’401 Certification’ is an essential part of the Clean Water Act

From an Article by Lisa Friedman, New York Times, June 1, 2020

WASHINGTON — The Environmental Protection Agency on Monday announced that it had limited states’ ability to block the construction of energy infrastructure projects, part of the Trump administration’s goal of promoting gas pipelines, coal terminals and other fossil fuel development.

The completed rule curtails sections of the U.S. Clean Water Act that New York has used to block an interstate gas pipeline, and Washington employed to oppose a coal export terminal. The move is expected to set up a legal clash with Democratic governors who have sought to block fossil fuel projects.

Specifically, it limits to one year the amount of time states and tribes can take to review a project and restricts states to taking water quality only into consideration when judging permits. The Trump administration has accused some states of blocking projects for reasons that go beyond clean water considerations, such as climate change impacts.

Andrew Wheeler, the administrator of the E.P.A., said the agency was moving to “curb abuses of the Clean Water Act that have held our nation’s energy infrastructure projects hostage, and to put in place clear guidelines that finally give these projects a path forward.” States, he said, would no longer be allowed to use the law to object to projects “under the auspices of climate change.”

The rule was initially proposed in August shortly after President Trump issued an executive order directing agencies to “promote efficient permitting processes and reduce regulatory uncertainties that currently make energy infrastructure projects expensive and that discourage new investment.”

Mr. Trump then directed the E.P.A. to revise rules for permits issued under Section 401 of the Clean Water Act, which gives states and tribes the ability to judge the potential impact that energy projects and other construction proposals might have on water quality. He called the current rules “outdated.”

The American Gas Association, which represents natural gas distribution and transmission companies, praised the changes and described states’ objections to pipelines and other projects as “abuse.”

“The new final rule will end the practice of states misusing Section 401, putting political ideology and the goal of blocking natural gas pipelines over the important task of protecting our nation’s water quality,” Karen A. Harbert, the president and chief executive of the association, said in a statement.

Democratic lawmakers and environmental groups have denounced the rule and said it infringes on states’ rights. Section 401, they said, has been a critical tool for states to protect their drinking water quality. They also argued that the time restrictions will burden states that have limited resources to evaluate complicated projects. Companies will now have an incentive to run out the clock by delaying requests to submit data.

“In the latest example of the Trump administration’s disdain for the rule of law, it is trying to excise states’ clean water rights to object to projects that violate state water quality standards,” said David Hayes, who runs the State Energy & Environmental Impact Center at the New York University School of Law.

Clean water law experts also noted the Supreme Court in 1994 explicitly affirmed states’ authority to impose conditions on projects based on state law.

“It’s a pretty significant retreat from what they were doing the last 40 years,” said Mark Ryan, a Clean Water Act expert who served as regional counsel for the E.P.A. in its Pacific Northwest regional office.

He predicted the rule would be “very vulnerable” to a legal challenge, adding, “the E.P.A. will have a very hard time convincing the Supreme Court that its current interpretation of the Clean Water Act is correct.”

The Trump administration has particularly criticized New York for its lengthy battle to block an interstate pipeline, the Williams Companies’ Constitution natural gas pipeline from Pennsylvania. And in 2017, Gov. Jay Inslee of Washington used the 401 provision to block a permit for a coal export facility that would have shipped fuel to Asian markets.

On Monday Mr. Wheeler called the decision by Gov. Andrew Cuomo of New York to reject the Constitution line “probably the worst environmental decision by an elected official last year.”

>>> A version of this article appears in print on June 2, 2020, Section A, Page 27 of the New York edition with the headline: E.P.A. Limits States’ Power To Oppose Energy Projects.

William Ruckelshaus, EPA Administrator

From Living on Earth, PRI, December 6, 2019

PHOTO: William Ruckelshaus swearing in as the first Administrator of the U.S. Environmental Protection Agency (EPA). Seen from left to right: President Richard M. Nixon, William Ruckelshaus, Jill Ruckelshaus (wife), Chief Justice Warren Burger.

William D. Ruckelshaus served as EPA Administrator from 1970 to 1973, and again from 1983 to 1985.

