WVEC Legislative Update
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March 4 , 2005
Under the Dome
By Donald S. Garvin, Jr.
WVEC Legislative Coordinator
Week 4 Déjà Vu All Over Again
To our regular readers, my apologies if these Legislative Updates are beginning to sound like a broken record.
But the Dirty Water Coalition is at it again, and they are back for a third consecutive year with their proposals to strip the Environmental Quality Board of its authority to set the public's water quality standards.
This is no great surprise. The water polluters and their lobbyists in this state are relentless, if nothing else.
So, I call to your attention SB 287 and SB 433.
SB 287 was introduced by Senators Shirley Love, (D) Fayette County, and John Pat Fanning, (D) McDowell County. This is the primary "kill EQB" bill, and it would transfer the "authority to propose rules relating to water quality standards from the Environmental Quality Board to the Department of Environmental Protection."
Nothing new here - except this bill goes a step further than last year's bill and would reopen the whole antidegradation implementation plan passed by the Legislature in 2001 and throw it back into the legislative and political arena - again!
That's the real rub for these folks. Groups like the Farm Bureau, the Chamber of Commerce, the Manufacturer's Association, the Independent Oil and Gas Association, the Coal Association, and others who pollute our rivers and streams, are still unhappy with antideg.
The antidegradation provisions of the federal Clean Water Act require that states protect their highest quality streams and rivers from future pollution, and the Dirty Water Coalition can't abide that. They want the right to pollute, and the WV DEP has been most cooperative in that regard in the past.
SB 433 was introduced by Senators Walt Helmick, (D) Pocohontas County, and Tracy Dempsey, (D) Lincoln County. This is the Phase 2 "kill EQB" bill, and it would add Dirty Water Coalition members to the DEP Advisory Council.
Basically, it would add a representative of the Farm Bureau and a representative of the Timber Association to the council. But unlike a similar proposal last year, this bill would NOT add a member to the council from the wildlife conservation community, and would further skew the balance on the council in favor of the polluters.
Equally important are provisions in the bill that would allow special meetings of the council to be called for by a majority vote and allow the council, also by majority vote, to "offer suggestions to the secretary for proposed new or amended legislative rules."
Mysteriously enough, the WV Chamber of Commerce has removed its diatribe against EQB from its website, leaving only a brief position statement. But SB 287 and SB 433 represent the true agenda of the Dirty Water Coalition.
What they want is total control over who sets the water quality standards for the citizens of this state. What they want is to weaken the water quality rules for the State of West Virginia.
For the last four years there has been a relentless attack on EQB by industry and the legislature, and it has taken its toll. The result has been the resignation of key staff members and a board that has become afraid of its own shadow when defending its decisions.
And some of the recent shenanigans of the board make it difficult for me to continue to defend them myself.
But the Environmental Quality Board offers the citizens of this state a more balanced and fair process for protecting water quality than any other option proposed at this point in time.
So call Senators Love, Fanning, Dempsey and Helmick - call all your Senators, including Senate President Earl Ray Tomblin - and tell them how important it is that we protect water quality in this state and ask them to keep EQB's rulemaking authority.
We've had another blast from Old Man Winter, friends, so remember to keep your bird feeders full.
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Aluminum Committee Told To Meet In Public
By Ken Ward Jr.
Staff writer - Charleston Gazette
Article reprinted from March 04, 2005
A state Environmental Quality Board committee that is helping to rewrite West Virginia's water pollution limit for aluminum must comply with the state open meetings law.
The state Ethics Commission's Open Meetings Committee ruled Thursday morning that the law clearly applies to the board's Technical Review Committee.
In a two-page opinion, the ethics panel said that the aluminum committee "constitutes a subunit of a state board which was been authorized to exercise some portion of the board's executive power.
"The committee has been delegated authority to approve the [request for proposals] for an important scientific study, as well as to direct the vendor ultimately selected to accomplish this study," the opinion said.
The ruling is a setback for coal industry officials and for board members who had hoped some of the aluminum committee's meetings could be held in private and without public notice.
Board members asked for the ethics ruling, despite advice from their own lawyer that open meetings rules applied.
