West Virginia Environmental Council

G.R.E.E.N.
Grass Roots Environmental Effort Newsletter

May 2001

Legislature Passes Weakened Anti-degradation Plan

by Nathan Fetty and Donald S. Garvin, Jr.

Saturday, April 14, the clock on the wall of the House of Delegates chamber struck midnight and the gavel came down on the regular session of the 2001 West Virginia legislative session. Earlier in the day, the House approved an anti-degradation bill that was a compromise negotiated between the state Division of Environmental Protection and industry's "Dirty Water Coalition." The Senate had passed the same bill a couple of days before.

So what did DEP and industry agree to? They agreed to a greatly watered down version of the DEP proposal, with none of the agreed-upon changes being very good for trout or other critters (including human beings), and none of the changes doing what the Clean Water Act says anti-degradation should do - keep our clean waters clean.

Basically, the compromise bill is a 66-page document of exemptions. All non-point source dischargers are totally exempt from antideg review - including agriculture, logging, oil and gas, and highways. New exemptions are included for wastewater treatment facilities. Coal, of course, is exempt from antideg review for valley fill permits associated with mountaintop removal operations. And all existing NPDES (end-of-pipe) permit holders are exempt from antideg review unless there is significant expansion or increase of their discharges. In other words, old polluters forever are grandfathered from the policy.

The trigger for antideg review is now based on assimilative capacity instead of baseline water quality. This means that much higher levels of pollution will be allowed even BEFORE polluters are subject to the policy.

We were successful, however, in retaining Tier 2.5, the level of special protection afforded to "waters of special concern," which is supposed to include all reproducing trout streams. The Tier 2.5 list of these streams from DEP and DNR also remains intact. However it is now a "presumptive" but not final list - the new bill creates a mechanism where every private landowner along a designated stream may appeal the designation during a one-year period after the effective date of the rule (April 14, 2001). The DEP director then will make a decision, and the director's decision is can be appealed to the state Environmental Quality Board.

Any trout streams not on the list included in the bill will have to be nominated for Tier 2.5 level protection and approved by the legislature in subsequent years. And it remains to be seen how the Tier 2.5 appeal process will work. It could end up being a nightmare.

It's also too early to tell how high-quality streams that are not on the Tier 2.5 list will fare under the protections afforded in Tier 2, which is the default level for these streams. Both Tier 2.5 and Tier 2 will allow a discharger to pollute up to 10% of the assimilative capacity before triggering anti-degradation review procedures (this is the old "dilution is the solution to pollution" rubric). However, Tier 2 streams will also be allowed to be degraded up to a 20% cumulative cap.

Will this truly protect these streams, or will the result be that we see many more streams added to the list of the state's impaired waters? Only time will tell.

We should make it clear that no environmental organizations had any part in the negotiations that resulted in this weakened bill. DEP director Mike Callaghan and Office of Water Resources chief Allyn Turner did listen to our concerns and kept us updated on the changes they were suggesting. But when it came down to the negotiations, we were excluded from the room.

In a recent Charleston Gazette article, Callaghan conceded that negotiations between his agency and industry did not include any representatives of environmental organizations. "I excluded them, and I've apologized for that to every one of them as best I can," Callaghan said. "I did not mean to do that. I'm new up here, and I've got a lot to learn," he added.

Thanks to all of you who kept up on the issue over the past two months. Your calls, faxes, e-mails and visits to legislators helped greatly in elevating the issue, and in countering the deluge of industry mis-information and scare tactics.

Yes, There is Life After Session

by Gary Zuckett, WVEC Lobby Team Coordinator

gzuckett@wvwise.org

The 2001 WV regular legislative session ended at midnight with the House introducing their spouses sitting up in the gallery and the Senate passing resolutions naming roads and bridges. It was quite boring compared to past years.

However, as usual we had one issue that raced the clock to the final hour of the session. This time it was the resurrected Wind Power Welfare bill, HB2968, giving a huge tax break to the state's first wind power project.

After the bill was defeated in the Senate, a motion was made to reconsider the action taken. This happened only after wind power lobbyists and leadership had twisted enough arms to turn the vote their way. The bill was then reconsidered and passed over to the House.

The final vote on the bill took place after it came back from conference committee at about 11:30 PM Saturday night while the Public TV cameras were rolling. Senators Jon Hunter and Herb Snyder tried to persuade the Senate from voting to give away 95% of the property and B&O taxes from the Tucker County Wind Power project. Altogether, 10 Senators had the fortitude to buck leadership and vote no on this bill, not enough to kill it.

