WVEC Green Legislative Wrap Up
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March 29, 2010
Under the Dome
By Donald S. Garvin, Jr.
WVEC Legislative Coordinator
WVEC’s Role
The 2010 regular session of the 79th West Virginia Legislature was the perfect example of why we need the West Virginia Environmental Council.
This year a combined 2, 079 bills were introduced in the House of Delegates or the Senate. Among the bills that were introduced, 219 bills would finally be passed by both chambers, 98 House bills and 121 Senate bills.
Many of the bills that finally passed involved environmental issues or concerns. Many, many more of the original 2,079 bills involved environmental issues.
In fact, there were so many that we had trouble keeping track of them all. The list of bad bills alone could have taken up an entire Bill Tracking page in our weekly Legislative Update.
But the number of bills introduced this session was itself not out of the norm. Similar numbers have been introduced in recent years.
What was unusual this year was how many of those bills were "active" at some time during the session. There were many days this year when it took all four of us on the WVEC Lobby Team in Charleston to cover committee meetings that were occurring all at the same time.
Because we were covering so many different bills, we were also forced to watch more floor sessions. This was a real team effort.
Here are just a few examples of bills not mentioned elsewhere in this newsletter that took up our time:
Early in the session WVEC lobby team member Denise Poole had to put forth a major effort to defeat SB 85, the bill that would have repealed West Virginia’s statutory ban on the construction of nuclear power plants until they are proven safe. We won this one, when the Senate Judiciary Committee voted against the bill.
Likewise early in the session, WVEC lobbyist Leslee McCarty had to play defense on SB 181 and HB 4505, bills that would have limited counties and municipalities from enacting ordinances regulating natural resource extraction. These bills never made it out of committee, thanks in large part to Leslee’s efforts.
Similarly, WVEC lobbyist John Christensen worked tirelessly in support of two bills dealing with recycling. One of those bills passed — SB 398, which prohibits the disposal of certain electronic devices, such as computers, monitors, and television sets in a West Virginia solid waste landfill. The other bill failed — SB 489, would have required the WV Solid Waste Management Board to study the state’s recycling success rates. John worked hard on both bills.
Along the same lines, there were at least a dozen great renewable energy bills introduced this session. The main sponsors of these bills were Delegates Barbara Fleischauer (D-Monongalia), Nancy Guthrie (D-Kanawha), and Mike Manypenny (D-Taylor). While none of these bills advanced far, the WVEC lobby team spent hours working them.
And I spent a big chunk of time trying to convince the chairmen of both Judiciary committees to block two bad DEP bills that we had successfully managed to derail the previous three sessions. Those were SB 496, which made terrible revisions to the DEP Advisory Council, and HB 4277, which gives the authority to sign NPDES water quality pollution permits to the DEP Secretary. I failed in both cases.
But overall, I feel like we made ground in a couple of areas this session. First of all, we advanced a real discussion on energy issues further than we have in the past. Part of the credit for that goes to the WVEC lobby team for lobbying legislators really hard, and part of the credit goes to some really strong legislative allies, particularly on the House side.
Secondly, we greatly expanded our network of lobbying allies — from WV CAG, to WV SORO, to members of the Sludge Safety Project, to the faith-based lobbyists, and even to union lobbyists from the AFL and the ACT Foundation. We also established a great new relationship with Sarah Halstead Boland from the WV Green Buildings Council and Green Works, WV.
Gary Zuckett pretty well summed things up when talking about WV CAG’s lobbying efforts this week in the Capitol Eye: "You can be proud that your lobby team was there every day (and many, many evenings) helping our allies and opposing our enemies in this annual struggle of might against right."
The same should be said for my colleagues on the WVEC Lobby Team – Denise Poole, John Christensen, and Leslie McCarty. They made us all proud.
And because of them, and all our allies, WVEC continues to have a more credible presence for the environment at the Legislature every year.
Spring is finally here and songbirds are beginning to take on their brightest colors, so clean your bird feeders and keep them full and continue to enjoy the show.
Senate Bill 614 Protects West Virginia
By Bill Howley
Senate Bill 614, supported by the WV Environmental Council, Stop PATH WV and WV Citizens Against PATH, as well as thousands of citizens across West Virginia, has passed the 2010 West Virginia Legislature and is going to Governor Manchin for his signature.
