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West Virginia Environmental Law

Issues and news in West Virginia environmental and energy law

Updated: 2016-07-27T05:49:14.449-07:00


EPA, Environmental NGOs Appeal Alt Agricultural Storm Water Decision


 I don't usually blog about about the cases I'm involved in, so here is a link to  a Bloomberg article that reports on the appeal of Judge Bailey's decision by EPA and others to  the Fourth Circuit. It is largely correct, although  the first  appeals came in to me on December 20, 2013, not the 23rd, and while the case number for theEPA appeal is correct, the cases have all been consolidated under Case No. 13-2527.

West Virginia DEP Recycling Electronics in Charleston November 23


The West Virginia Department of Environmental Protection is conducting a free electronics recycling event for the public from 9 a.m. to 3 p.m., on Saturday, Nov. 23, at the DEP headquarters building in Charleston. The building is located at 601 57th St., S.E., Charleston, WV, 25304.

The DEP’s Rehabilitation Environmental Action Plan (REAP) and MRM Recycling are sponsoring the e-cycling event to make it easy for the public to responsibly dispose of electronic devices.

Devices that will be accepted on Nov. 23 include:

televisions, computers, printers, copiers, zip drives, video game devices, electronic cables, laser and multifunction scanners, fax machines, laptops, mice, keyboards, speakers, Web cams, monitors, cables, hard drives, circuit boards, cell phones, CD players and tape players.

Devices that will not be accepted include: kitchen appliances, refrigerators, washers, dryers, freezers, microwaves, air conditioners, lamps, CDs, DVDs, floppy disks, magnetic tapes, household batteries, fluorescent bulbs and home thermostats.

All materials will be recycled through 2TRG, which provides secure data destruction.

For more information call 1-800-322-5530.

Climate Equity Proposal Would Disproportionately Reduce US Emissions


Less developed nations have come up with a new proposal for reducing greenhouse gas  emissions.  They are suggesting that wealthier nations, who are more responsible for existing  levels of GHGs because of their historic emissions, make disproportionate reductions in GHGs in order to meet future targets.  Since that couldn't be done without greatly interfering with wealthy nations' economies, it appears to be a nonstarter. See the article from Alex Morales of Bloomberg here.

WV Attorney General Leads Troops in Attack on EPA


West Virginia Attorney General Patrick Morrisey took the lead in drafting  an amicus brief that was signed off on by eight other state attorneys general.  The brief supported  a circuit court's rejection of EPA's interstate air pollution rule. A press release from his office describes it this way: 
West Virginia’s amicus, or friend of the court, brief argues that EPA exceeded its authority under the federal Clean Air Act when the agency promulgated a rule in 2011 announcing new air pollution cuts and imposing federal implementation plans on states. The brief argues the CAA requires the EPA to give states an opportunity to decide how to meet new air pollution standards. 
West Virginia is joined on the brief by a bipartisan group of attorneys general representing the states of Arizona, Arkansas, Kentucky, Missouri, Montana, North Dakota, South Dakota and Wyoming. The brief supports fifteen other states, as well as industry groups and labor organizations, who sued EPA on this issue in 2011. In August 2012, the U.S. Court of Appeals for the D.C. Circuit struck down the regulation, saying that it “exceeds the agency’s statutory authority.” The Supreme Court agreed to review the rule earlier this year. 
An article  from Jessica Karmasek is here.  The brief that was filed (and it is well-written) is here.

Marcellus Ethane Headed Out of the Area


We had big hopes for a cracker  that would use Marcellus  ethane and  other natural gas liquids to make plastic, and help restart our chemical industry.  That was especially true after Shell announced its plans to build a cracker in Pennsylvania.  Now Shell appears to have shelved its plans, and MarkWest is making plans to send up to 400,000 bbl per day  down to the Gulf Coast, where there's lots of existing petrochemical capacity, or northwest to Canaday.   I have heard  the ethane is used in Canada to mix with viscous tar sand oil to make it thin enough to flow through pipelines.