After a Charleston Gazette report Wednesday about the aluminum committee, five environmental and public interest groups wrote to the Ethics Commission to urge it to mandate public meetings.
In one letter, the Appalachian Center for the Economy and the Environment complained that the legality of the committee itself "is questionable" in the first place.
"The Environmental Quality Board, by relying on industry experts to draft water quality standards, is unlawfully delegating its state statutory and constitutional duties to outside parties," wrote Margaret Janes, the center's senior policy analyst.
"Failure of the board to provide significant oversight and real independent analysis of the standard produced by the industry consultant would constitute an illegal abdication of its duties to financially interested outside parties," Janes wrote.
Janes also pointed out that the aluminum committee has already held at least one private meeting that was not publicly noticed.
Under the state Open Governmental Proceedings Act, the committee could now be sued in circuit court to have any actions taken at that meeting thrown out.
If such a suit were filed, the environmental board could be ordered to pay the legal costs for individuals or groups who file the suit. Also under the law, board members who knowingly violate the open meetings law could be subject to criminal penalties.
Cindy Rank, mining chairwoman for the West Virginia Highlands Conservancy, wrote to the Ethics Commission that, "clearly, industry has overstepped its bounds in assuming control of the RFP and holding private meetings with their handpicked consultant.
"Their ability and willingness to meet with these consultants without the public involved is a flagrant violation of the open meetings law and is contrary to all that the board has attempted to achieve since I first attended meetings in 1979 when it was the Water Quality Board," Rank wrote.
Board members formed the aluminum committee in January, as part of their effort to meet a legislative mandate to rewrite the state's aluminum limits.
Lawmakers ordered the rewrite at the urging of coal industry officials, who said the board's existing rules were too stringent.
So far, though, coal industry officials have guided the board's study.
Industry officials wrote an initial request for proposals for a consultant who would perform the study. Then, industry officials whittled the list of potential consultants from six to four, and eventually picked the final vender.
It is not clear how much, if any, public money is being spent on the project. Unnamed industry groups and companies are said to be raising money to pay at least part of the cost.
At its initial meeting, the board committee did approve a second request for proposals that had been suggested by industry and was the basis for the six bidders.
Board Vice Chairman Scott Simonton, the chairman of the aluminum committee, said that the group would hold public meetings in the future.
But, Simonton said, he does not believe it is necessary for the panel to start the process over because of the initial closed meeting.
"I hope we don't have to stop this process," Simonton said. "This whole study will come to a screaming halt."
Board Chairman Ed Snyder said that the board would have to try to figure the situation out at its next meeting, March 10 in Charleston.
"It does appear that we have a bit of a quagmire," Snyder said. "We need to clean it up."
* Editor's note: WVEC filed comments in support of the ruling. Don Garvin, our Legislative Coordinator attended this committee meeting.
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2005 Storm Water Workshop Series
Workshop: "Forestry, Storm Water, and Sustainability"
Flatwoods Days Inn, April 13, 2005. Time: 8:30 am - 4:30 pm
Sponsors:
WV Department of Environmental Protection
Canaan Valley Institute
WV Rivers Coalition
WV Chamber of Commerce
Workshop description:
You are invited to attend a free workshop to learn how to reduce the environmental impacts of storm water discharges from sawmills and concentration yards. At this workshop we will also think ahead to the future of sustainable forestry in West Virginia.
Registration and information: e-mail workshop@downstreamstrategies.com.or call 304-291-8205. Please register by April 1. Registration is free. Lunch is on your own.
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Bills, Bills, Bills . . .
We have been trying for two weeks here at WVEC to put together our usual "Bill Tracking" list to assist us - and you - in following pertinent proposed legislation during the session. However, the WV legislative website is "under construction," as the new saying goes, so the Legislature's own bill tracking is incomplete.
Here's a short rundown on the movement of legislation so far:
All of the DEP "rules" bills were introduced and moved to committees in both houses on February 28. Senate Energy, Industry and Mining Committee (EIM) passed out all the rules, except one, this week. On the Senate side, the Judiciary Committee will next take up most of these rules.
WVEC spoke against adopting two of the air rules, Rules 45CSR14 and 45CSR19, which would replace current WV air emissions limits with weaker, controversial Federal standards that are currently in litigation. We lost in EIM, but we have another chance in Judiciary.