The bill passed the WV Senate on a unanimous vote and the WV House of Delegates with only two voting against it. The bill was amended three times, and the complete version of the final bill has not yet been posted on the Legislature’s web site.
Senate Bill 614 contained two main provisions. The bill is directed at the way the West Virginia Public Service Commission handles applications for certificates of convenience and necessity for high voltage (over 200 kV) transmission lines.
West Virginia law on these transmission projects had failed to require the PSC to give priority to the impacts of new lines on West Virginia citizens and consumers. Senate Bill 614 remedies that problem by including these impacts in the list of impacts that the PSC must consider in these cases.
Existing West Virginia law also did not require that land owners who are under threat of land seizure for power lines be given notice when power companies file their applications at the PSC. Senate Bill 614 requires that all land owners within the power line’s 2200' wide preferred construction corridor be given at least 30 days notice, by certified mail, that they have the right to intervene in the PSC case at least 30 days before the PSC sets a deadline for intervenors.
In both recent power line cases involving the PSC (the approved TrAIL line and the pending PATH line) many land owners were prevented from exercising their rights to intervene in PSC cases, because they only found out that their property would be affected after the PSC closed the cases to new intervenors. Only intervenors can participate directly in decisions about whether the power line is needed or where it will be sited.
Senate Bill 614 will protect West Virginia power consumers, land owners and citizens from the abuses suffered as a result of the TrAIL power line that the PSC approved in 2008. While the land owner protection provisions of the bill will not apply directly to the pending PATH case, the bill’s other provision will influence presentation of evidence as the PSC considers evidence concerning PATH.
(Howley is the author of "The Power Line, the View from Calhoun County," a Web log that has been covering WV power line issues since 2008. You can read his blog at http://calhounpowerline.wordpress.com/).
WVEC Member's Lifestyle Featured ... Don and Mary, Living Off The Grid
The Charleston Daily Mail ran an article March 24th featuring Mary Wildfire and Don Alexander's sustainable home in Roane County. Mary is a long time WVEC member, and served as our Board President. Don is our Webmaster. Both have been living a "green" lifestyle for years, and now share a home in Roane County powered by solar they built themselves. This is an exerpt from the article:
Roane Couple Create Solar-Powered Home
Octagonal House Gets Electricity from Four 220-watt Panels in Yard
By Billy Wolfe
Daily Mail staff - Wednesday March 24, 2010
Coal doesn’t keep the lights on for Mary Wildfire and Don Alexander at their octagon-shaped home near here (Spencer).
The sun does.
The Roane County back-to-the-landers are breaking free of the black mineral, believing it to be deleterious to West Virginia and the environment as a whole. And unlike a few high-profile celebrity environmentalists, Wildfire and Alexander certainly practice what they preach.
The couple’s 1,400-square-foot home sits at the end of a mile-long stretch of dirt road just outside Spencer. It has running water, a fireplace, Netflix movies, a satellite dish and laptop computers.
Four 220-watt solar panels installed in the front lawn late last year provide power. After a snowy winter during which the sun provided all the energy they needed, they’re eager to see how well the panels work on sunny summer days.
"Around Christmas, every house out here was without power for a week, except for this one," said Wildfire, 54. The couple invited neighbors with cabin fever to come over and watch movies.
"If you want to go solar, step one is to get your energy use down," she said.
She recommends that people avoid air conditioning, electric heating and big outdoor lights.
Wildfire and Alexander can power their home for about 12 hours on the same amount of energy it takes to bake a loaf of bread in a conventional oven.
To read the entire article, go to: http://www.dailymail.com/foodandliving/201003230903
Marcellus Shale "Water Bill" Dies on Final Night
By Donald S. Garvin, Jr.
WVEC Legislative Coordinator
HB 4513, "establishing requirements for Marcellus gas well operations’ use of water resources," died in a conference committee on the final night of the session.
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Don Garvin and Delegate Tim Manchin react during the Marcellus Shale bill discussion. Senate Natural Resources Committee. March 8, 2010 |
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If it had passed, the bill would have set additional reporting requirements for water withdrawals from streams, the contents of water used for high-volume "slick water" hydraulic fracturing, and where the waste water was to be disposed.