Governor Wise has been asked to veto this wind giveaway but as of this hour the verdict is still out on this and all other bills on his desk.

The timber issue made progress this year. A bill was introduced, but too late to move through the process. Next, a resolution to do an interim study was passed by the Senate and died in the House. CORL (Coalition for Responsible Logging) is hoping it may still be possible to convince legislative leaders to add this issue to interims. Timber theft is now a felony so, beware, all you chain saw packin' outlaws.

As usual, King Coal got royal treatment from the legislature. See Julie's articles for details.

Solid Waste took one step forward and two steps back as the Anti-Litter bill passed early in the session. Then bills were passed to allow tires from clean ups and bounty collections to be landfilled and exempting cities from composting yard waste.

Hunting is now legal on certain Sundays of the year unless county commissioners call for a referendum to let voters decide not to.

Appreciation is due for all your support and calls made on behalf of our lobbying effort. Without our membership backing us up with contacts to elected officials, our job monitoring and defending environmental issues at the state Capitol would be much, much harder and not nearly as effective. So, from the whole lobby team, a heartfelt thanks

Bills passed and awaiting action by the governor:

HB 3240 & 2663 "Muddy Water"anti-deg bills (see page one)

HB 2891 Makes timber theft a felony

HB 2146 Sunday hunting

HB 2222 Anti-litter bill

SB 689 Amends blasting regulations for surface coal mines

SB 603 Local development offices can now buy mountaintop mine sites without requiring reclamation to approximate original contour and more.

SB 574 Increase in civil penalties for violations of the Water Pollution Control Act

SB 332 Yard waste rules amended to exempt municipalities from composting

HB2218 DEP director now a cabinet position

Bills on the "dead" list:

SCR 48 Study of Election financing died in House Rules

SCR 55 Timber study resolution died in House Rules

SB 729 Regulating ATVs

SB 735 Removal of $5,000 cap on reclamation bonds for coal mining

Don't Despair - Sustainable Fair 2001 Nears!

by Denise Poole

Gasoline prices rise! You don't know where to buy organically grown food! Your food is 80% genetically engineered but no one's telling which ones! You can't fish in your favorite stream! You can't pay for medical costs and your HMO won't either! You have to buy your water in plastic jugs! Home heating costs are through the roof! You can't breathe! Sound too familiar? Does life feel out of your control?

Don't despair! Join us for the 2nd Annual Sustainable Fair: "Think Green". How about an uplifting 3 days of inspiring presentations, hands-on workshops, enlightening demonstrations, and interesting booths all on a variety of sustainable topics? While there, enjoy great live music and take in the Environmental Art Exhibit. You can even play a little by taking a dip in the Olympic-size pool, or visiting the basketball court or weight room.

Highlights: Friday's focus will be on Sustainable Agriculture; Saturday keynote speaker, Bion D. Howard - "Building Green for Real Sustainable Development Now"; Over 50 booths registered to-date; Workshops, Demonstrations and Presentations on such topics as: Low Cost Earth Friendly Housing, Solar Energy, Composting, Foraging for Edible Plants, Grant-writing, Water Crisis, Soap-making, Medicinal Herbs, Culinary Herbs, Yoga, Reflexology, Eco-Tourism, Recycling and Essential Oils. An Auction featuring sustainable products and services will help raise funds for the Sustainable Fair 2002.

The Fair takes place on the college campus of West Virginia Wesleyan in Buckhannon July 27, 28, and 29th. Registration fee: $5.00. Booth fee: $ 20.00 (includes two free registrations). Meals and lodging are on your own. The campus cafeteria is open and offers a wide variety of choices. Also, 100 dorm rooms are being reserved for participants at $9 and $13 per person (two beds per room - first come, first serve basis).

For brochure, list of participants & sponsors and registration information contact Denise Poole at deniseap@earthlink.net or 304-522-8409. Visit Myra Bonhage-Hale's website: www.lapaixherbaljourney.com for continuously updated information.

Briefs on Other Coal Bills

by Julie Archer

Here's a brief summary on coal-related legislation that we were following during the session:

SB 631, which creates a "Clean Coal Technology Council," a body that is "intended to study, recommend, promote and implement pilot projects, clean coal technology and alternative uses for coal." The House Government Organization Committee amended the bill by removing six members of the public that would serve on the board and replacing them with two coal operators, two members representing coal miners' viewpoint and two members who have knowledge of and experience in the field of coal technology. This amendment was adopted by the full House, which passed the bill. The Senate accepted the House amendments and the bill was sent to the Governor.