Climate Change and the Food Supply


This from economist Don Boudreaux, responding to an article in the New York Times that climate change is going to pose a danger to the world's food supply:
You report that "Climate change will pose sharp risks to the world’s food supply in coming decades" ("Climate Change Seen Posing Risk to Food Supplies," Nov. 2) - with the premise that this impending calamity requires aggressive government curtailment or modification of industrial capitalist activities. 
Color me skeptical. Wherever industrial capitalism has flourished over the past three centuries it has eliminated for the first time in human history the millennia-long curse of recurrent famines. Today, food is in short supply only in societies without market institutions and cut off from global trade. (The people suffering the greatest risk now of fatal shortages of food are true locavores, such as the North Koreans and the Somalis.) Relatedly, some of the worst famines in modern times - most notably, in Stalin's Soviet Union and Mao's China - have been caused by the hubris of government officials curtailing market forces with command-and-control regulations.
The greatest risk to the world's food supply is not the industrial capitalist activities that environmentalists are keen to curtail. Rather, the greatest risk is the trust that many currently well-fed westerners blithely put in government to rein in the only force in human history that has proven successful at eliminating starvation: market-driven capitalism.

thanks to Bishop Hill 

No Bids on Solar Auction


You'd hate to throw a party, and no one comes.   That appears to be the situation with the first auction of rights to develop a solar energy facility on federal land. No bidders showed up for the solar auction at San Luis Valley, CO.  Some cited the uncertainty of the cost of  mitigation that might be required for development at the site, or a lack of a market for the power at the cost of generation.   It's further proof that solar power is still not competitive with fossil fuels, unless subsidies are available.

Marcellus Natural Gas Production Continues to Exceed Expectations


Marcellus natural gas production continues to surprise even the experts, reaching 12 billion cubic feet per day according to this report in the Daily Mail.  Oil  and gas industry employment is up, as Phil Kabler reports here. Not all the news is good, though.  Jared Hunt, Daily Mail business writer, reports on the diminished  likelihood of getting an ethane cracker in the region.

US Supreme Court to Hear Greenhouse Gas Rule Challenge


The U.S. Supreme Court has agreed to hear an appeal of Texas v. EPA, in which the D.C. Circuit Court approved EPA’s greenhouse gas (GHG) regulations.  Numerous industrial organizations and states had challenged the D.C. Court’s upholding of the Endangerment Finding, in which EPA concluded that GHGs from mobile sources represent a danger to U.S. health and welfare, and the Timing and Tailoring Rules, in which EPA described how it would regulate GHGs for stationary sources under the Clean Air Act.  The two primary objections raised by industry were that EPA’s conclusion that GHGs are a danger (and therefore a pollutant to be regulated) is  unsupported scientifically, and that EPA’s conclusion that GHGs are a pollutant under the mobile source program should not  automatically result in GHG regulations for  stationary sources under the New Source Review program.

The Supreme  Court has decided to  consider only the very narrow, but very important, question of “whether EPA permissibly determined that its regulation of greenhouse gas emissions from new motor vehicles triggered permitting requirements under the Clean Air Act for stationary sources that emit greenhouse gases.” EPA has taken the position that once a pollutant is regulated under the Clean Air Act’s mobile source rule, it is regulated under other portions of the  Act as well, including New Source Review.  The Supreme Court will now tell us whether that is correct, or whether EPA’s GHG regulations are limited to mobile sources, at least until EPA would initiate rulemaking to impose GHG limits on stationary sources.

EPA recently set GHG New Source Performance Standards for electric generators that would essentially prevent construction of new coal-fired generating plants, and is presently preparing to set GHG standards for existing sources as well.   The Supreme Court decision will determine whether EPA has authority to adopt those rules.

