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WVEC Green Legislative UpdateTo read the update online, scroll down to articles (or click on index links below). If you want to view or print an exact copy of the printed newsletter, try the PDF version. April 5, 2006
Under the Dome By Donald S. Garvin, Jr. The Final Hours - Ho Hum Mirabile dictu! There was no last night environmental legislation cliff-hanger at the legislature this year. The cliff-hanger this year involved something called "Logan's Law," which purported to be a bill to further regulate sexual predators, but which was in reality a political food fight to see whether the Republicans could outdo the Democrats, or vice versa. Nevertheless, I found myself sitting in the Senate gallery again watching the clock strike midnight and waiting for the legislature to adjourn, "sine die." I am obviously addicted. But after seven years of lobbying, I can't exorcise from my brain the feeling that something dreadful can happen at any time until the gavel falls. It seems to me that the 2006 Session of the West Virginia Legislature was shaped by two things. First were the events surrounding the Sago and Aracoma mine tragedies. These mine accidents drew the focus and attention of the governor and legislators for about three weeks. The governor quickly drew up a mine safety bill, which the legislature approved in just two days. The deaths of these coal miners also brought the attention of Congress and the national media to the coal industry, which meant that industry lobbyists had other things to concern themselves with than the WV legislature. Not that they didn't try. But it was embarrassing to watch Coal Association lobbyist Bill Raney asking legislative committees to approve a huge tax break for spending money on needed mine safety equipment. Mind you, this is something our coal-driven legislature would normally gleefully grant. But the timing could not have been more inappropriate, and the request was denied. The mining tragedies sort of took the wind out of Coal's sails, so much so that the industry all but abandoned its usual efforts to weaken the state's environmental laws. Not to worry though, the nation's focus on mine safety is already almost merely a memory. The Coal Boys will be back. The second event shaping this legislative session was the fact that this is an election year. Politicians like to play it safe during election years. So the hallmark of this session was mainly what was not done. Here's a list of things involving the environment that the legislature refused to do. Thankfully, they refused to consider another Senate "Anti-Wilderness" resolution (SCR 13) urging the U.S. Forest Service not to propose any new wilderness areas in the Monongahela National Forest. They refused to give committee consideration to our bills on sludge impoundments (HB 4583) and public health impact assessments (SB 663). They refused to advance a bill that would have enabled the state to develop a comprehensive energy plan, including a renewable energy portfolio with a significant emphasis on renewable energy initiatives (SB 567). The bill passed the Senate, and then died a disgraceful death in the House. (See article on page 7). Likewise, the legislature refused to advance legislation that would have: established a voluntary program for industry to measure and report "greenhouse gas" emissions (SB 756); banned the construction and permitting of windfarms until additional permitting procedures are developed by the Public Service Commission (SB 665); studied the creation of a "High Allegheny" national park (SCR 63 and HCR 24); established a deposit and refund system for beverage containers (the "Bottle Bill" - SB 136); and established a system for public financing of election campaigns ("Clean Elections" - SB 124). However, the legislature did pass one piece of legislation that will no doubt heighten the environmental debate in the 2007 legislative session. They passed a bill (HB 4550) that "clarifies" that the presumptive list of Tier 2.5 streams established in the Antidegradation Rule must come back to the legislature for final approval. Even though DEP believes the list did not have to be reconsidered by the legislature, the bill passed both houses and has been signed by the governor. It would not surprise me in the least if the Tier 2.5 stream list is next year's last night cliff-hanger. Spring has sprung and our fine-feathered friends are strutting their stuff in full color. Keep your bird feeders full so you can enjoy the full show. It's a jungle out there! Health .Pollution .Health .DEP rules .Health By Allan Tweddle, WVEC Lobbyist Simple enough.right? I wish! Last year, the DEP rammed through a modification to the State's DEP rules that had obvious negative health implications. As I reported earlier this year, when I asked the DEP attorney about this, she stated that "they NEVER consult with the Department of Health". Hello? And they wonder why their nickname is Department of Environmental Permitting. This year, we worked with physician Senator Dan Foster who drafted SB 663. This bill would have required the DEP to consult with the Department of Health and request a Health Impact Statement on any and all additions, changes or deletions to any DEP promulgated air or water rule. Operative words: would have. The bill was introduced on the Senate Floor on Wednesday during the last week for bills to be introduced. It was committee referenced first to Energy Industry and Mining (EIM) and, secondly, to Health and Human Resources (HHR). Aha.here's the rub. EIM met on Friday. HHR met on