. These controls include simple pollution prevention techniques such as silt fences, phased site grading, and sediment basins to prevent common construction contaminants from entering the nation’s waterways.

Improving compliance at construction sites is one of EPA’s national enforcement initiatives. Construction projects have a high potential for environmental harm because they disturb large areas of land and significantly increase the potential for erosion. Without onsite pollution controls, sediment-laden runoff from construction sites can flow directly to the nearest waterway and degrade water quality. In addition, storm water can pick up other pollutants, including concrete washout, paint, used oil, pesticides, solvents and other debris. Polluted runoff can harm or kill fish and wildlife, degrade aquatic habitat, and affect drinking water quality.

This settlement is the latest in a series of enforcement actions to address storm water violations from construction sites around the country. Similar consent decrees have been reached with multiple national and regional home building companies.

Along with the federal government, the District of Columbia, the states of Maryland and West Virginia and the Commonwealth of Virginia have joined the settlement. The District and each of the states will receive a portion of the $1 million penalty.

The consent decree, lodged in the U.S. District Court for the Eastern District of Pennsylvania, is subject to a 30-day public comment period and approval by the federal court.

 

For more information on the settlement:

http://www.epa.gov/compliance/resources/cases/civil/cwa/hovnanian.html

 

This article includes publically available information, and was assembled by Rachel Shanteau, Acacia Environmental Group LLC. For more information on the author see here.

Summary Judgment Granted in Subsidence Case

Mingo Logan Coal Company and Arch Coal, Inc. obtained summary judgment in February in the Circuit Court of Mingo County over claims of subsidence that resulted in property damage to a house, and diminution of water quality and quantity.  Plaintiffs filed suit in on April 27, 2007, and alleged the damage to the property occurred in 2003 – fours years before the plaintiffs filed their lawsuit.  The significance of the summary judgment, however, arises from the reliance that the Circuit Court placed in the factual findings made by the West Virginia Surface Mine Board (SMB) over the identical issues litigated before it.

 

On July 21, 2003, the plaintiffs filed a complaint with the West Virginia Department of Environmental Protection (“WVDEP”) asserting that Mingo Logan caused subsidence damage to the plaintiffs’ residence and water loss.  WVDEP initially found no evidence of subsidence and refused to issue any order or notice of violation to the company.  Upon a complaint then filed with the federal Office of Surface Mining, Reclamation and Enforcement, DEP reversed itself and issued an order finding that that Mingo Logan had caused subsidence to the plaintiffs’ property.  Following a year litigating the plaintiffs’ complaint, Mingo Logan, WVDEP, and the plaintiffs participated in a full, two-day evidentiary hearing before the SMB in December, 2006.  Following the hearing, the SMB issued a ruling in favor of Mingo Logan – finding no evidence that Mingo Logan’s mining activities caused subsidence or property damage to the plaintiffs’ property and residence.  Neither the plaintiffs, nor the West Virginia Board of Insurance and Risk Management, which had been joined in the case because it had paid the plaintiffs’ claim of subsidence damage to the house, appealed the SMB’s decision to the circuit court.  Almost five months following the SMB’s decision, however, the plaintiffs did file a new action in Mingo County alleging the same issues decided by the SMB.

 

Based on plaintiffs’ allegations, plaintiffs’ testimony and the prior hearing before the SMB, Mingo Logan and Arch Coal, Inc. moved for summary judgment in the Circuit Court of Mingo County asserting that the plaintiffs’ claims were barred by the statute of limitations and the doctrine of collateral estoppel.  Specifically, defendants asserted that the plaintiffs knew or believed – no later than 2003 – that (1) their property was damaged and they suffered water loss, (2) Mingo Logan mined in the vicinity of their property, and (3) Mingo Logan had caused the property damage and water loss.  Also, the companies asserted that the doctrine of collateral estoppel precluded plaintiffs from re-litigating the issue of whether subsidence occurred on the plaintiffs’ property as a result of Mingo Logan’s mining activities because the SMBalready determined that there was no evidence that defendants caused the plaintiffs’ alleged property damage.

 

The Court granted defendants’ Motion for Summary Judgment on both grounds.  Regarding the statute of limitations the Court found that West Virginia Code § 22-3-25(a) specifically provides that any person having an interest, which is or may be adversely affected may commence an action in the circuit court of the county to which the mining operation is located.  The Court found that the plaintiffs were not required to exhaust all possible remedies prior to commencing their action in circuit court as the statute provides for concurrent jurisdiction with the circuit court.  Moreover, the Court found that WVDEP’s presentation of the plaintiff’s claims before the SMB did not toll the statute of limitations.  Because the Court found the continuing tort doctrine did not apply, the alleged property damage and water loss that occurred in 2003 barred the plaintiffs’ action, which was not commenced until April 27, 2007.

