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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. February 15, 2008
By Donald S. Garvin, Jr. Week 6 – Shelter In Place! The "mysterious blue haze" that descended on the Kanawha Valley several weeks ago provided some excitement for the Lobby Team as we prepared the Legislative Update that Friday afternoon. While we joked about it at the office and just kept on working, the response from the media and health officials and even the Department of Environmental Protection was pretty much like a bad joke. There were conflicting accounts of what was causing the "event" and conflicting warnings advising residents to "shelter in place" – or just not to worry. It was a circus, albeit a serious one. DEP officials apparently still are not exactly sure what happened. First they said they believed the hazy blue cloud that smelled like chlorine was caused by a temperature inversion and normal emissions from the John Amos power plant. Next they said it was caused by a temperature inversion and emissions from new pollution scrubbers at the John Amos plant. And they still aren’t sure if there were any pollutants in the blue haze mix that could be harmful to the public health. Well, keeping all this in mind, let’s consider HB 4438 (and its companion bill SB 626), a bill that would "streamline" air pollution permits and actually allow construction to begin before all the permits are received for new "minor sources" of air pollution. Some of our friends inside the capitol building have dubbed this "The Mysterious Blue Haze Bill." Never mind that nowhere does the bill spell out exactly what "major sources" or "minor sources" are. Never mind that nowhere does the bill spell out exactly what "major modifications" or "minor modifications" are. Never mind that the bill shortcuts the public comment process on these permits. It is the very concept of HB 4438 that is bad public policy in the first place. Once a shovel has been dug into the ground, once thousands or perhaps millions of dollars have been spent, whom do you know at DEP who would be willing to deny the permits? Perhaps that is an unfair question. But there can be no doubt that the pressure to approve the necessary air pollution permits for these projects would be overwhelming. This is simply the worst kind of public regulatory policy. HB 4438 is basically the same bill that lobbyists for the Chamber of Commerce and other air polluters such as oil and gas, coal, and the electric utilities have been pushing for the last couple of years. Until now, the DEP has opposed the legislation. But last year DEP held meetings with the industry folks to negotiate compromise language and the agency says it now supports the bill. What’s worse is that the bill has been "fast tracked." It was introduced just late last week, and was only single referenced to the House Government Organization Committee (skipping the less friendly House Judiciary Committee altogether). The bill was placed on the Gov Org agenda for consideration early this week, and yesterday, the committee passed the bill. On the positive side, we’ve been told that the bill will be referred to House Judiciary when it hits the floor for first reading. So here’s my advisory warning to our readers this week: "Shelter in place – the Legislature is in session." Be kind to our fine-feathered friends and keep your bird feeders full. The Legislature is considering (slowly) two sets of DEP rules that will significantly impact clean water – for the better – in West Virginia. The first of these is the Water Quality Standards rule (47CSR2), which greatly expands the list of trout streams (called the "B2" list) which deserve water quality standards that are higher than drinking water standards. This is an excellent rule proposed by DEP and the West Virginia Environmental Council strongly supports it. The second is the Antidegradation rule (60CSR5), which contains the controversial Tier 2.5 stream list. Industry folks hate the Tier 2.5 designation because it limits their ability to degrade the state’s most pristine waters. As proposed this year by DEP, the Antidegradation rule would result in the removal of Tier 2.5 protection from one half of the streams which DEP last year qualified for Tier 2.5 status as "Waters of Special Concern." The proposed reduction from 309 streams down to 156 was purely politically based and has no scientific basis. In fact, DEP has already said that all 309 streams