The bill would also have required drillers to have plans for handling water withdrawals and waste disposal prior to getting the permit to drill. One of those plans would have covered maintaining minimum instream flows when withdrawing water.
HB 4513 passed out of House Judiciary Committee by voice vote, and was later passed by the full House by a vote of 89 to 8.
The Senate referred the bill to two committees: first to Natural Resources, and then to Energy, Industry and Mining (EIM). Senate Natural Resources Chairman John Pat Fanning took the bill up in committee almost immediately, and he allowed a full hour for the public to make presentations to the committee. The committee then passed the bill by a unanimous voice vote.
But that second reference to EIM was the kiss of death.
Before we go any further, we need to tell you about another oil and gas bill – SB 369, the "deep well/shallow well" bill. SB 369 would have changed the definition of a "shallow well" so that it applies to many vertical Marcellus Shale wells. Industry REALLY wanted this bill. But it’s a terrible bill that would have essentially legalized stealing of gas from neighboring mineral owners, and been worse for the environment by eliminating the need for well spacing (meaning more wells drilled and more land disturbed).
So keeping all this in mind, here’s how things played out during that final week, as described by WV CAG lobbyist Julie Archer in this week’s Capitol Eye:
"The House Judiciary Committee essentially held SB 369 hostage in order to encourage the Senate Energy, Industry and Mining (EIM) Committee to act on HB 4513. However, in an unfortunate turn of events, EIM amended the provisions of SB 369 into HB 4513. In addition, the committee also weakened important protections for our water resources, specifically a requirement that operators have a plan to maintain minimum instream flows. What started out as a good bill aimed at protecting our water resources, turned into something that neither WV-SORO nor the WV Environmental Council could support.
The bill ended up in a conference committee on the last night of the session. Delegate Tim Manchin (D-Marion), lead sponsor of HB 4513, tried convince the Senate conferees to agree to restore critical language needed to protect our waters. When it became clear no compromise could be reached, HB 4513 died, killing SB 369 along with it."
So that’s that. But not quite.
The process of attempting to pass this bill in the Legislature has pushed DEP to actually do more for protecting water from oil and gas operations. And as a result, much of what we proposed in the bill is actually now being done by the Office of Oil and Gas in the permit process. So all is not lost.
Finally, I want to mention that this bill would never have been proposed in the first place were it not for Delegate Tim Manchin (D-Marion), the House Chairman of the Legislative Oversight Commission on State Water Resources.
It was Delegate Manchin who had the bill drafted after a year’s worth of presentations on Marcellus drilling issues. It was Delegate Manchin who became the lead sponsor of the bill. It was Delegate Manchin who orchestrated the advancement of the bill. And it was Delegate Manchin who stood behind the principles of the bill to the bitter end.
I have never seen a legislator "work a bill" so hard. You wore me out, Tim!
Comment Period on Net Metering Ends April 4th
By John Christensen,
WVEC lobbyist
One of my biggest disappointments in this second session of the 79th Legislature was the failure for HB 4391 to advance in the House. The bill was single-referenced to House Judiciary, but it never made it to the committee’s agenda.
The bill’s lead sponsor was Del. Mike Manypenny (D-Taylor), and it would have provided an important incentive for consumer investment in renewable energy generation.
It would have allowed customers to generate more of their own electricity with small renewable systems to offset their consumption over a billing period by allowing their electric meters to turn backwards when they generate electricity in excess of the their demand. What a great idea to have a low-cost, easily administered method of encouraging citizen investment in renewable energy technologies right here in West Virginia.
The good news is that we still have an opportunity to change PSC net metering standards, but we have to act fast.
The WV Public Service Commission has proposed new Net Metering Rules, which include eligibility, technical, interconnection, metering, tariff filing and reporting requirements relating to net metering.The proposed rules are contained in PSC General Order No. 258, and can be found on the Internet here.
Any interested person or corporation may file specific written comments on the proposed amended rules by April 4, 2010, by 4:00 p.m., to Sandra Squire, Executive Secretary, Public Service Commission of West Virginia, Post Office Box 812, Charleston, West Virginia 25323. Replies to comments may be filed no later than May 5, 2010 by 4:00 pm.