STEVE CURWOOD: Only one person has ever served as an Administrator of the Environmental Protection Agency under two Presidents, and that’s William D. Ruckelshaus, who died the day before Thanksgiving. William Ruckelshaus was in fact the first EPA Administrator, appointed by President Nixon in 1970, and in addition to laying the foundation for the agency and defining its mission, he oversaw the implementation of the Clean Air Act in 1970. Soon after he was tapped to run the FBI as acting director and then named deputy Attorney General. He was also fired by President Nixon during “Saturday Night Massacre” for refusing to dismiss the Watergate special prosecutor, Archibald Cox. Back in 2010 we spoke with William Ruckelshaus about his career and his reflections on how the EPA had its origins in Earth Day activism that put pressure on President Nixon to protect the environment.

RUCKELSHAUS: To centralize that enforcement and regulatory responsibility at the national level made it much more difficult for industry to escape reasonable rules guiding their emissions into the air and water by running to a safe haven—to some state that did not as strictly enforce the standards. So, I felt that we had to initially show the American people we were serious about this by strictly—not only setting the standards—but strictly enforcing them to let people know that we meant business.

CURWOOD: Now, you come back for a second bite of the apple of the EPA when you become administrator again—what, it’s 1983, it’s during the Reagan administration. Tell me, why did you come back and what changed for you in terms of your sense of the agency’s mission?
RUCKELSHAUS: I came back because the agency was in trouble and Burford who had been appointed by President Reagan had gotten herself in a whole lot of trouble, as did other appointees. They sort of bought the line that often is taken by Republicans in the administration that a lot of this social regulation—regulation to protect health, safety, and the environment—is an overreaction and the result of a sort of nanny state. She got in a lot of trouble as a result and president Reagan asked me to come back and help straighten the agency out.

CURWOOD: Now, wait a second—you’re a Republican.
RUCKELSHAUS: Right, well, I guess I still am. Barely.

CURWOOD: I believe you did support Barack Obama for president.
RUCKELSHAUS: Yeah, that’s right. I haven’t changed my mind all that much in the last 40 years, but the Republican Party certainly has moved. What I think the Republican Party has done recently is sort of give up on the environment. They rarely talk about it. I don’t think many of the candidates, or even their constituents think about it that often. And I think that’s a shame because these problems, many of them are real and need to be addressed in an aggressive way, or we’ll get in real trouble.

CURWOOD: William Ruckelshaus, the first and fifth Administrator of the EPA, died November 27th at the age of 87. He will be missed.

Related links:
- Listen to the full interview with EPA Administrators William Ruckelshaus and Lisa Jackson

- E&E News “William Ruckelshaus, twice EPA chief, dies”

- NYTimes | “William Ruckelshaus, Who Quit in ‘Saturday Night Massacre,’ Dies at 87”

WV Rivers Coalition opposes radical changes

From the West Virginia Rivers Coalition, February 28, 2019

The Environmental Protection Agency (EPA) has released a proposed rule that will dramatically reduce the scope of waters protected by the Clean Water Act. This proposal is the worst rollback of Clean Water Act protections in history. The proposal redefines what waters are federally protected, limiting Clean Water Act protections to wetlands with a “continuous surface connection” to larger lakes, streams, or rivers and removing federal protections for rain and snow dependent streams. By the EPA’s own estimate, it would remove protections from 51% of our nation’s wetlands and 18% of streams, making it easier to pollute, pave over or build on them, and states may no longer be required to clean up polluted wetlands.

The proposal also allows the agencies to adopt a far worse final rule later. For instance, the proposal invites input on whether EPA should also exclude seasonal streams from federal protection, in addition to rain-dependent ones. If the final rule also excludes intermittent streams in addition to ephemeral, that would threaten at least 70% of our nation’s stream miles, over 9 million stream miles.

With many Americans dealing with unsafe drinking water, now is not the time to cut back on clean water enforcement. We need more—not less—protection for clean water.

There are no waters that are safe to pollute. We all know wetlands flow into streams, which flow into small rivers, into bigger rivers, and ultimately the ocean. We urge you to comment in opposition to this rule, telling the Trump Administration that America needs a strong Clean Water Act that protects our drinking water and our way of life.

This is the biggest weakening of the Clean Water Act in history.