 

With respect to collateral estoppel, the Court found that the hearing before the SMB involved the same evidence as this cause of action.  The plaintiffs testified on their behalf in the hearing before the SMB and over the two days the WVDEP presented testimony through the both through the plaintiffs and expert witnesses named by the plaintiffs in the civil action.  The Court found that collateral estoppel was applicable as the WVDEP represented the plaintiffs during the administrative proceedings and the plaintiffs were actively involved due to their personal testimony in administrative hearings.  The plaintiffs’ current experts also testified on their behalf before the SMB, asserting the same allegations that were asserted in the civil action and presenting identical evidence regarding damages to the plaintiffs’ property.  As such, the defendants are entitled to dispositive relief on the issue of collateral estoppel. 

 

The facts of the case were unusual in that the mining occurred in two separate seams of coal below the plaintiffs’ surface property over two distinct time intervals.  The first mining clearly caused subsidence, but no damage to the residence.  The second event of mining resulted in no observable subsidence because the pillars were intact at the time of a visual inspection in July 2004.  As both the SMB and Circuit Court determined, neither the WVDEP nor the plaintiffs presented a plausible explanation how the damage they claimed could have arisen under the sequence of the mining that occurred.

 

The case is most encouraging, however, for the reliance that the Circuit Court is willing to place in a hearing record developed before an administrative hearing board. Proceedings before a board are usually more informal, and as in this case the opportunity exists to develop a record favorable to a company.  Once that record is established and not appealed, plaintiffs are thereafter precluded from re-litigating the same issues in a circuit court.

 

For more information about this case, contact Blair Gardner at 304 340-1146 or Matt Nelson at 304 340-1244.

 

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

Environmental Groups Seek EPA Takeover of Kentucky Water Program

Four environmental organizations have filed a formal petition asking the U.S. Environmental Protection Agency (“U.S. EPA”) withdraw approval of Kentucky’s National Pollution Discharge Elimination System (“NPDES”) program on the grounds that it inadequately controls discharges from coal mining operations.   The Clean Water Act (“CWA”) vests in U.S. EPA the primary authority to regulate discharges into the nation’s water.  The CWA also, however, permitted states to submit their NPDES programs to U.S. EPA for approval.  Approval by U.S. EPA allows a state to regulate discharges to the waters within its boundaries, with EPA exercising minimal oversight authority.  A petition seeking U.S. EPA’s withdrawal of delegation of a state program is a drastic step effectively requesting the agency to take over regulation of discharges into the state’s waters.  The issues raised in the petition are summarized as follows. 

1. Toxicity testing.  The petition cites to Whole Effluent Toxicity “WET” testing by EPA in West Virginia and Kentucky, claiming that all 8 of the sites sampled in Kentucky exhibited toxicity in excess of State standards. According to page 4 of the petition, EPA conducted the WET testing at sites with conductivity over 1000 uS/cm. It appears that about half the sites had conductivity values over 2,000. Toxicity appeared greater in Kentucky than in West Virginia from similar conductivity levels. The WET test report indicates that EPA took pH measurements at each site, but Table 1 of the report does not include those measurements. 

2. Selenium.   The petition charges that Kentucky has effectively “exempted” the coal industry from the chronic water quality criterion of 5 ppb. The petition urges a requirement that core sampling be required for selenium bearing strata (as is required in certain seams and geographic areas in WV). The petition includes a map with USGS core sampling results across West Virginia and Kentucky as likely hot spots, and on page 15 discusses reported selenium concentrations at one site in eastern Kentucky.  

3. General Water Quality Standards Issues 

a. Conductivity: the petition claims that Kentucky has failed to “enforce its narrative standard for conductivity.”  It notes that the Kentucky standard provides that “total dissolved solids or specific conductance shall not be changed to the extent that the indigenous aquatic community is adversely affected.”  The petition cites the EPA "Pond-Passmore" study as evidence of a strong correlation between benthic impacts and conductivity.  That study, however, “double counted” sensitive mayfly species to the genus level.  Recent work by WVDEP shows that conductivity is a poor indicator of benthic impacts when more conventional benthic matrices are used. 

b. Iron: The petition claims that Kentucky has gutted the chronic criterion for iron by applying it only where there has been demonstrated  

c. Aluminum: the petition claims that Kentucky has failed to adopt an aquatic life criterion despite the fact that coal mine effluent (not necessarily in-stream) concentrations frequently exceed EPA's recommended acute criterion of 750 ug/L and despite the fact that West Virginia has such a standard. 