Any party seeking a hearing on the proposed rules shall make a specific written request by March 30,2010 and explicitly state the grounds upon which the request for a hearing is made.
One positive change in the proposed PSC rule is that the electric utilities pick up the tab for new net metering devices, a savings of $200.00 consumers generating their own electricity. However, in my opinion, much of the proposed rule is less than desirable, and benefits the large utilities rather than the residential generator.
Currently, net metering is offered in more than 35 states, including WV. However, other states are doing much more to facilitate the growth of residential renewable energy production. To get more information on better rules in other states, simply Google the Interstate Renewable Energy Council, which is funded by the US DOE and managed by the North Carolina Solar Center.
So get your comments in on the proposed PSC rule. Meanwhile, we will work to get the Legislature to adopt more friendly net metering provisions next session.
Oil and Gas Rule Passes on Last Day
After what can only be described as a rough start, DEP’s Oil and Gas Well Drilling Rule was passed by both chambers on the last day of the session. It took some butting of heads and a couple of conference committees, but the rule as finally adopted begins to address drilling for Marcellus Shale natural gas in some positive ways.
The rule provides construction standards for large volume pits and impoundments. Amendments adopted make it highly unlikely that drillers will not use impermeable synthetic pit liners. And amendments were accepted that require notice and opportunity for a hearing for the surface owner, should a driller opt to use just a clay liner.
While we would have liked to see other protective measures included in the rule, this is a good first step at protecting the state’s water resources from Marcellus Shale drilling operations.
2009 Energy Code Removed from Building Code Rule
Last year the Legislature passed a bill requiring the State Fire Commission to update the energy efficiency provisions of the State Building Code. This year the Legislature gutted the 2009 IECC energy code provisions from the rule proposed by the State Fire Marshall.
West Virginia currently is as much as six years behind in updating to the National Code. We lobbied hard to restore the energy efficiency code to this rule, along side the Governor’s staff. The WV Homebuilders Association lobbied hard to keep the updated energy code out of the rule. We lost.
This prompted one of the stakeholders to comment that "West Virginia’s building code amounts to the worst possible building you can build under the code."
Lawyers, Guns and Money
By Leslee McCarty,
WVEC Lobbyist
It is the week after my two months at the Legislature and yes, I am depressed. I can easily understand why a couple of prominent figures on the legislative merry-go-round got arrested for drunk driving! I think they were maybe looking for clarity in a mixed up crazy legislative world – or at least a little relief!
So maybe I see irony in everything, but can you tell me why Senate Finance Chair Walt Helmick (D-Pocahontas) doesn’t see that it is a little bit funny to give a sales tax holiday on guns that might lose us $3 million and, in the same meeting, orchestrate a move to strip funds from a bill to publicly finance Supreme Court elections, saying we could not afford it?
And how about those House Judiciary members who sided with the WV Homebuilders Association to exempt them from 2009 energy code compliance on new homes, even though the Governor’s office assured them that it would mean losing future federal stimulus funds for state energy efficiency programs?
And, of course, the most bitter pill we had to swallow was our defeat at the hands of Chairman Mike Green (D-Raleigh) of the Senate Energy Industry and Mining Committee ("EIM" or "Evil Industry Minions", as one of our friends puts it). Green and his committee added industry’s SB 369 ("deep well/shallow well" bill) into our good Marcellus water bill (HB 4513), making it too bitter. And although we offered amendments to last minute conferees, Green remained intransigent, so the whole thing went down to defeat, and we lost the protections provided in our bill..
There were a few heroes we worked with this session: Delegates Tim Manchin (D-Marion), Bonnie Brown (D-Kanawha), Barbara Fleischauer (D-Monongalia), Mike Manypenny (D-Taylor), Sen. Randy White (D-Webster), among numerous others. But really, folks, it was bad.
It is an election year, and I hope we will have some positive changes in Charleston next year. Oil and Gas interests will no doubt join Coal to try and replace reasonable people with toadies, so please make sure you find good candidates and work to get them elected.
Meantime, for the next week or so, as my favorite radio cartoon super hero, Chicken Man, used to say, "If the world needs me, Miss Hellfinger, I’ll be in the broom closet."
I just need a little break. Maybe Costa Rica? At least they are a former banana republic that recognizes their past and moves forward, rather than a state with a proud heritage that is moving closer and closer to being a banana republic.