The one rule that was held over by EIM is the EQB water quality standards package that contains EQB's recommendation to designate three streams in Preston County for Tier 2.5 antidegradation protection. These are native brook trout streams and should be protected as such, but one committee member wanted to bring up the whole antideg issue again, so the chairman held the bill over.
The House side has not yet begun considering the DEP rules.
However, the House Judiciary Committee earlier passed HB 2333, the "Environmental Good Samaritan Act," which establishes a program to encourage voluntary reclamation of abandoned mine sites by exempting landowners and cleanup sponsors (primarily watershed groups) from financial liability.
This bill has since been approved by the full House, and now moves to the Senate for consideration. This bill has some merit, and we are working on the Senate side to tighten up some of the language.
As usual, hundreds of bills have already been introduced in both houses, and some of them border on the side of lunacy. So we are watching and working those bills as we can.
And, hopefully, we will have some legislation of our own in the pipeline soon.
Stay in touch, stay informed, and keep the communications flowing to your legislators.
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Right To Breathe Clean Air
Case No. 1: SB 46
By Allan Tweddle, WVEC Lobbyist
Starting with a basic belief that we all have an inherent right to breathe clean air, I will over the next few issues describe efforts in the legislature to take those rights away.
In this wonderful free country of ours, we are afforded "certain inalienable rights." Staring in 1215 with the Magna Carta, we have steadily improved our basic common laws that protect individuals from the actions of others that threaten our well being, our safety and our lives. We are allowed to make personal choices in life as long as they do not infringe on the lives and welfare of others without their permission.
Senator Billy Wayne Bailey, (D) Wyoming County, would reverse that. His bill - SB 46 - would specifically prohibit ANY West Virginia county health official from coming to a decision that the health of its citizens in its jurisdiction were better served by banning smoking in any public building.
Banning smoking in public buildings has swept the country like wildfire. There is good reason, which I am sure you all know. In recent years we have learned how deadly smoking can be, and that the tobacco companies not only knew it was potentially and fatally poisonous, they lace it with chemicals to keep one addicted.
Now if one chooses to subject oneself to this habit then that is a personal choice. I am not going to debate that subject here. But unlike many other risky life style choices, we all know from mountains of scientific evidence that smoking can and does trigger detrimental health conditions in people around a smoker . . . its called second hand smoke. Nothing new here.
But now we have a West Virginia Senator actually putting forth a bill to PREVENT county health officials coming to any conclusion that they need, in their best judgment, to protect the citizens of their district from the health risks of second hand smoke.
It is well established that this poisonous habit is detrimental to service workers in particular. Waitresses and waiters, bartenders - those who have these low paying jobs, often having trouble making ends meet, usually with no health care - are the ones who are the most heavily exposed to second hand smoke. If they are smokers themselves, their exposure and health risks are even worse.
Protecting them and all the public from second hand smoke is often fought on the grounds that it will cause a drop in business for the eating establishments in particular. Well, that is patently untrue. The evidence is quite to the contrary. Smokers are a minority, a status that is often used to fight the banning efforts, and no one is more mindful of the "tyranny of the majority" that John Stuart Mill wrote about.
However, the overwhelming evidence across the country in jurisdictions where smoking has been banned from eating and drinking establishments shows that the majority, non-smokers, have returned to the eateries now that the air is clear. "Business is up when there is clean air" (that's a motto that we see working elsewhere too, Governor, but more on that next week).
I respectfully suggest to Senator Bailey that his bill is a step backwards, and I challenge him to produce any credible peer reviewed scientific information that proves the need for such a ban.
And to all of our readers, I recommend that you write a note, or make a phone call to your legislators and ask them to vote NO on SB 46.
*** p.s. After smoking from age 16 to age 30, and at 2 packs a day, I quit cold turkey. So I am the "worst" kind of convert. But now at 72, I have contracted asthma, a condition I am told that is more possible IF you once smoked. So long term exposure via second hand smoke by these struggling service workers is well worth eliminating ...... Allan
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Support Urged for Voter-Owned Elections!