SB 689, which amended pre-blast survey and blasting requirements for surface coal mines, also passed the Legislature. This bill had been amended before it passed out of the Senate Energy, Industry and Mining Committee, but did not see any further amendments during the session.

The most important piece of coal related legislation to come up during the session would have attempted to fix the state's bonding requirements for surface mines. Late in the session, following U.S. District Judge Charles Haden's ruling that West Virginia's bonding program is inadequate, the Senate Judiciary Committee originated a bill with the language governing the current bonding system. The bill was amended by the House Judiciary Committee to remove the cap on reclamation bonds. The bill passed out of the Judiciary Committee, but the House Rules Committee did not put the bill up for a vote by the full House and it died on the last night of the session.

Bad Legislation, Not As Bad in the End

by Julie Archer

As we were working on the last GREEN the Senate had passed SB 603, which allows local, county and regional economic development authorities to offer recommendations for post mining land use at surface mines and to later work with the Development Office to purchase the land after the mining has been completed.

We requested a public hearing on the bill before the House Judiciary Committee where lobby team members and others pointed out serious problems with the legislation which were:

---Potentially helping surface mine operators dodge approximate original contour (AOC) requirements.

---Valley fills would become larger and more numerous and larger areas would be left unreclaimed.

---Contemporaneous reclamation could be impeded as the mining progresses.

---Mine operators could receive approval for changes to their permits based on local development authority recommendations for post mine land use.

---No guarantee that the recommended development plans would ever come to fruition.

---If the plans proceed, they could do so with taxpayer money. If Development Office secrecy occurs, these decisions could be made without public input.

---If the plans fail, DEP could be left holding the bag with what could well be inadequate bonding.

As a result of our public hearing, the Judiciary Committee (at the request of DEP) adopted amendments that closed some the gapping holes in the legislation and easing some of our concerns. One amendment provides that all reclamation plans must be made in accordance with the Surface Coal Mining and Reclamation Act and that the requirements of the Act supercede and are not modified by the changes to the Economic Development Act. Another amendment inserts a provision that says the property must be eligible for bond release in accordance with the Surface Mine Act before local development authorities can accept ownership of the property. The bill was also amended to require the Development Office to propose rules to establish, implement and enforce this legislation.

Thanks to those who testified at the public hearing (Don Garvin, Rick Eades, Norm III, Bob Gates and Elaine Purkey) and to others who attended (Gary Z, Nathan Fetty, Viv Stockman, Eddie Harman and Julian Martin). Special thanks to Rick for his advice and guidance, and thanks to Joe Lovett and Cindy Rank who took time to look at the bill. Thanks too, to everyone who wrote letters, sent e-mails and made calls during the session on this and other legislation.

DEP Looking for Data on Impaired Waters

The WV Division of Environmental Protection (DEP) is beginning work to compile water quality data on the state's polluted streams and lakes.

The 303(d) list of impaired waters is compiled by the DEP and submitted to the U.S. EPA every four years as a requirement of the Clean Water Act. The next list is due in April 2002. The last list was compiled in 1998. Streams and lakes statewide are listed if they are water quality limited. A water quality limited water is a water body which, due to pollution impairment, fails to meet water quality standards.

DEP's Office of Water Resources (OWR) is collecting water quality data for its next 303(d) list of impaired waters. In addition to data collected by the office's Watershed Assessment Program, the agency will be compiling data collected by other agencies, watershed associations, permittees and any other person or organization with available water quality data.

"The listing and delisting of impaired streams is a major tool used in DEP's water pollution control efforts," says Patrick Campbell, assistant chief of the OWR. "While our program collects a huge amount of data, there is always more to be found through citizens, industries, and government agencies. We like to include as much information as we can to produce a scientifically sound document. The 303(d) list ultimately controls where total maximum daily load (TMDL) studies will be carried out."

A TMDL is a plan to clean up polluted waters that includes pollution source identification and strategy development for contaminant source reduction or elimination.

Those wishing to submit data on a state water or nominate a waterbody for consideration by DEP in the 2002 303(d) listing/delisting process must submit data or a nomination no later than September 30, 2001. Data generated from samples taken from July 1, 1996 through July 1, 2001 will be considered. Data submissions should include the stream or lake name, date, time and location of the sample, as well as the names of the sampler and analyst. Any data submitted should be accompanied by information describing components of the study design and contain a description of all quality control/quality assurance measures taken to ensure the accuracy of the data, if available.