ORSANCO Delays Mixing Zone Prohibition


ORSANCO (the Ohio River Valley Water Sanitation Commission)  has elected to delay its prohibition on mixing zones for bioaccumulative substances until October 16, 2015.  The prohibition had been scheduled to go into effect on October 16, 2013 for the following substances: Bioaccumulative Chemicals of Concern Lindane Mirex Hexachlorocyclohexane Hexachlorobenzene alpha-Hexachlorocyclohexane Chlordane beta-Hexachlorocyclohexane DDD delta-Hexachlorocyclohexane DDT Hexachlorobutadiene DDE Photomirex Octachlorostyrene 1,2,4,5-Tetrachlorobenzene PCBs Toxaphene 2,3,7,8-TCDD Pentachlorobenzene Mercury 1,2,3,4-Tetrachlorobenzene Dieldrin During the extension of the mixing zone prohibition, dischargers will be expected to be working on reductions in bioaccumulative substances. Ken Ward's article on the Commission's action is here. [...]

The High Cost Of Renewable Credits


Command and control economies just don't work.  Congress requires refiners to blend gasoline with ethanol, but right now  gasoline consumption is dropping  and  there are relatively few cars that can use more than a 10% ethanol blend,so  refiners can't use all the ethanol they are supposed to.  To compensate, they  have to buy credits - i.e., pay a penalty for failure to use enough ethanol.  That gets tacked onto the price of a gallon of gas.

Jeff Macke of Breakout summarizes it this way.
 The vast majority — around 90% — of American cars don't work with an ethanol blend over 10%. When the ethanol requirements continued to rise while demand for end product fell, the refiners were reduced to buying and selling RINs or Renewable Identification Numbers, which are, in effect, credits that allow refiners to meet the terms of the 2005 Clean Air Act without producing fuel that is unsuitable for most cars.
So as demand for gas falls, refiners need to buy more RINs. From just pennies-per-gallon in January, RINs had soared over $1.40 by last summer. Lutz says as much as 75% of the additional cost was passed along to the consumer.
 Therefore, in an attempt to force cleaner burning fuels into the marketplace, the EPA created a policy that ended up artificially inflating the cost of refining gas when demand fell. So the refiners and consumers got gouged for not burning enough fossil fuels. Only the government could make refinery companies look sympathetic.

See the story here.  The good news is that Macke believes EPA will provide some relief on  renewable fuel credits, dropping the price of gasoline to perhaps less than $3 a gallon.

West Virginia DEP Schedules Training For Electronic DMR Submissions


The state Division of Water and Waste Management has free training scheduled for the following dates for the regulated community and consultants who are required to submit certain water resources permit applications and discharge monitoring reporting (DMR) electronically to the DWWM. The training will be conducted at the state Department of Environmental Protection headquarters, located at 601 57th St, SE, Charleston, WV   25304.

The dates are:

September 26, 2013 Thursday
ePermitting  10:00 am to 12:00 pm

September 26, 2013 Thursday
eReporting 1:00 pm to 3:00 pm

October 7, 2013 Monday
ePermitting  10:00 am to 12:00 pm

October 7, 2013
eReporting 1:00 pm to 3:00 pm

October 31, 2013 Thursday
ePermitting 10:00 am to 12:00 pm

October 31, 2013 Thursday
eReporting 1:00 pm to 3:00 pm

To reserve a spot for the above training, contact either Mavis Layton at, (304) 926-0499, ext. 1025; or Megan Smith at, (304) 926-0499, ext. 1281. E-mail is preferable.
The WV Environmental Training Center is hosting DEP Training in the Bridgeport area around the end of November/early December 2013 instead of Morgantown as previously mentioned.  Check the website calendar in a month or so for actual date and sign up with them.  