The Public Campaign Financing Pilot Project Act (HB 2486 & SB247) is resting in the Senate and House Judiciary committees. Problems with the bill have been acknowledged and discussed but legislators need to know their constituents want to see changes to the way we finance political campaigns in West Virginia. Although the bill has bi-partisan support most of the Republicans continue to oppose the bill and seek other sweeping reforms (term limits, single-member districts, campaign spending limits), and many Democrats remain undecided. Calls and letters from you would go a long way to move legislators from the "undecided" column to the "support" column.
Please contact your Delegate(s) and Senator(s) and voice your support of the pilot project. A pilot project will provide valuable information on how voter-owned, publicly-financed elections would work in West Virginia, by shedding light on the benefits, as well as the potential problems. Tell Legislators that the pilot project is about more than giving others a chance against incumbents, it's about promoting a more vigorous democracy by bringing more people into the political process and giving voters more choices. Incumbency will always remain a powerful factor, but more competition results in more issues being raised and debated, and holds incumbents accountable to the voters. Your voice is greatly appreciated!
Points worth mentioning to your Legislator(s):
- I support a pilot project for publicly financed campaigns because I want an election process that is voter-owned and centers on the issues.
- I'm concerned about fairness - using public money levels the playing field and gives people from many different backgrounds a fair shot at getting elected.
- I'm concerned about accountability and control - I want laws passed that focus on the needs of all voters, not just a select few who can afford to make big donations to candidates.
- I believe the publicly financed campaign bill is a sensible approach to changing the status quo. This is a new way to deal with an old problem.
- Candidate participation is VOLUNTARY.
- Candidates could spend less time raising money, and more time spent talking with voters.
- Cost for pilot project is $500,000, less than 30 cents per state resident.
- In West Virginia, less than one-half of one percent of the voting age population contributes to candidates running for office.
More Information Available at: www.wvoter-owned.org
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W.Va.'s Bottled Water Rated Tops
By The Associated Press, Monday February 28, 2005
BERKELEY SPRINGS -- A Canadian town has the world's best tasting drinking water and a West Virginia company has the world's best bottled water, according to judges at the Berkeley Springs International Water Tasting competition.
The key to winning water is whether it is refreshing, pure and "tastes alive and crisp," said Arthur von Wiesenberger, Water Master of the 15th annual tasting held Saturday at Coolfont Resort. Waters were judged on appearance, aroma, taste, feel in the mouth and aftertaste.
More than 115 entries were judged in the four categories of municipal, purified, bottled noncarbonated and sparkling water. Both the public and judges voted for the People's Choice award for the best packaging design.
Entries were from 21 states and 15 other countries.
The best municipal water was judged to be that of Gibsons, British Columbia. The next-best waters were from Daytona Beach, Fla.; Putaruru, New Zealand; Rice Lake, Wis., and the Metropolitan Water District of Southern California (tie); Washington County, Va.; and Chilliwack, British Columbia.
Le Sage Natural Wells won in the noncarbonated bottled water category. Imibe, Broadview, Saskatchewan was deemed the best purified drinking water and Roua Muntilor, Covasna, Romania, was judged the best carbonated, or sparkling, bottled water.
Juliana, Jesenice, Slovenia won the People's Choice award for packaging design.
The winners receive handcrafted fused-glass slump bowls created by Amingo Glass of Hedgesville.
More than 300 people attended the event.
Von Wiesenberger, a water authority from Santa Barbara, Calif., has been Water Master for all 15 tasting events. He said the Berkeley Springs International Water Tasting is the "only ongoing water tasting in the world. Berkeley Springs reflected the importance of water."
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And The Titanic ... Had As Many Lifeboats As The Regulations Required
By Conni Gratop Lewis
Wednesday evening, a 100 ton boulder fell off a Georges Creek (Kanawha County) mountainside - nearly flattening a home and the family inside. According to news accounts, DEP contractors had been working for years to stabilize the nearby collapsing hillside. Obviously the work was insufficient to protect the family. The boulder settled in the family's driveway, next to their livingroom.
It had covered an abandoned mine entrance. No doubt there are many more abandoned mine entrances on Georges Creek.