Thursday. While many actions seem to be in some sort of a time warp in the Legislature, getting SB 663 through a second reference the day before it got through the first reference was impossible even for the magic spinners of the Senate. Of course, that was the intent. Requiring a public health impact assessment was not well received by DEP or by industry. (Reference: the West Virginia Coal Association's opposition even to a voluntary survey of greenhouse gas emissions in this state. They don't want YOU to know . . .). I am pleased to report that the principle did survive, however. DEP is required to have HHR examine the Health Impact of the mercury roll back rule and report to the Legislature next year. The House Judiciary Committee Chairman added this requirement when the rules were in that committee. It survived until the very last, when lobbying efforts by industry (care to guess which ones?) changed the one word SHALL to MAY, giving DEP a legal loophole. This worries me that they can and will ignore the findings of HHR. Still, in my mind, this is a major breakthrough. We now have legislatively connected the dots.Health IS connected to Pollution. Next year, our task is clear - prove and legislate the straight line connection. Renewable Energy & West Virginia's Water During the legislative session on February 22, the WV Rivers Coalition (WVRC) and E-Council held a benefit dinner at Zando's restaurant in Charleston entitled "Renewable Energy & WV's Water" focusing on the issue of water quality and quantity. Our keynote speaker, Allan Tweddle, easily made the connection between toxic pollution from a variety of sources effecting our rivers and streams (and detrimental extractive practices that literally obliterate them) and the dire need for renewable (infinite) energy sources. WVRC's Executive Director Liz Garland and Development Director Joe Peabody spearheaded this event, attended by approximately 40 guests. Look for more such events to be held on this and other specific renewable energy subjects regularly in the future. For more information about WV Rivers Coalition visit: www.wvrivers.org. Also, refer to page 2 of this newsletter under, 'DEP Impaired Streams List' to obtain information about the draft 2006 streams list (and their condition/designation) and the public comment period until May 5. The Good, the Bad, and the Ugly By Ted Boettner, WVEC Lobbyist/WV-CAG It would be easy to fill this space with all the disappointments during this past legislative session regarding sludge legislation. In fact, it could probably take up the entire newsletter. Therefore, I think I will try something a little different. Instead of concentrating on just the bad news, let's take a cue from that famous (anti-war) spaghetti western - The Good, the Bad, and the Ugly. The Good During the 60-day session we did meet some of our goals. First, we drafted and got introduced for the first time a sludge safety bill (H.B. 4583) that, if passed, would have stopped the DEP from issuing permits to construct sludge ponds, banned coal mine waste injection, and called for a study of existing sludge ponds. Also, we assisted in getting a study resolution introduced in the House of Delegates (H.C.R. 89) that would have explored alternatives to coal impoundments. Moreover, we also assisted in getting a similar resolution introduced in the Senate (S.C.R. 49) to study the coal impoundments. The introduction of the legislation and the resolutions, along with the repeated and poignant testimony of those directly affected by sludge, did help bring awareness to the issue of sludge safety. One of the great highlights of this past session was the intrepid and moral leadership of Del. Larry Barker (D-Boone). Barker was not only the lead sponsor on both the legislation and the House resolution, but spent a tremendous amount of his time trying to convince other delegates of the importance of sludge safety legislation. Those concerned about sludge safety owe a great debt of gratitude to Del. Barker, who carried the torch amid strong odds and powerful interests. The Bad This is the easy part. While many coal field residents were living in daily fear of looming sludge impoundments and drinking water containing sludge, the legislature decided it wasn't a big enough problem to move sludge safety to the agenda. Despite the sludge bill being introduced in the middle of the session, the House Judiciary Chairman could have placed it on the agenda. It was decided that there were "too many powerful interests" to let this happen and that we'd be better off with a study resolution. After introducing the two study resolutions, both never moved out of rules committees. This is where the ugly comes in. The Ugly During the end of the session, when the sludge bill had already died, coalfield residents were promised by a powerful member of the rules committee that our study resolution (HCR 89) would move to the special calendar where it would be voted upon. However, this promise fell apart when our resolution was sacrificed in an agreement to allow an amendment regarding overweight coal trucks to reach the floor. The ugliest part about this episode was witnessing a politician perform what ethicist Harry Frankfurt calls "bullshitting." According to Frankfurt, a bullshitter is worse than a liar because he does not care about the truth and is only seeking to impress. Despite these setbacks, we will be back in the Interims and next year pushing sludge safety closer to the agenda. Until then, let's keep the pressure coming. Low Pay, Staff Cuts at Division of Forestry (The following is a Letter to the Editor