District Court Interprets NPDES Permit Shield


Judge Chambers of the USDC for the Southern Dist of WV recently ruled, in a case pertaining to discharges from a surface coal mine, that the mine (owned by Marfork Coal Co.) was in violation of its NPDES permit if it discharged selenium in excess of the state water quality criteria, even though it had no permit limit for selenium.  As part of the permit application process, the mine had tested for selenium and found it at a level too low to qualify for an effluent limit, based on a reasonable potential analysis.  Sampling done by environmental groups at a later time allegedly revealed selenium discharges in excess of state criteria, and the environmentalists brought a citizen suit under the Clean Water Act, claiming that Marfork had violated its permit.

Marfork relied upon the permit shield that is found in the federal (CWA Section 402(k)) and state (W. Va. Code 22-11-6(2)) acts. The Court ruled that the permit shield provided no protection against a citizen suit alleging a violation of water quality standards, even where the agency had been provided selenium data at the time of the permit application, and had rejected effluent limits for selenium.  The Court decided that the permit required compliance with water quality standards, and the presence of any pollutant in excess of water quality criteria  (numeric or narrative, presumably) was a violation of the permit, even if no numeric permit limit had been placed in the permit. 

One  crucial difference between coal permits and other NPDES permits is that the  coal NPDES regulations have a provision that requires dischargers to comply with water quality standards, and the industrial NPDES regulations do not.  That may provide industrial facilities with a more expansive permit shield. 

The case is Ohio Valley Environmental Coalition v. Marfork Coal Company, Case 5:12-CV-01464 (Aug 23, 2103).  Thanks to Bob McLusky for bringing this to my attention.

Great Kanawha River Cleanup September 14, 2013


The 24th annual Great Kanawha River Cleanup, sponsored by the West Virginia Department of Environmental Protection, is scheduled from 9 a.m. to noon on Saturday, Sept. 14.

Cleanup sites include Kanawha Falls at Glen Ferris; Magic Island in Charleston; Winfield Beach/Locks; Daniel Boone Park in Charleston; and Roadside Park in St. Albans.

Those wishing to volunteer are urged to register with the DEP so enough supplies can be obtained for each cleanup location. The DEP’s REAP program (Rehabilitation Environmental Action Plan) will supply bags and gloves for volunteers and will arrange for trash to be hauled away.
All volunteers also will receive a T-shirt.

Last year, local citizens collected two tons of debris and trash from the Kanawha River’s banks. Over the last five years, volunteers have removed more than 30 tons of trash from the river and around 400 discarded tires.

For more information or to register to volunteer, contact Travis Cooper at 304-926-0499 ext. 1117 or email:

Today's Number - 60 GWs


Sixty gigawatts (GW) is the total amount of installed wind power capacity in America as of the end of 2012.  It is also the amount of coal-fired generating capacity that will be retired over the next five years in the eastern US.  The Department of Energy reports that 
Last year, over 13 gigawatts (GW) of new wind power capacity were added to the U.S. grid – nearly double the wind capacity deployed in 2011. This tremendous growth helped America’s total wind power capacity surpass 60 GW at the end of 2012 – representing enough capacity to power more than 15 million homes each year, or as many homes as in California and Washington state combined. The country’s cumulative installed wind energy capacity has increased more than 22-fold since 2000.
E & E Publishing, in an article  passed along by  Midwest Energy News,  reports that 60 GW of coal-powered electricity generating capacity will be retired over the next 5 years.  This will present issues for the regional power transmission organizations to deal with.
The reliability of the U.S. electric grid has been a key concern among regulators and utilities in response to impending emissions control regulations by U.S. EPA, including greenhouse gas regulations and tighter control on so-called conventional pollutants such as nitrogen oxide and sulfur oxides. 
Nearly 85 percent of the nation’s coal-fired power plants are in the Eastern Interconnection, a part of the grid comprising 39 states along the East Coast and across to the Midwest. By 2015, about half of those coal plants will be 50 years old or older, but they represent about 25 percent of the region’s total capacity, the report says. 
The report says that the region contains 269 gigawatts of coal capacity, with one-third of that in five states: Indiana, Illinois, Ohio, Pennsylvania and West Virginia.