Ethics Bill Dies in Senate
HB 4016 would have toughened financial disclosure requirements for public officials and their spouses, and would have banned certain officials, including legislators and employees of the legislative and executive branches, from lobbying for at least a year after leaving their public post.
The bill passed the House unanimously a week after the session began. The Senate referred the bill to Senate Finance Committee, where Chairman Walt Helmick (D-Pocahontas) never put the bill on the agenda.
The bill contained an amendment which was dubbed the "Puccio Amendment," coming just one week after former Manchin chief of staff Larry Puccio registered as a lobbyist for Consol Coal and other entities.
Just this week we learned that outgoing state Tax Commissioner Christopher Morris, whose departure from state government was announced last week, will become West Virginia American Water’s top lobbyist. And there’s a rumor that another Manchin legislative aide will soon become a coal industry lobbyist.
The "revolving door" is alive and thriving at the Statehouse.
MIC Bill Fails to Advance
HB 4654, a bill that would have limited the on-site storage of the deadly chemical methyl isocyanate to no more than five thousand pounds at any facility in West Virginia, was introduced so late in the session that it failed to make it on to the House Health and Human Resources Committee’s agenda.
The bill was sponsored by Delegates Brown, Guthrie, Hatfield, Hunt, Poore, Skaff, Spencer, Wells, Armstead, Lane and Walters – almost all of the Kanawha Valley legislative delegation, both Democrats and Republicans.
Methyl isocyanate is the same chemical that killed thousands of people in Bhopal, India in 1984.
Victory! Supreme Court Public Financing Pilot Project Signed by Governor
On Thursday the Governor signed HB 4130, the Supreme Court Public Financing Pilot Project Act!
The bill provides alternative campaign financing options for candidates for the West Virginia Supreme Court of Appeals beginning in 2012 through funds from the Treasurer’s Unclaimed Property Trust Fund. Candidates participating in the Pilot Project would be required to raise a certain amount of campaign funds to qualify for the program and receive public funds. Candidates accepting public funds are thereafter prohibited from raising or spending money from private sources.
Although the Senate Finance Committee adopted an amendment that removed more than half of the other funding provided for the program, WV Citizens for Clean Elections coalition partners agreed to continue to push for passage of the bill and then try to work to get more funding later.
Special thanks go to Senator Jeff Kessler (D-Marshall), who has been a major proponent of public financing for many years, and Delegate Tim Manchin (D-Marion), who championed the legislation in the House.
WVEC thanks goes also to Carol Warren and Julie Archer, whose tireless lobbying made this bill happen.
SB 518 Gutted, Then Passed
SB 518 as originally introduced would have created the "Governor’s Commission to Seize the Future of Energy for America" (we dubbed it the Commission to Seize the Past).
However, after the House Finance Committee finished with this bill, there’s no commission at all! The bill simply gives the state’s Division of Energy some additional responsibilities relating to promoting "clean coal," something the agency already does whenever it gets the chance.
The one good thing in the bill is that it requires the Legislative Auditor’s office to perform an agency review of the Division of Energy in 2010 as part of its review of the Department of Commerce.
That could prove interesting.
Two Bad Bills Pass on Last Night
Two terrible bills involving the DEP – SB 496 and HB 4277 – went down to the wire this session, but were both passed on the last night.
SB 496 allows the DEP Advisory Council to "submit recommendations for rulemaking to the Secretary" — "upon approval by majority vote," This is a totally inappropriate role for this body, and can only result in adversarial confrontations within the Council. The bill also adds a member to the Advisory Council, without adding an additional member from the environmental community; this is in direct conflict with the language that remains in the statute that says, "In making subsequent appointments this balance of membership shall be maintained."
HB 4277 gives the DEP Secretary the authority to sign National Pollutant Discharge Elimination System (NPDES) water pollution permits. It removes protective language contained in the WV Water Pollution Control Act that requires that NPDES permits be issued and signed by the Chief of DEP’s Office of Water and Waste Management – the "expert agency." The Secretary of DEP is a political appointee and not an expert in water quality protection. This bill only further politicizes an agency that is already too political.