from Joe Kreger of Romney, published on March 28). "Editor: I am a member of the Forestry Employees Association, a group of concerned professionals who work for the West Virginia Division of Forestry. Our organization has a number of concerns about the current and future state of the West Virginia Division of Forestry. As a public service agency that oversees one of the state's largest industries, it has become increasingly difficult to carry out our mandated responsibilities of forest fire control and the enforcement of the Logging Sediment Control Act. Because of a low salary structure, it has become extremely difficult to recruit and retain a qualified professional staff. West Virginia's forest industry produces over $3 billion annually, but is 47th in the nation in pay. The present proposal to reorganize the West Virginia Division of Forestry is to reduce the staff by 10 positions, close over half of the field offices, and increase the size of the project areas of the remaining staff. As offices are closed and positions are eliminated, the public accessibility to professional forestry services will be diminished. Excessive cost cutting, staff reductions and over-extension of personnel are not in the best interests of the public. Responsible government and public service are synonymous, but one cannot be provided at the expense of the other. The management of the forest resources of West Virginia is at stake." Well, Joe, things aren't likely going to be getting better at the Division of Forestry any time soon. As you know, the funding for your agency largely comes from the severance taxes the state collects on harvested timber. However, the timber industry was successful in getting the legislature this year to reduce the already-minimal severance tax on timber harvesting (SB 371). Good luck. By Linda Frame, linda@wvcag.org So what happened to the Bottle Bill during the 2006 Legislative session? The good news is that our bill, SB 136, made it further than ever before. It passed out of the Senate Judiciary Subcommittee and made it on to the Senate Judiciary Committee's agenda. From there it was voted out as a Senate Resolution to be studied during the interims. The resolution was not taken up by the full Senate before the Session ended, but we are hopeful the bill will still be studied this year. You may remember it was selected for study last year but nothing happened. Please take a moment to send a quick thank you to Senator Jeff Kessler, Chairman of the Senate Judiciary Committee (kessler@mail.wvnet.edu or 357-7880 or 1-877-565-3447 toll-free). He gave the Bottle Bill attention despite an amazingly strong opposition from the retailers, bottlers, distributors and wholesalers. Please thank him for putting SB 136, the WV Container Recycling and Litter Control Act (AKA Bottle Bill) on his committee's agenda. I can't thank you all enough for all the e-mails and phone calls to your legislators. We definitely have an uphill battle but over the next year we will do even more coalition building and public education on our deposit law legislation, and who knows? After this year's election maybe we will have a friendlier political make-up to help us get our bill even further next year. In other news, I was able to attend the "Trash Summit" in DC on March 16 where my goal was to meet other recycling activists from the region. My hope is to build a regional coalition of support for bottle bills. If our neighbors in Maryland, Virginia and Pennsylvania are working toward the same legislation, the whole issue of lost sales across the border due to a 10-cent deposit will become moot. The summit's goal was to lay the planning groundwork for a trash-free Potomac River by 2013. Both West Virginia and our deposit law would have a huge impact on making this goal a reality. We will also be making contact with folks from Ohio and Kentucky. If you are from Grant, Hardy, Mineral, Hampshire, Morgan, Berkeley or Jefferson counties and want to get more involved, let me know. The organizers are looking for government groups like county commissions and city councils to sign on to the Trash Treaty and Action Plan. I would be happy to talk to you more about their noble efforts and you can also visit http://www.trashfreepotomac.org/ . Thanks again for all of your support! Legislature Orders Public Health Impact Assessment of Mercury Emissions By Donald S. Garvin, Jr. The presence of toxic mercury in West Virginia rivers and streams may have been the most important environmental issue dealt with during the 2006 Session of the West Virginia Legislature. Mercury is a highly toxic substance that bioaccumulates in the food chain. There is a fish advisory recommending that individuals limit their consumption of fish caught in every West Virginia stream due to the high levels of mercury. Most mercury is emitted from coal fired electric plants. Since the regulation of mercury obviously involves the politics of coal, our readers would not be surprised that West Virginia's Department of Environmental Protection proposed a rule for regulating mercury air emissions that adopts a Bush Administration EPA mercury "Cap and Trade" rule that actually delays any specific action to reduce mercury until after 2010, and will not result in adequate reductions in emissions of mercury from coal-fired power plants to protect public health until 2018. It should also not be a surprise that our state's coal-driven legislature adopted the DEP rule. But in an unusual moment of legislative sanity, they added an amendment to the rule that requires DEP and the Bureau of Public Health to conduct