The news about increased power generation from wind is a good thing - it's helpful to have a mix of power generation sources, and the technology behind wind turbines will likely continue to improve.  But one can't compare 60 GW of  base load, reliable generation from coal plants with 60 GW of intermittent generation from wind turbines.  And the unsubsidized cost of wind generation will have to come down significantly to be comparable to fossil fuel or nuclear.   In some ways, wind may be a victim of its own success - having spent the last few years proclaiming that its costs are on a par with fossil fuels, there may be less support among politicians for continuing subsidies.

Office of Oil and Gas Says No Further Air Pollution Regulation Needed


A provision in the Natural Gas Horizontal Well Control Act directed the  DEP Office of Oil and Gas to study the need for further regulation of  air  pollutants from oil and gas drilling sites.  The OOG finished its report in late June and presented it to an interim committee of the West Virginia Legislature yesterday.  

The important conclusion from the report was that 
Based on a review of several completed air studies to date, including the results from the well pad development monitoring conducted in West Virginia's Brooke, Marion and Wetzel Counties, no additional legislative rules establishing special requirements need to be promulgated at this time.  The existing regulatory framework provides a basis for implementation of requirements to minimize and mitigate human health and environmental impacts. 

The report can be found here, and the cover letter summarizing the conclusions can be found here

The report contains three appendices, listing location restrictions, existing air pollution control requirements, and a list of state and federal investigations, completed and ongoing, investigating the effects of  oil and gas drilling.  They could be a useful resource.  

A story about the legislative meeting from Fuel FIx  is found here

The Energy Cost of Raising the World's Standard of Living


Poverty means  energy poverty for most of the world. Lights, heating and cooling, refrigeration, transportation, pumps, and  labor-saving devices of all kinds require power.  So how much additional energy would be needed to elevate the poor to  the energy usage required to maintain the standard of living of a developed country like Spain? Considering the huge improvement in health and quality of life that would result, the amount of additional energy required is surprisingly little. Willis Eschenbach  explains it here.Of equal interest is the extended comment on Eschenbach's essay from rgb@duke, a professor of physics at Duke University.  He makes the intriguing case that future sources  of energy are essentially unlimited. Since you  may not scroll down through the comments, I've  reprinted it below. A few small notes. Looking at the table, there is a difference between “reserves” and “recoverable resources”. We have 81 years of the former, but well over ten times that in recoverable resources. The former has proven to be a rather flexible and hence perhaps pointless number as it keeps changing as new resources are discovered and proven, which is why we haven’t reached “the end of oil” quite yet. In particular, there is a LOT of coal that is recoverable, and nothing prevents us from using a venerable process for converting coal into gasoline but price — the general availability of cheaper gasoline produced directly by refining crude oil.Second, you deliberately (I imagine) did not address nuclear energy and its reserves. Uranium is problematic — perhaps — because high pressure light water cooled reactors have technical risks of meltdown and associated risks of nuclear proliferation, but nevertheless there are at least hundreds, possibly tens of thousands thousands of years worth of Uranium reserves (the latter if we use breeder reactors and actually burn all of the Uranium instead of a pitifully small fraction of lightly enriched U-235). Of course breeder reactors that are efficient in this regard burn plutonium for most of the energy they produce, and plutonium is bomb material at this point for pretty much any country that gets it as the concept of implosion lenses and critical density is hardly either secret or technically inaccessible any more even to a very poor and backwards country. Still, we have 30,000 years of Uranium WITHOUT using Uranium from seawater from proven reserves if we use breeder reactors. If anyone works out how to economically extract Uranium from seawater we have an effectively infinite supply — humanity would evolve before we ran out, as the 60,000 years in seawater would be amplified by 100 to 6 million years. Admittedly, this is “at current consumption rates” so it would be less if we converted over to using fission reactors on a broad basis, but I think that it makes the 81 years entirely moot.Third, that doesn’t include Thorium, either. Thorium has a number of advantages over Uranium as a reactor fuel, the principle ones being that it is somewhat (but not decisively) more difficult to use as the basis for a clandestine bomb building program, it produces anywhere from 10 to 10,000 times less nuclear waste depending on the fuel cycle selected, and it is MUCH more difficult to make a thorium reactor “melt down” the way existing solid-fuel LWR Uranium designs can. The most advantage fuel cycle appears to be liquid salt reactor designs, which literally cannot melt down, have reduced (but nonzero) proliferation concerns, and which could literally be used to burn EXISTING nuclear waste and in [...]