qualify for Tier 2.5 protection. Fortunately, just prior to the start of the 2008 Legislative Session the Joint Interim Legislative Rule-Making Review Committee voted to restore the Tier 2.5 stream list to the 309 streams proposed by DEP last year. Unfortunately, two weeks ago the Senate Natural Resources Committee voted to cut the list down to just 108 streams, a move that was again based purely on politics and not on science. The DEP went through a 6-year process and spent about $1 million to develop the antidegradation policies and to establish the initial Tier 2.5 list. Tier 2.5 allows some stream degradation as it is, but such degradation is limited to no more than 10% of a stream’s assimilative capacity. Lowering the standard from Tier 2.5 to the next level – Tier 2 – would allow for stream degradation of all of the stream’s assimilative capacity. The Tier 2.5 concept itself was a compromise with industry in the first place to avoid having to list all reproducing trout streams in the Tier 3 category, which would allow no degradation. But now, the "Dirty Water Coalition" – a powerful group of polluters including agriculture, timber, coal, oil and gas, manufacturers and the Chamber of Commerce – is rejecting the very compromise it demanded and agreed to and has launched an all-out assault on West Virginia’s most pristine rivers and streams. The political pressure from the "Dirty Water Coalition" is apparently working. As a result of their massive six-year misinformation campaign the DEP, the state legislature and West Virginia’s Governor continue to compromise with the "Dirty Water Coalition" instead of protecting the state’s invaluable water resources for the future. However, other voices are now beginning to be heard in support of stream protection. Just this week, for example, the national Trout Unlimited organization sent out an action alert to its members urging them to contact West Virginia legislators in support of the original Tier 2.5 stream list. So now is your opportunity to help turn all this around. On the Senate side, the antidegration rule must still be taken up by both the Senate Finance Committee, and then by the Senate Judiciary Committee. And the House has not even begun consideration of these rules. So come to E-Day on Feb. 22nd and "Rally for the Streams." It will be the perfect time to lobby your legislators and tell them "no more compromise" on protecting West Virginia’s streams. Will LEED Lead Anywhere This Session? By Vickie Wolfe, WVEC lobbyist First of all, a bit of explanation about LEED®. The Leadership in Energy and Environmental Design (LEED) Green Building Rating System™ encourages and accelerates global adoption of sustainable green building and development practices through the creation and implementation of universally understood and accepted tools and performance criteria. Developed by the U.S. Green Building Council, the LEED system provides a suite of standards for environmentally sustainable construction. Since its inception in 1998, LEED has grown to encompass over 14,000 projects in 50 U.S. states and 30 countries covering 1.062 billion square feet of development area. LEED was created to accomplish the following:
Green Building Council members, representing every sector of the building industry, developed and continue to refine LEED. The rating system addresses six major areas:
LEED has a scoring system based on a set of required "prerequisites" and a variety of "credits" in the six major categories listed above. In LEED v2.2 for new construction and major renovations for commercial buildings, there are 69 possible points and buildings can qualify for four levels of certification:
LEED certification is obtained after submitting an application documenting compliance with the requirements of the rating system. Certification is granted solely by the Green Building Council. In West Virginia, only nine buildings are LEED certified, according to the Charleston Gazette; one of them is the new DEP building in Kanawha City. As we told you in an earlier issue of G.R.E.E.N., Delegate Barbara Fleischauer introduced a bill (H. B. 4066) that would require all state buildings over 5,000 square feet in size to meet the LEED silver standard, at a minimum. The bill has been introduced in the Senate (S.B. 568) by Senators Jon Hunter and Brooks McCabe, although the Senate version removes the mandate, saying instead that "LEED standards should be included in the design process," and that "the LEED