This sweeping reinterpretation of the Clean Water Act could remove federal pollution safeguards for many important streams that do not flow year-round, called ephemeral streams. By EPA’s own estimates, this accounts for 18% of streams in the United States. The proposal would also allow the agency to adopt a far worse final rule later. For instance, the proposal invites input on whether EPA should also exclude seasonal streams from federal protection, in addition to rain-dependent ones

The new proposal will mean that at least half of America’s wetlands will no longer be protected by the Clean Water Act. The proposal restricts Clean Water Act protections to wetlands with a “continuous surface connection” to larger lakes, streams or rivers. The proposal would exclude not only so-called isolated wetlands, but floodplain wetlands as well, except those floodplain wetlands that have an uninterrupted surface water connection to a perennial or seasonal waterbody. Floodplain wetlands like bottomland hardwood wetlands that are connected by periodic surface flows and shallow groundwater connections (most wetlands) would not be covered if the surface connection is severed by manmade or natural features like levees, berms, roads, etc. By EPA’s own estimate, this means that at least 51% of America’s wetlands will no longer be federally protected under the Clean Water Act.

What It Could Mean:

>>> Commercial developers would no longer need to obtain a permit before paving over or building on many wetlands — increasing flooding and damaging wildlife habitats.

>>> Oil spills or pipeline breaks into these streams or wetlands could no longer be considered violations of the Clean Water Act.

>>> Fecal matter from factory farms could overflow into unprotected streams without fear of federal consequences.

>>> Industrial facilities could discharge chemicals into unprotected streams without paying Clean Water Act fines.

>>> Water treatment plants might be able discharge partially treated sewage into streams without adhering to federal water quality standards.

>>> States may no longer be required to clean up polluted streams or wetlands;

>>> If an agency fails to take action, the public could no longer use citizens’ suits under the Clean Water Act to protect their waters.

You can and should reply and comment by April 15th here.

WV-DEP vacates permit for Mountain Valley Pipeline

From an Article by Ken Ward Jr., Charleston Gazette-Mail, September 8, 2017

Faced with a deadline to defend their permit approval against a federal court challenge, West Virginia regulators moved this week to back off their certification that the Mountain Valley Pipeline would not violate the state’s water quality standards.

The state Department of Environmental Protection said in a Thursday letter to the pipeline developers and other state and federal agencies that it “hereby vacates and remands” its water quality certification for the controversial natural gas pipeline.

Scott Mandirola, director of the WV-DEP Division of Water and Waste Management, said in the letter that the move would allow WV-DEP “to reevaluate the complete application to determine whether the state’s certification is in compliance” with the federal Clean Water Act.

“We’ve been asking WV-DEP to take a closer look at the more than 600 streams affected by this massive project from the beginning, so WV-DEP’s letter is a positive step,” said Angie Rosser, executive director of the West Virginia Rivers Coalition.

The Mountain Valley Pipeline would run about 300 miles from Northwestern West Virginia to Southern Virginia. It is a joint project of EQT Midstream Partners LP; NextEra US Gas Assets LLC; WGL Midstream; and Vega Midstream MVP LLC. The pipeline originates in Wetzel County and goes though Harrison, Doddridge, Lewis, Braxton, Webster, Nicholas, Greenbrier, Fayette, Summers, and Monroe counties before entering Virginia.

Earlier this year, WV-DEP Secretary Austin Caperton refused a request by citizen groups for a hearing on their administrative appeal of his agency’s approval of the water quality permit for the MVP project. Caperton did not explain his reasons for that decision.

The Sierra Club, the West Virginia Rivers Coalition and other groups then filed a court challenge against Caperton and the WV-DEP. The state agency is due to file a response by next Thursday to the brief filed with the 4th U.S. Circuit Court of Appeals on behalf of the citizen groups by lawyers from Appalachian Mountain Advocates.

Among other things, the citizen groups specifically challenged the WV-DEP for not fully reviewing the potential for the MVP project to degrade streams.

More than 15 years ago, the WV-DEP had sought to exempt projects that receive certain types of permits — such as the Clean Water Act general dredge-and-fill permit that MVP obtained from the federal Army Corps of Engineers — from needing to be fully reviewed under the state’s water quality anti-degradation rule. But in a 2003 decision, U.S. District Judge Joseph R. Goodwin threw out the U.S. Environmental Protection Agency’s approval of that part of the WV-DEP’s water quality rules.

Citizen group lawyers noted that ruling by Goodwin in their brief to the 4th Circuit and commented that water quality standards that haven’t been approved by US EPA “are not operative,” meaning that WV-DEP could not use the rule Goodwin threw out to avoid anti-degradation review of MVP.

The MVP project is among a collection of pipelines that are proposed or under construction across the region that are meant to take advantage of the Marcellus Shale gas boom, but are drawing opposition from local citizens and from national environmental groups.