EPA Updates Oil and Gas Standards for Storage Tnaks


EPA has announced revisions to the 40 CFR Part 60 Subpart OOOO (sometimes referred to as "Quad O") New Source Performance Standards  that apply to oil and gas production storage tanks.  In West Virginia, these changes will presumably be made part of the G-70 general air permit for oil and gas production facilities that we hope will be issued by the Division of Air Quality  fairly soon.It is worth noting that Chesapeake Operating  appealed a permit condition in a minor source Reg 13 permit  that specified how it was to confirm flashing emission potential, and a resolution of that appeal may affect how companies calculate whether they are going to exceed the 6 ton threshold.Below is EPA's press release, with  a hyperlink that can eventually get  you to the rule.,WASHINGTON – Today the U.S. Environmental Protection Agency (EPA) issued updates to its April 2012 oil and natural gas standards for storage tanks, which allow responsible oil and natural gas production while ensuring air emissions are reduced as quickly as possible. The updates will phase in emission control deadlines, starting with higher-emitting tanks first, and will provide the time needed to ramp up the production and installation of controls. EPA is making the changes based on information received after the 2012 standards were issued that shows more storage tanks will come online than the agency originally estimated.Storage tanks that emit 6 or more tons of volatile organic compounds (VOCs) a year must reduce emissions by 95 percent. Today’s rule establishes two emission control deadlines: tanks that come online after April 12, 2013 are likely to have higher emissions and must control VOC emissions within 60 days or by April 15, 2014, whichever is later; and tanks that came online before April 12, 2013 are likely to have lower emissions and must control VOC emissions by April 15, 2015.The updated standards also establish an alternative emissions limit that would allow owners/operators to remove controls from tanks if they can demonstrate that the tanks emit less than 4 tons per year of VOC emissions without controls. In addition, the rule streamlines compliance and monitoring requirements for tanks that have already installed controls.The oil and natural gas industry uses tanks for temporary storage of crude oil, condensate and other liquids, before those liquids are moved to a pipeline, sold or moved for disposal. These storage tanks can be sources of emissions of ozone-forming VOCs, along with several toxic air pollutants, including benzene. Today’s final action does not affect the April 2012 standards for capturing natural gas from hydraulically fractured wells. Today’s updates respond to petitions for reconsideration of the 2012 New Source Performance Standards for Oil and Natural Gas Production. Those cost-effective standards rely on proven technologies and best practices to reduce emissions of ozone-forming VOCs and air toxics, including benzene and hexane.Exposure to ozone is linked a variety of health effects, including aggravated asthma, reduced lung function and increased susceptibility to respiratory infections, in addition to increased risk of premature death from heart or lung disease. Benzene and hexane are air toxics, which can cause cancer and other serious health effects. More information:[...]