Needless to say, the family is moving out of their home while DEP tries to stabilize the hillside. They are upset that several years of work have not fixed the problem. Mike Richardson (responsible for emergency reclamation at DEP) stated, "I know they are very upset. I am upset. They feel like we have dragged our feet. But we have responded by the rules we have to go by."
Six years of work to address one abandoned mine entrance threatening one family? Following the rules? If the rules were so carefully followed, are they doing enough to actually protect citizens and their property? Am I missing something here? What is wrong with this picture?
Perhaps 100,000 abandoned mines are scattered throughout the state. Approximately 40,000 have been mapped by the WV Geological Survey. How long will it take to map their remaining abandoned mines? Do we even know their entrances, let alone their tunnels? How many other families face similar threats? Coal is good for West Virginia? At what price?
What if that boulder had landed on the home, not the driveway? After all there has already been one death from a mine reclamation job - the toddler in Virginia.
We nearly had more this week.
Ironically, reporters and camera crews were just down the road in Alderson, awaiting Martha Stewart's release from prison. Can you imagine what the networks would have shown had there been a tragedy?
No wonder coalfield residents claim there is no security in their homeland. No wonder they feel terror when it rains.
When humans disturb hillsides, nature tries to put itself back together. Nature doesn't know anything but the natural laws of physics. Wouldn't it be nice if humans could learn to respect those laws? And find the will and the resources to fix the mess we've made of West Virginia.
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"Go Byrdy Go"
Sculpture by Mark Blumenstein 
In the spring of 2004, renowned West Virginia artist Mark Blumenstein donated one of his sculptures titled, "Go Byrdy Go" to WVEC as a fundraiser! "Byrdy" is the third sculpture Blumenstein has donated in support of our efforts over the years.
This sculpture was donated last Earth Day during our "Artists for the Environment" spring event. "Byrdy" has been attending all of our functions since that time, and will continue to travel with as we offer raffle tickets for sale.
Byrdy's next event appearance will be "E-Day at the Capitol" on March 30th. Stop by the WVEC table and visit Byrdy in person.
Byrdy raffle tickets are also available by sending in your request for them to the WVEC office, 1324 Virginia Street East, Charleston WV 25301. The cost is $3.00 per ticket or $5.00 for two - feel free to order as many as you like!
"Go Byrdy Go" will continue to be raffled until Earthday 2005. The drawing will be held during our spring Earthday event. Byrdy will go to a lucky winner at that time.
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Nitro Chemical Firm Faces River-Dumping Charge
(From the Charleston Gazette's "State Briefs" - March 02, 2005)
Nitro pesticide maker Kincaid Enterprises Inc. has been charged with an environmental crime for dumping a concentrated brew of toxic chemicals into the Kanawha River in March 2002.
On Monday, federal prosecutors filed the charge in the form of an information, indicating that Kincaid Enterprises is cooperating with the investigation.
If convicted, Kincaid Enterprises could be fined as much as $175,000.
Kincaid Enterprises has made insecticides and pesticides at its six-acre Nitro property for decades.
To avoid hurting its downstream neighbors, Kincaid Enterprises is required by the state Department of Environmental Protection to limit the chemicals it allows to seep off its property.
Between March 6 and 13, 2002, Kincaid Enterprises dumped 45,000 gallons of wastewater containing eight times the allowable limit of toxic chemicals, according to federal prosecutors.
The corporation's alleged violation apparently has not hurt its ability to get another pollution permit from the state. Last year, the DEP renewed Kincaid Enterprises' permit to dump chemicals into the Kanawha River.
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Gayle's Words Of Wisdom
By Conni Gratop Lewis, WVEC Lobbyist
There are those of us who think the best part of a Manchin administration is Gayle Manchin, the energetic first lady. She campaigned actively, traveled statewide and made friends everywhere she went. Now she will be doing policy work, focused on children, families and education. It's been too long since we had such a first lady. (Maybe since Sharon Rockefeller?)
She offered this advise at the Union Women's Conference earlier this year; "For all of us to do better in the future, women must trust themselves, their knowledge, their experiences, and their intuition. We must prove what we can do by not believing that we can't."
These are wonderful words for us all as we work to preserve the beautiful nurturing landscape of the state for our children and grandchildren.