When it initially approved the pipeline’s 401 certification, the WV-DEP issued a news release about the action and pointed members of the media to the MVP developer’s website for “information about the potential economic benefit” of the project.

In that press release, WV-DEP described MVP as a project that would “transport West Virginia’s abundant natural gas to meet the growing need for power generation in the Mid-Atlantic and Southeast regions.” The release also said that stream and wetland mitigation required of MVP under the permit would “put West Virginians to work improving streams and wetlands throughout the state.”

Jake Glance, WV-DEP’s communications director, said in an email late Friday that during the agency’s review of the legal challenge at the 4th Circuit, WV-DEP officials determined that “the information used to issue” the water quality certification “needs to be further evaluated and possibly enhanced.”

Glance said that DEP acted “out of an abundance of caution” and “to ensure that all aspects of the potential environmental impact” of the pipeline are considered. Glance also said that WV-DEP had suspended a second permit for MVP that had been issued under the agency’s program for stormwater pollution associated with oil and gas construction activities. He said that action was also “to allow for proper consideration and response to all comments received.”

“The fracked gas Mountain Valley Pipeline is dirty, dangerous and needlessly endangers West Virginia’s waterways, wilderness and communities and should be rejected,” said Justin Raines, gas committee chairman for the West Virginia Sierra Club. “This project never should have been approved in the first place and we hope this pipeline now receives the scrutiny it deserves.”

It was not immediately clear what impact the WV-DEP decision would have on the state agency’s mandate to meet a one-year deadline to review and act on a water quality certification like MVP’s or — by not acting one way or the other — waiving the state’s authority to do so.

See also: www.Marcellus-Shale.us

Fracking companies use loopholes to avoid permits for dangerous chemicals

From an Article by Laura Arenschield, Columbus Dispatch, October 23, 2014

Federal laws meant to protect drinking water require fracking companies to get a permit before using diesel fuel in the drilling process. That permit is important: Diesel fuel contains chemicals that can cause cancer and damage nerve tissues. The permits regulate the length and depth of concrete and steel well casings that keep those chemicals from reaching groundwater.

But a loophole in the law allows oil and gas companies to separately inject the same toxic chemicals without a permit, according to a report released by the nonprofit, nonpartisan Environmental Integrity Project.

Four chemicals in diesel — benzene, toluene, ethylbenzene and xylene — are the biggest worries to federal regulators and environmental and health officials. Benzene is a known carcinogen. Ethylbenzene and toluene can cause neurological problems.

The Safe Water Drinking Act requires extensive oversight if diesel is used during drilling or fracking, in part because of its benzene content. Diesel can be used, for example, as a lubricant for a pipe or drill going into the ground. Yet all those chemicals are allowed to be used during fracking without a permit issued under the Safe Water Drinking Act, the Environmental Integrity Project said.

The report shows that at least six fracking-fluid additives contain more benzene than diesel fuel, and that at least 21 contain higher concentrations of ethylbenzene, xylene or toluene than diesel.

“From a health and safety perspective, it obviously makes no sense to be restricting diesel because of concerns about its benzene content, (and not) to be doing that for products that have so much more benzene in them,” said Eric Schaeffer, executive director of the Environmental Integrity Project. “While hydro-fracking offers obvious economic benefits, that does come at an environmental cost we are just beginning to understand.”

Natural-gas production in Ohio increased by 97 percent from 2012 to 2013, according to the most recent data available from the Ohio Department of Natural Resources, the agency that regulates drilling. As of the end of June, Ohio had issued permits for more than 1,400 wells that have been or will be fracked.

For the report, the Environmental Integrity Project reviewed data on the FracFocus Chemical Disclosure Registry, a website sponsored by the oil and gas industry that collects information about the chemicals used in drilling and fracking.

Last month, a study published in the Proceedings of the National Academy of Sciences reported that while fracking does not inherently contaminate nearby drinking water with methane, poorly constructed wells with leaky casings or faulty concrete can allow the gas to leach into drinking water.

Researchers from Ohio State, Duke, Stanford and Dartmouth universities and the University of Rochester analyzed 133 samples from drinking-water wells over the Marcellus and Barnett shale formations. Barnett shale is found mostly in Texas. The researchers found eight clusters of methane-contaminated groundwater wells near shale-drilling sites — seven in the Marcellus region and one in the Barnett.