4. The petition complains about the pace of 303(d) stream listing (the list of "impaired" streams) and the issuance of Total Maximum Daily Loads (“TMDL's”) to achieve water quality standards. 

5. The petition contends that Kentucky must make someone hold NPDES permits at abandoned mine sites—both pre and post-SMCRA sites. In West Virginia, these same lawyers have secured rulings in federal court requiring WVDEP to hold NPDES permits where it is the trustee of the State's reclamation bond pool at post-SMCRA forfeiture sites. 

To view a copy of the petition, click here: http://wvgazette.com/static/coal%20tattoo/KYwaterpetition.pdf 

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

Clean Water Act Section 316(b) – Intake Structures WVDEP Efforts to Implement

WV Department of Environmental Protection has been issuing NPDES permits with provisions that require intake structure best technology available (BTA) recommendations and permit modifications within 12 months of the permit issuance. In some instances the impacted West Virginia facilities have sought an administrative appeal of that provision. The problem at hand is U.S. EPA has a rulemaking that is expected to be proposed at the end of the year that will specifically address technology review benchmarks for intake structures regulated by the Clean Water Act under Section 316(b). If West Virginia requires intake structure modifications and U.S. EPA initiates a program different from West Virginia, facilities will be in the unacceptable and expensive bind of having to change its operations to conform to the federal.  

The regulatory background is that on April 1, 2009, The U.S. Supreme Court ruled 6 to 3 in the case, Riverkeeper, Inc. v. U.S. EPA, 129 S. Ct. 1498, (2009), that EPA can weigh costs against benefits under parts of the CWA overturning a Second Circuit decision stating the opposite. EPA permissibly relied on cost-benefit analysis in setting the national performance standards and in providing for cost-benefit variances from those standards as part of the Phase II regulations. The Court of Appeals' reliance in part on the agency's use of cost-benefit analysis in invalidating the site-specific cost-benefit variance provision, was therefore in error, as was its remand of the national performance standards for clarification of whether cost-benefit analysis was impermissibly used. U. S. EPA, under a new administration, now has to make a decision as to what rule it will be proposing by its announced deadline of September, 2010. 

Efforts are underway to work with DEP and U.S. EPA to create a permitting program that will take into consideration the pending EPA rulemaking. Kathy Beckett is heading that effort on behalf of interested industrial parties and would welcome an opportunity to discuss the efforts with you further. 

This article was authored by Kathy G. Beckett, Jackson Kelly PLLC, (304) 340-1019 or kbeckett@jacksonkelly.com. For more information on the author see here.

EPA Extends Expiration Date of Stormwater General Permit

On January 28, 2010, EPA announced that Regions 1, 2, 3, 5, 6, 7, 8, 9, and 10 were modifying the 2008 National Pollutant Discharge Elimination System (NPDES) general permits for stormwater discharges associated with construction activity.  75 Fed. Reg. 4554 (Jan. 28, 2010).  A copy of the Federal Register notice may be accessed here.  The permits will be extended by one year, so that the new expiration date will be June 30, 2011.  The 2008 CGP permit provides coverage for discharges from construction sites that occur in areas not covered by an approved State NPDES program.  Construction activities (which include soil disturbing activities such as clearing, grading, excavating, stockpiling, etc.) that disturb one or more acres, or smaller sites that are part of a larger common plan of development or sale, are regulated under the NPDES stormwater program. Operators of regulated construction sites are required to develop stormwater pollution prevention plans; to implement sediment, erosion, and pollution prevention control measures; and to obtain coverage under a state or EPA NPDES permit.  Most states are authorized to implement the NPDES permit program, including the stormwater program.  West Virginia’s stormwater discharge program requires operators disturbing more than one acre of land to be covered under its general permit, WV0115824, which expires December 4, 2012.  The extension of the 2008 CGP is intended to enable EPA to assist state agencies in incorporating the new guidelines into permits set to be reissued in the next few years, recognizing that the new guidelines enact numeric effluent limitations and monitoring requirements that may be new to construction site operations.  

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