a study of the potential human health risk from mercury; DEP is also required to examine the availability and cost of technologies to limit mercury emissions. So, while the legislature has allowed DEP to implement the weak air rule for mercury later this year, DEP and the Bureau of Public Health are required to report the results of their studies to the legislature next year. Given the politics of coal in West Virginia, this can only be seen as a major victory for the environment. WVEC worked strenuously on this rule, but the credit for victory must be shared with a larger coalition of groups concerned about the severe health impacts resulting from mercury air emissions. We worked closely in this effort with leaders of the WV Nurses Association and West Virginians for Affordable Health Care, medical doctors, and leaders of religious groups concerned about health issues. To all those who worked with us in this battle I say, "Thank you." I hope we can continue to work together to further establish the important link between human health and environmental regulation. By Julie Archer and Janet Keating Well, we really aren't interested in cigars, but Clean Elections would be nice. Unfortunately another legislative session has come and gone and we are still without a public financing system in place in West Virginia. That's the bad news. The good news is we got closer to passing Clean Elections than in any previous session and we can take pride in the progress we made. SB 124, the WV Public Campaign Financing Act was voted out of Senate Judiciary; and for the first time ever, Senate Finance Chairman Walt Helmick allowed a discussion on the measure. The bill was on the committee's agenda so members could hear testimony from Todd Lang, the executive director of the Citizens Clean Elections Commission in Arizona, one of the nation's pioneering Clean Elections states. We were disappointed, however, that there was no discussion of the West Virginia legislation, which in many ways mirrors Arizona's, and that the bill was not put to a vote. We believe we had the votes to advance the bill, and even Senator Helmick acknowledged that Todd's presentation "may have answered many critic's questions," adding to our frustration. It was rather dramatic when so many of us walked out when it was clear no vote would be allowed. Hopefully the committee took notice! Helmick told the Associated Press, "I think next year is the year that campaign finance will be looked at very strongly." After 3 years of not placing the bill on his committee's agenda, Helmick is now on the record saying that campaign finance reform will be given serious consideration in 2007, and we need to hold him to it. In addition to the progress we made on the Clean Elections legislation itself, a Senate bill (SB 285) that would have provided a one-time allotment of a million dollars to jump-start the Clean Elections fund from the sale of unclaimed property, passed the Senate. The bill also came very close to passage in the House. We even had a victory in the House Judiciary Committee when an amendment to strip the bill of this provision failed on an 8 to 15 vote. As funding has proven to be a major stumbling block for advancing Clean Elections, it would have been nice to have the funding issue at least partially addressed in advance of next year's session. Unfortunately, lobbyists for the retailers and credit card companies who opposed a provision in the bill dealing with gift cards were able to get the House leadership to pull the bill and place it on the "inactive" calendar on the last day of the session. At this time we'd like to say thanks again for your calls, e-mails and letters of support to legislators. We're also pleased that so many of you attended the meeting of the Senate Finance Committee to hear Todd Lang. Thanks again to our partners at the Reform Institute in Alexandria, VA for sponsoring Todd's visit to West Virginia. We'd also like to thank all of the other groups who passed our e-mails along and sent out action alerts - including the Association of State, County and Municipal Employees (AFSCME) Local Council 77, the Legislative Action Team on Children and Families, the Monongalia County League of Women Voters, National Association of Social Workers-WV, Ohio Valley Environmental Coalition, WV Citizen Action Group, WV Democracy for America, and anyone else I may have inadvertently forgotten to mention here. And last but not least, thanks to all of our legislative sponsors and supporters for their continued willingness to champion this progressive reform aimed at changing the political status quo. Gazette reporter Phil Kabler noted in a recent column that Sen. Jay Rockefeller had hosted a re-election fundraiser for Sen. Robert C. Byrd at his home near Rock Creek Park in Washington, D.C. According to Kabler, it was a packed house, and preliminary estimates put the total raised in the $150,000 to $200,000 range. Kabler said, "Although those in attendance were predominately from metro Washington, a number of West Virginians attended, including state Sen. Truman Chafin, D-Mingo, and wife Tish; Shepherdstown businessman Ken Lowe; Gazette publisher Betty Chilton; Scott Rotruck from the Morgantown Chamber of Commerce; Marshall med school dean Charles McKown and Marshall Vice President Betty Cleckley; Michael Yura, with the National Biometrics Security Project in Morgantown; as well as representatives of the National Mining Association, American Electric Power, Consolidation Coal and the United Mine Workers." Need we say more about the need for campaign finance reform? Coal Industry