The U.S. Environmental Protection Agency announced in February that it would start researching federal and state governments’ ability to manage potential threats to water resources from hydraulic fracturing. That report is not yet finished.

Brian Kunkemoeller, a conservation project manager with the Sierra Club’s Ohio chapter, said that the Environmental Integrity Project report shows that laws need to be tightened. “Until these major loopholes are reversed, there are not enough protections on the books for clean water,” he said.

Evan Hansen speaks

.
From an Article by David Beard, Morgantown Dominion Post, January 22, 2014

CHARLESTON — Key legislators are disappointed with the Governor’s water protection bill. They said it’s too limited in scope.

Meanwhile, the president of Morgantown-based consulting firm Downstream Strategies told legislators Tuesday that the government dropped the ball in preventing this spill — when it had the information at its fingertips — and their bills and the Governor’s bill all fall short. He recommended a third way.

Downstream Strategies President Evan Hansen, speaking at a House Judiciary Committee hearing, said it’s been known since 2002 that Freedom Industries Inc. posed a threat to West Virginia American Water’s supply. That information is in federally mandated Source Water Assessment Reports, prepared for the state Bureau of Public Health and posted online.

The bureau has 342 such reports, Hansen said. They map “zones of critical concern” along waterways that supply public water, and list potential contaminant sources in those zones. Charleston has 51 such sources, including Freedom. Morgantown has 55; Huntington has 424. It appears no protection plan was in place for the zone.

In addition, the State had several means to inspect the Freedom site and prevent this spill, such as the Clean Water Act National Pollution Discharge Elimination System (NPDES) permit, which deals with spills and enables the state to inspect and enforce stormwater permits. Freedom had a general NPDES permit and did not follow protocol in notifying the state spill-response hotline about the spill.

The state also had available, through the federal Emergency Planning and Community Right to Know Act, Freedom’s Tier Two report forms from 2007 and on listing MCHM and 16 other chemicals on site. It described MCHM as an “immediate (acute) physical and health hazard.”

TWO RIVAL BILLS —  “Here’s the debate,” said Sen. John Unger, D-Berkeley, “Should we protect everyone’s water no matter where they live in West Virginia and who they are? Or should we cherry pick and not protect others?” He co-chairs the Joint Legislative Oversight Commission on State Water Resources and drafted SB 373, a rival to the governor’s bill.

SB 373 takes into account all above-ground storage tanks in the state (not already covered by other laws), requiring registration, permitting and inspections, no matter what they contain. Gov. Earl Ray Tomblin’s 38-page bill — SB 417 and HB 4258 — limits its regulation to “an industrial aboveground storage tank within a zone of critical concern that contains a volume of regulated material.” The material must have an MSDS (material safety data sheet) health hazard level of 2, 3 or 4 (moderate, serious, severe). Levels 0 or 1 (minimal or slight) are exempted.

Senator Unger pointed out the bills’ philosophical differences. SB 373 begins, “It is the public policy … to protect and conserve the water resources for the state and to provide for the public welfare. The state’s water resources are … essential to maintain, preserve and promote quality of life and economic vitality of the state.”

The Governor’s bill begins, “Industrial businesses are vital to our economy, create good paying jobs with benefits for our citizens, and ensure that commerce will continue to flourish in West Virginia.”

Inland tanks could pose a threat to aquifers and well water supplies, Unger said. “You will know what’s near your house in regards to any type of chemical facility that could potentially leak into your groundwater. … Those are fundamental differences that will have to be debated. There’s no combining the two.”

Commission co-chair Delegate Mike Manypenny, D-Taylor, will introduce a sister to SB 373 today: HB 4255. “I think that all tanks need to be inspected,” he said. Municipal water tanks require five-year inspections while above-ground chemical tank inspections are at the discretion of the owner. More than 300,000 people in West Virginia rely on well water, Manypenny said.

A THIRD WAY — Mr. Hansen said none of the bills do enough. Existing law is sufficient to prevent another Freedom spill. He said the DEP should inspect all NPDES-permitted sites, and require site-specific permits, with public review, for facilities such as Freedom’s. The Legislature should provide sufficient money for the DEP to do this.

Under the federal Safe Drinking Water Act, he said, the state should update all Source Water Assessment Reports, mandate protection plans and state-specific protective standards for chemicals, and require and assist local emergency planning committees to review the reports and take action as needed.