WVEC has successfully opposed similar legislation the past three or four years. This time it appears we have lost. Both bills await the Governor’s signature.
"Green Buildings Act" Fails to Advance
After making it through the House Government Organization Committee in a "neutered" condition, WVEC’s "Green Buildings Act" (HB 4008) failed to make it on to the House Finance Committee agenda. So it’s dead for another year.
As originally drafted, the bill would have required that new state buildings be built to the LEED silver certification or equivalent "Green Globes Initiative" building rating standard. This language was a compromise that had been worked out between all of the stakeholders over the last two years.
We’ll try again next year.
In the News . . .
Breaking News!
EPA Recommends Veto Of Spruce Mine Permit
The U.S. EPA announced Friday that it is recommending the veto of a water quality permit for West Virginia’s largest mountaintop-removal mine, Arch Coal’s Spruce No. 1 mine in Logan County.
EPA’s announcement said the project would pollute drinking water and harm wildlife in mountain streams, and that the damage to the mountains would be irreversible.
EPA’s action continues a formal process — including a public comment and hearing — that could lead to a veto of the mine’s Clean Water Act permit, but also could take a year or more to be resolved.
EPA Cites Dupont for Deadly Phosgene Leak
The U.S. Environmental Protection Agency recently announced that it has cited DuPont Co. and ordered the company’s Belle, W.Va., chemical plant to take a variety of actions as a result of January’s phosgene leak that killed a plant worker.
The order results from an EPA inspection of the facility following three releases in January, including the release that caused the death.
Based on EPA’s inspection and available information about the operation of the facility, EPA has determined that the facility has not satisfied Clean Air Act requirements that are designed to help prevent accidental releases and minimize the consequences of releases that do occur.
Massey Pledges $1 Million for New Marsh Fork School
Raleigh County Schools Superintendent Charlotte Hutchens, asked the state School Building Authority this week for $6.6 million to build a new school to replace Marsh Fork Elementary.
The school sits 300 feet from a Massey Energy coal processing plant and down the hollow from a huge coal-slurry impoundment.
In a letter dated March 18, Massey Energy Chairman and CEO Don Blankenship wrote to Raleigh County school board president Rick Snuffer, pledging $1 million from Massey Energy toward a new school.
Coal River Mountain Watch, an environmental organization that fights mountaintop removal mining, also plans to pledge more than $10,400 for the school (monies raised in the "Pennies for Promise" campaign).
EPA to Study Effects of Fracking
The U.S. Environmental Protection Agency is taking a closer look at a technique used to drill for natural gas in Marcellus Shale. The EPA announced it will study the impact hydraulic fracturing has on human health and the environment, in particular the effect it has on ground and surface water. Hydraulic fracturing is a technique used to release natural gas and oil from geological formations.
In Marcellus Shale gas drilling, more than a million gallons of water is forced down into wells and the water pressure fractures shale allowing natural gas to escape. The water that returns to the surface is full of salt, chemicals and metals. Treatment and disposal options for the water are limited and most of the water used in the process doesn’t return to the surface. West Virginia regulators have issued nearly a thousand Marcellus gas well permits in the past three years.
The EPA is in the very early stages of designing what will be a peer-review study, but it intends to incorporate input from federal and state agencies, oil and gas companies, environmental groups and the general public.
The EPA is re-directing $1.9 million from its 2010 budget for the study and will request additional money for the study in the 2011 budget.
Court to Hear Chief Logan Drilling Appeal
The WV Supreme Court has agreed to hear an appeal of a lower court ruling regarding new natural gas drilling proposed for Chief Logan State Park. Manchin administration officials and environmental groups filed the appeal, seeking to overturn Logan Circuit Judge Roger Perry’s decision last year in favor of Cabot Oil & Gas. Justices voted 5-0 to hear the case. No date was immediately set for oral arguments, but the case would likely not be heard until the fall.
EPA Reports Streams Near Mining Toxic
Water quality downstream from surface coal-mining operations in West Virginia and Kentucky greatly exceeds recommended toxicity limits, according to recently released sampling data from the U.S. Environmental Protection Agency. EPA scientists found toxicity levels as high as 50 times the federal guidelines in water downstream from mining operations. In-stream water samples from 14 of 17 sites EPA tested exceeded the agency’s guidelines.
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