EPA Proposing Changes to CLean Water Act Reporting


EPA is proposing a modernization of Clean Water Act reporting. (See press release below.) The West Virginia Department of Environmental Protection's Division of Water and Waste Management already requires electronic filing of  NPDES discharge monitoring reports, so it's not clear what would change. Yogesh Patel, who heads up the DWWM's NPDES Permitting Section, is not sure how EPA's new proposal will affect West Virginia's eDMR system, but he will be attending an EPA webinar and  advising NPDES permittees thereafter.  EPA Proposes Rule to Modernize Clean Water Act ReportingE-reporting initiative will increase efficiency, ease burden for states and improve public access to dataWASHINGTON – The U.S. Environmental Protection Agency (EPA) has proposed a rule that would modernize Clean Water Act (CWA) reporting processes for hundreds of thousands of municipalities, industries, and other facilities by converting to an electronic data reporting system. The proposed e-reporting rule would make facility-specific information, such as inspection and enforcement history, pollutant monitoring results, and other data required by permits accessible to the public through EPA’s website.EPA estimates that, once the rule is fully implemented, the 46 states and the Virgin Island Territory that are authorized to administer the National Pollutant Discharge Elimination System (NPDES) program will collectively save approximately $29 million each year as a result of switching from paper to electronic reporting. “In addition to dramatically cutting costs for states and other regulatory authorities, the e-reporting rule will substantially expand transparency by making it easier for everyone to quickly access critical data on pollution that may be affecting communities,” said Cynthia Giles, assistant administrator for EPA’s Office of Enforcement and Compliance Assurance. “The e-reporting rule will also allow states and other regulatory authorities to focus limited resources on the most serious water quality problems, which will lead to increased compliance, improved water quality, and a level playing field for the regulated community.”Currently, facilities subject to reporting requirements submit data in paper form to states and other regulatory authorities, where the information must be manually entered into data systems. Through the e-reporting rule, these facilities will electronically report their data directly to the appropriate regulatory authority. EPA expects that the e-reporting rule will lead to more comprehensive and complete data on pollution sources, quicker availability of the data for use, and increased accessibility and transparency of the data to the public. The CWA requires that municipal, industrial or commercial facilities that discharge wastewater directly into waters of the United States obtain a permit. The NPDES program requires that permitted facilities monitor and report data on pollutant discharges and take other actions to ensure discharges do not affect human health or the environment. Most facilities subject to reporting requirements will be required to start submitting data electronically one year following the effective date of the final rule. Facilities with limited access to the Internet will have the option of one additional year to come into compliance with the new rule. EPA will work closely with states to provide support to develop or enhance state electronic reporting capabilities. EPA has already scheduled several webinars in an effort to help states, trade organizations, and other interested [...]

Fish & Wildlife List Diamond Darter As Endangered Species


The US Fish & Wildlife Service has decided to list the Diamond Darter, a fish that is only found in the Elk River, as endangered.  A news release from FWS is found here.  The following is an excellent summary of the facts surrounding the listing, from Jason Bostic of the WV Coal Assn.  In the July 26, 2012 the F&WS proposed listing the diamond darter under the ESA.  Concurrent with its proposed classification as an endangered species, the F&WS proposed to designate 28 miles of the lower Elk River in West Virginia (from the Confluence of King Shoals Run near the Wallback Wildlife Management Area to near Knollwood Drive in Charleston) as “critical habitat” for the species.  This section of the Elk River contains the only known remaining populations of diamond darters in the country.  F&WS also proposed to classify 95 miles of the Green River in Kentucky as critical habitat since diamond darters historically inhabited the area, although none exist there today.  F&WS has NOT made a decision regarding critical habitat designation in the notice that will be published tomorrow.  The decision regarding critical habitat will come later, as will any proposed protection measures. In the July 2012 Federal Register notice announcing the proposed listing and critical habitat designation, F&WS identified several factors that may jeopardize the continued existence of the diamond darter, including water quality impacts associated with coal mining activities undertaken on tributaries to the Elk River.  F&WS claims that sedimentation, metals and increases in downstream conductivity threaten the existence of other sensitive fish species and therefore pose a threat to the diamond darter.  The agency’s conclusions regarding conductance and fish impacts is largely based on studies undertaken by the agency on the Kentucky Arrow Darter in the Cumberland River Basin. Although mining activities generally do not directly exist within the 28-mile range of proposed critical habitat designation area, concerns related to the alternation of that critical habitat area could be applied to any proposed / current mining activity on any of the Elk River’s tributaries.  The terms of the ESA that require federal agencies to ensure that permitted activities will not jeopardize the continued existence of an endangered species and/or its habitat would apply directly to Clean Water Act (CWA) Section 404 permits issued by the U.S. Army Corps of Engineers and indirectly to the issuance of permits by the state under the Surface Mining Control & Reclamation Act, and potentially to state issued Clean Water Act Section 402 NPDES permits.  [...]