silver standard should be the goal where practical and financially affordable." Also, the Senate bill applies only to buildings over 50,000 square feet. The West Virginia chapter of the American Institute of Architects does not support a mandated LEED standard, saying that designing a building so that it meets the LEED standard is more expensive for them, but that there’s a ceiling on what they are allowed to charge for designing a state building. We’ve also learned recently that at this point, using wood harvested in West Virginia would not help a building achieve the necessary points for LEED certification. While LEED does encourage the use of local construction products because of the environmental impact of transportation, it seems that timbering operations must pay the USGBC to perform a site visit for the purpose of certifying that their operating practices are acceptable. One would hope that West Virginia timbering operations would make this investment should this legislation be passed. And at this point, that’s looking more and more questionable. The bills have been referenced to the Government Organization and Finance committees in each legislative house, and so far neither has "moved." Only three weeks remain in the session. But consider how many times the Clean Elections and Bottle bills have been introduced; neither has become law yet, but both gain momentum each year. I am confident we will have a "green buildings" bill in a future session if not this one. "We Don’t Need No Stinking ... Campaign Finance Reform . . ." Lobbyist Spending in ’07 Tops $350,000 Lobbyists spent a total of $353,750 feeding, entertaining and gifting legislators and other public officials during 2007, according to disclosures filed with the state Ethics Commission. In the third reporting period (for September-December 2007), lobbyists spent a total of $75,938, although perhaps as much as half that amount was in the form of campaign contributions to incumbents. The top spender in the reporting period was Charles Town Races lobbyist Nikki Barone, who disclosed spending a total of $11,028. Of that, $10,067 went to cover the costs of 149 public officials who attended a Sept. 10 reception at the racetrack during legislative interim meetings in Martinsburg. Total cost of the reception was $18,067, or $72.27 per attendee. Another big expense report was from Brenda Nichols Harper, who listed $5,516 to provide meals and lodging for speakers at the West Virginia Chamber of Commerce’s annual meeting at The Greenbrier August 29-31. Speakers included Supreme Court Justice Elliot "Spike" Maynard, $442; Sens. Evan Jenkins (D-Cabell), $592, Brooks McCabe (D-Kanawha), $913, Ron Stollings (D-Boone), $253, Don Caruth (R-Mercer), $368, and Jeff Kessler (D-Marshall), $566; Delegates "Mr. Speaker" Rick Thompson (D-Wayne), $608, Carrie Webster (D-Kanawha), $536, and Tim Armstead (R-Kanawha), $40.35 (Armstead attended only the Friday breakfast); then-state Revenue Secretary Rob Alsop, $469; and Insurance Commissioner Jane Cline, $525. Also, Spilman Thomas attorney/lobbyist Mike Basile spent $586.80 to pick up the dinner tab at the Pazza Nolte in New York City for six Manchin administration officials during the World Business Forum on Oct. 10. Attending the dinner, at a cost of $97.80 per, were Gov. Joe Manchin, aides Larry Puccio, Jim Pitrolo, Lara Ramsburg, and Commerce Secretary Kelley Goes, as well as an officer from Manchin’s security detail. Meanwhile, the most unusual expenditure came from the West Virginia Coal Association’s Bill Raney, who spent $1,473 to have two dozen holiday fruit baskets delivered to various state offices. That included six baskets to various Department of Energy offices, six to offices of legislative leaders, three to the governor’s offices, and a basket each to the presidents of Marshall and West Virginia University. (From a February 4 column by Charleston Gazette staff writer Phil Kabler). By Carol Warren, Clean Elections Coalition / OVEC The Public Campaign Financing Act (HB 4050) may be taken up soon by the House Judiciary Committee. Our proposed legislation would set up a voluntary system for the public financing of state legislative races. If you have not made calls or contacted the committee members, please do so as soon as possible. A list of the members and their Capitol telephone numbers appears below. Our sponsors are noted by an asterisk (*). Please thank them for their support and encourage them to speak for the bill.