Data submissions will be accepted by mail, fax, and e-mail. Electronic data submission by e-mail or on disk is preferred. If an electronic format is used, it should be comma delimited text, tab delimited text, or any spreadsheet or database type file.

Visit www.dep.state.wv.us for the 1998 303(d) list. For more info, contact Jessica Welsh at (304) 558-2108 or jwelsh@mail.dep.state.wv.us or 1201 Greenbrier St., Charleston, WV 25311.

Why?

by Norm Steenstra, WV-CAG Executive Director

I sat on the proverbial bench for much of this last session. My contributions were slight. I was much more of a role player than a starter. I watched the lobby team go about its task with a lot of pride and admiration. I also watched WVEC and the environmental community spend more money than ever before and yet achieve almost nothing tangible.

The lack of positive gains during the session was in no way connected to who was or was not on the lobby team. The team's management was not the reason either. We lost virtually everything because the rules of the game caught up with us. The seemingly ever-tilting playing field finally dictated a "no win" situation for the greens. The greeds had stacked the deck.

We had a terrible session. We were not alone. Nearly every veteran progressive lobbyist I talked to felt that this session was the worst he or she had ever gone through. The legislative process in West Virginia sucks. It has devolved into one of the power versus the powerless. The money creates power. The powerless are limited to vision, values and compassion.

The session is only part of the picture. Recent demoralizing green setbacks in the courts are another example of the rules of the game passing us by. The reversal of the Haden decision, Blackwater River and the Budget Digest case are examples of a judicial system riddled with the politics that also corrupt the legislative branch.

We just finished the first 100 days of the most anti- environment President in our history. It seems like each week Bush the Pretender takes disrespect for the environment to a new depth. Global warming, air, arsenic, national forests, Arctic National Wildlife Refuge drilling, and drinking water all define this administration as the zenith of the greeds. Now he proclaims that energy conservation is of no relevance to the nation's energy policy. It will get worse. It will get a lot worse.

So, with all 3 branches of government allied with the greeds, why do we do what we do? Why do we care? Why do we put ourselves through the agony, expense, marginalizations and contempt the greeds send our way? I bet it's a question a lot of you are pondering. Obviously, I am.

We do it for the same reason we take in a stray kitten that we really don't want or need. We do it for the same reason that we try to consume less when billions of people aspire to consume more. We do it for the same reasons that motivate us to recycle and reuse when most of our neighbors buy into the throwaway society. We do it for the same reasons that we get involved in our community, our churches and our schools even though most everybody else takes the attitude of " letting someone else care".

We do it because it's the right thing to do. We do it out of an innate sense of responsibility. I think we do it because, while we like dollars, we don't worship them. I know it's overly simplistic but I sometimes think of our opponents as the ids of society. They are the "me firsts" of our world. The very young child that can only think of its own needs and wants. The way we govern ourselves is supposed to be the ego. It was meant to be the balance between our needs and what is the right thing to do. I think we are witnessing a shift in government toward the ids.

Some legislators have called us the conscience of the process. Greens are the one group that ask the questions that the greeds want swept under the table. So, in a way, value-based groups are the super ego of society. I believe that is our role in government. It's an important role that we must continue even in this darkest of times. Over the next year we must continue to challenge the executive branches, participate in the legislative process and question the legality of ids and egos in the courts. Victories will be rare but they will become extinct if we are not there to boil the pot.

Job Posting

West Virginia Rivers Coalition (WVRC) seeks a motivated individual for part-time work maintaining and enhancing our website (www.wvrivers.org) and laying out and developing our two newsletters. The position may also include some advocacy issues work. It is capped at 20 hours per week, but may expand to full-time within the year. Send resume to Jeremy P. Muller, WVRC, 801 N. Randolph Ave., Elkins, WV 26241. Or email to jmuller@neumedia.net.

Two Charleston Gazette Articles:

Mine study conclusions already made.

Arch Coal tries to "lawsuit proof" permit for record Logan County strip operation

by Ken Ward Jr.

Friday May 04, 2001; 12:05 AM

LOGAN - On Wednesday night, federal regulators held a hearing to find out what the public wanted studied before the largest strip mine in state history is permitted.

Sent from The Charleston Gazette. Read the complete story online at

http://www.wvgazette.com/display_story.php3?sid=2001050359

Dan Radmacher: State courts best for the status quo