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Chesapeake Coal Traffic In Congress
Capito To Introduce Bill To Allow Giant Trucks To Detour On I-64/77
By Tom Searls, Staff writer - Charleston Gazette
(from March 02, 2005)
Legislation that would allow giant coal trucks to take the West Virginia Turnpike around Chesapeake is set to be introduced in Congress today by Rep. Shelley Moore Capito, R-W.Va.
Residents of the eastern Kanawha County town have complained loudly since the state made W.Va. 61 running through the middle of the town a designated coal haul road last year, allowing trucks carrying as much as 126,000 pounds to roll through.
"It would probably solve our problem," said Chesapeake Mayor Damron Bradshaw.
Town residents thought they had stopped the trucks and solved the problem of dirt and mud from them five years ago when the town purchased scales to weigh them. Prior to the Legislature designating W.Va. 61 as a coal haul road last year, trucks were limited to 65,000-pound loads through the town.
Federal law prohibits loads higher than 80,000 pounds on interstates, and the Turnpike is both Interstates 64 and 77. Bradshaw said Congress has allowed heavier loads at specific locations in six states, including West Virginia's Northern Panhandle.
"I don't think any of those are more than 93,000 pounds and this may be the biggest ever," the mayor said.
The proposal would allow up to 126,000-pound loads to travel the Turnpike from the Chelyan exit to the Belle exit.
"Local residents want the trucks out of downtown Chesapeake and it is safer for coal trucks to travel on the interstate," Capito said in a press release.
Bradshaw said Capito met Monday with state Department of Transportation officials, state Coal Association President Bill Raney and Delegate Mark Hunt, D-Kanawha, before deciding to introduce such legislation.
"I understand she has the support of [Rep. Nick] Rahall and [Rep. Alan] Mollohan, and I know she has the support of [U.S. Sens. Jay] Rockefeller and [Robert C.] Byrd," the mayor said. The congressmen and senators are all Democrats.
Bradshaw said Capito plans to attempt to attach an amendment to the federal transportation bill that would allow the weight variance.
"She's in the right party and on the Transportation Committee and if anybody has the power to do it, it's her," he said. He hopes the bill would pass by May.
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E~Day! at The Capitol
March 30, 2005, 10:00 am till 3:00 pm, Senate & House Hallways
Make this day your own 'citizens lobby day' and join us for our annual trek to the capitol. Approx. 30 organizations and sustainable businesses will have displays with loads of information and the latest news on bills of interest circulating throughout the Senate and House. Lets let our representatives know we care! Lets make this year the biggest turn out yet!!!
To register your group, organization or business contact:
Denise Poole, (304) 346-5905 or deniseap@earthlink.net
E~Day! Reception from 5:30 till 9:30 pm
This is our annual WVEC Awards Dinner & Reception. We will bestow environmental awards to our 2005 recipients who have inspired us with their outstanding work and commitment to protecting West Virginia's environment.
2005 WVEC Award Recipients:
Mother Jones ..... Dave Saville
Laura Forman Grassroots Activist ..... Judy Rodd
Green Entrepreneur ..... Myra Bonhage-Hale, LaPaix Herb Farm
Chuck Chambers Public Service ..... Libby Chatfield
Linda Schnautz Environmental Courage ..... Maria Gunnoe
(The full scoop about all these fine people in a later edition!)
Join us March 30th! Live music by Steve Himes!
Exact location in Charleston yet to be confirmed ... stay tuned!
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Legislative Session 2005 Information Sources:
Legislative Reference & Information Center:
MB-27, Bld. 1 - State Capitol Complex, Charleston WV 25305
WV Legislative web-site: www.legis.state.wv.us
(For bill tracking, bulletin board (journals), legislators' e-mails.)
To Call Toll Free: 1-877-565-3447 or local Charleston area: (304) 347-4836
WV Environmental Council Web-site: www.wvecouncil.org
Ohio Valley Environmental Coalition: If you want to easily get the latest news during the legislative session, check OVEC WV Environmental News and OVEC General Environmental News
Every morning, OVEC checks scores of news sources and post links to make it easier for you to stay informed.
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