DEP Protecting Coal Industry on Selenium In November 2006, environmental group lawyers warned Hobet Mining that its Boone County operations were dumping too much selenium into tributaries of the Mud River. Lawyers Derek Teaney and Joe Lovett told Hobet that the West Virginia Highlands Conservancy and the Ohio Valley Environmental Coalition planned to sue the company over its alleged permit violations. The formal notice of intent to sue gave the company 60 days to fix its pollution problems. Federal law requires citizens to give companies and regulators such notices before filing a Clean Water Act lawsuit. On Jan. 12, 2007 - the 60th day after the Hobet notice - the West Virginia Department of Environmental Protection filed its own selenium lawsuit against Hobet Mining. Under the law, if DEP "has commenced and is diligently prosecuting" its own case, the citizen groups are prohibited from suing Hobet . . . . . . But the January 2007 lawsuit isn’t the only time that DEP officials have stepped in and effectively blocked a citizen effort to force coal companies to reduce selenium pollution. Three months after that suit, in March 2007, Teaney and Lovett filed more legal notices. This time, they targeted six more permits, including four new permits that weren’t part of their initial lawsuit notices. By mid-May, DEP lawyer Tom Clarke had sought to amend his agency’s pending suit in Boone Circuit Court, to add the new permits targeted by the environmentalists. Since that May 18, 2007, filing, DEP officials have taken no action in the case. They haven’t asked for an injunction. They haven’t taken depositions or sought records from Hobet Mining. DEP has done nothing to move the suit forward toward a court order that would force Hobet to comply with its permit limits for selenium, court records show. So last week, Teaney and Lovett filed their own lawsuit against Hobet. They argue that DEP has dropped the ball, and that a judge should let citizens seek their own injunction against the coal company. "This attempt to protect the coal industry, which it is charged with regulating, is the logical conclusion of the WVDEP’s general failure to enforce the Clean Water Act against this industry," Teaney and Lovett wrote. This is an exerpt from a February 10 Charleston Gazette article by reporter Ken Ward, Jr. ATV Bill Clears Senate Transportation and Infrastructure Committee By John Christensen, WVEC Lobbyist On Tuesday, SB 567, the controversial ATV bill, was passed out of the T & I committee with amendments to explain what a shoulder is and when it would be acceptable for an ATV rider to use them. I came late to this issue so bear with me since I don’t even like these things, don’t own one personally, and have only ridden one once while on vacation in Mexico (it was a blast though I hate to admit). The intent of this legislation is to outlaw "joyriding" on any paved roads in the state - only allowing an ATV rider to cross a road perpendicularly to get to the other side, and presumably to a marked lawful trail. As you may know, our state has been besieged with fatalities involving ATV riders in the last few years. It was interesting to find out the numbers as well as the circumstances surrounding these unfortunate incidents. Of the 45 fatalities involving ATV’s last year, 31 of them happened on paved roads. This seems reason enough to pass a law until you find out that a large number of those fatalities were alcohol and drug related. A lively discussion ensued in earnest with this revelation as senators love to talk about smoking, snorting and drinking in these committee meetings. The bill is not intended to punish responsible, sober, law abiding riders and it is crafted to encourage municipalities to post signs alerting motorists of the presence of ATV’s in special situations where they are already allowed. As an example, the Hatfield- McCoy trail is exempt from this new law. The amendments were offered by Senator Stollings and accepted by the committee. It allows for an ATV to travel on the shoulder of a road to get to a trail and where no shoulder existed, to travel on the far right of a paved road as much as possible in order to avoid any chance of involvement with a motor vehicle. We in the environmental community are adamantly opposed to these vehicles operating in sensitive, protected areas where any sort of gas fired or otherwise wheeled mechanized device is strictly prohibited. This bill indirectly is affects that issue. The bill goes on to the senate finance committee next. E~Day ~ "Rally For The Streams!!" At The Capitol: ~ House & Senate Halls / Upper Rotunda (well) area
E-Day Reception & Benefit Deluxe Soup & Salad Bar Dinner: Todd Garlands Vegetarian Black Bean Chilli, Poole's Potato Soup, Poole's Brocoli & Cheese Soup, Vegetable Soup, Rowan's French Onion Soup. Variety of salads. Fresh bread from Charleston Bakery, desserts, drinks, ordeurves & more. 6:00 - 7:00 pm: Music by, The Blue Notes (Steve Himes, Mac Cary, Chris Hudson)
(NOTE: We are tracking all the DEP rules. Senate bill numbers for these rules are SB 369 – SB 392 and SB 456. House bill numbers for these rules are HB 4179 – HB 4194, HB 4221 – HB 4230, and HB 4284). |
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2206 Washington Street East - Charleston, WV 25311 (304) 414-0143 www.wvecouncil.org |