Seeks to Expand Coal Haul Road System By Julie Archer The Coal Resource Transportation Designation Committee (CRTDC) met on March 29 and listened to two presentations on routes that coal companies in Randolph and Nicholas Counties would like to have added the existing Coal Resource Transportation System (CRTS). In Randolph County, Carter Roag, a subsidiary of United Coal Company, wants to use bigger and heavier trucks on approximately 18.5 miles of roads, including portions of County Routes 20, 34, 34/4, 35, 42 and 46. The Division of Highways (DOH) has completed a preliminary evaluation of the roads and has estimated that approximately $3.8 million dollars in work would need to be done to these routes to make them "safe and sufficient" for a maximum legal weight limit of 120,000 pounds. Chicopee Coal Co. in Nicholas County also wants to use larger, heavier trucks to haul coal on routes in both Nicholas and Clay Counties. The proposed additions to the CRTS include portions of County Routes 16/29 and 1/16 in Clay and County Routes 20/21 and 20/1 in Nicholas. The total estimated cost for necessary improvements to these routes is $6.2 million. Public hearings on both proposals will be held in the near future (most likely May or June), followed by a 30-day public comment period. We'll keep you posted. In the meantime, if would like more information on these proposed projects please feel free to contact me by calling the WV-CAG office or e-mail julie@wvcag.org. Copies of the draft evaluations can also be requested from the DOH. (Note: Julie was lead lobbyist for WV-CAG on the over-weight coal truck legislation and was recently appointed as a public representative to the Coal Resource Transportation Designation Committee). SB567. One Man, One, And Only One - Vote By Allan Tweddle, WVEC Lobbyist This session Senator John Unger, with the assistance of staff from the Department of Commerce, drafted SB 567 - a bill that pulled together all of the existing staff and their funding that were spread elsewhere in several departments into one Department of Energy. In brief, SB 567 brought together knowledgeable administrative staff members who are involved in matters of energy technologies and policies to create a centralized support organization for the Public Energy Authority. The need for such a support staff became obvious as the PEA began to consider how to develop a comprehensive energy policy and, subsequently, a comprehensive energy plan to benefit all citizens of the State. The vision of the PEA, and in particular the vision of this writer as a PEA member, was, and still is, that such a comprehensive energy plan can and will create new jobs and businesses in every county. The bill made sense. It provided the Public Energy Authority with specific support staff to help with prudent research and policy analysis to achieve a sound set of policies and guidelines. Unfortunately, the PEA will not get a single support organization in the administration this year. Thanks to one delegate. One delegate - Harold Michael, whose position as Chairman of the powerful House Finance Committee allows him to "exercise" his position to cast only his vote. How? By not putting the bill on his committee's agenda. In one arbitrary action, he precluded any discussion, dissension, opinion or votes by anyone else. One delegate killed it. Is that Democracy at work? Well, it is how things work in our State Legislature, in City Councils, even in Congress. Powerful committee chairmen can defeat the democratic principle of one-man one-vote. In this case, I was told that the bill was killed simply because the Chairman didn't like the sponsor.and that the Governor supported it! It actually happened twice! One chairman told me that it had nothing to do with the bill, its merits, or me. It was just who was behind it! The vision of the PEA preparing a comprehensive energy plan will survive, in spite of in-fighting and personal grudges. I believe that a comprehensive energy plan is in the best interests of all West Virginians. I intend to press forward to bring energy choices to our citizens like other States enjoy, including renewable energy in all its emerging forms. Who knows? Such a plan might even bring new jobs to Delegate Michael's district, too. DEP Impaired Streams List The West Virginia Department of Environmental Protection has released the draft 2006 impaired streams list for public comment. The comment period is open until May 5. Every two years, in compliance with federal regulations, DEP is required to update its list of impaired waters commonly known as the 303(d) List. The 303 (d) List is compiled from all readily available data and serves as an inventory of waters for which total maximum daily loads (TMDLs) must be developed. This list is made up of waters that fail to meet water quality standards and/or support their designated uses such as public drinking water supply, aquatic life propagation, or contact recreation. In order to allow public participation in the listing process, a comment period has been established to receive public input. The draft 303(d) List may be viewed on DEP's website at http://www.wvdep.org/item.cfm?ssid=11 Comments may be submitted to jlyons@wvdep.org or via U.S. Mail at West Virginia Department of Environmental Protection, 601 57th St. S.E., Charleston, WV 25304, Attn: Judith Lyons.
(All the DEP rules have been passed by the House as a bundle, HB 4135, and are now before Senate Judiciary Committee).
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2206 Washington Street East - Charleston, WV 25311 (304) 414-0143 www.wvecouncil.org |