King Coal Highway Renamed For Mike Whitt


In a nice tribute to a man who exemplified unselfish public service, the King Coal Highway in Mingo County was named after Mike Whitt, who died a year or so ago.  The Williamson Daily News has the story here.   If only every county had someone working for it as hard as Mike did for Mingo County.

Dam Owner Education Program August 8 in Eastern Panhandle


      The West Virginia Department of Environmental Protection’s Dam Safety Program is sponsoring a one-day workshop for dam owners and monitors on Thursday, Aug.
8, at the Mountain Lake Club near Charles Town. 

The workshop, which will run from 8:30 a.m. to 4:30 p.m., is designed to provide practical information on topics of importance to anyone who owns or monitors a dam. Topics to be covered include: Dam Safety Act and rule; owner responsibilities and liabilities; basic terminology; causes of dam failures; emergency action plan guidance for dam monitors; maintenance problems and solutions; and remediation projects, hiring an engineer, costs.

The early registration fee is $25. It will cost $35 at the door. As part of the registration fee, workshop participants will receive a CD-ROM with the presentations and other valuable resources. To register, or for more information, contact the WVDEP’s Anita Chapman at 866-568-6649, ext. 1006 or email

Australia Moving From Carbon Tax To CarbonTrading


Last year Australia adopted a carbon tax, one that hasn't been too well received. It was a pretty hefty tax of about $24 Aus, much higher than about any other country.  Green feeling evidently overcame rational thought, as Australia was hamstringing itself in the world markets. It was supposed to be spread out broadly among all the big companies, but as Phillip Hutchings learned, that wasn't the case.   Mr. Hutchings provides an excellent analysis of the carbon tax here.

The Australian government has retreated, and will be moving to a carbon trading system, in line with those in Europe and elsewhere. Australian politicians are now saying that the country  should be contributing to GHG reduction in a manner (and to a degree) consistent with other nations, which seems about right.  Platts has the story here The primary effect will be to drop the price for a ton of CO2 equivalent down to the European price of about $6 US, and it will probably drop further.  (I seem to recall that the US carbon trading market collapsed and trading was suspended a few years ago.)   .

Willis Eschenbach has calculated on Watts Up With That how much the province of British Columbia could reduce global warming by its efforts to be carbon free, and came up with a figure of .005 of a degree.  Are all these carbon schemes worth anything?

Coal - It's Not Just For Burning Anymore


Forbes magazine reminds us that coal isn't useful just for burning; it can also be the building block of structural and electrical components with interesting characteristics.   The West Virginia Coal Association reminds us that  coal can be foamed into insulation and other useful products.  Perhaps one day coal will be in greater demand as a source of  graphene and carbon fiber than for power generation.

Consol Shows Off State-Of-The-Art Water Treatment Plant


Consolidation Coal Company has recently unveiled a $200 million treatment  plant and pipeline system to handle acid water from numerous underground mines in the Morgantown area. Joselyn King of the Wheeling Intelligencer/Wheeling News Register reports on it here.  The treatment plant was a necessity if Consol was going to continue operatingits mines,  its willingness to construct the plant speaks volumes for its commitment to the area.

Of particular interest is the possible use of the treated water as frack water by the oil and gas industry. Given the plant's location in the heart of the liquids-rich portion of the Marcellus, that would seem like a great opportunity for Consol to recoup a small part of the cost of running the plant.