Congressman David McKinley is attempting to get a bill through Congress that will prohibit EPA from classifying coal combustion residuals as hazardous waste under the Solid Waste Disposal Act and allows states to promulgate regulatory programs to address coal combustion residual placement, management and reuse.  His Morgantown office was the subject of a protest by the Sierra Club earlier this week for this effort.  Send Congressman McKinley a thank you and, if you have contacts in other States, encourage their support of Congressmen McKinley’s efforts.

On Wednesday, June 29^th, MSHA will hold a public briefing on its investigation into the explosion at the Upper Big Branch Mine in Raleigh County, W.Va. The briefing, to begin at 10 a.m. EDT, will coincide with the one-year anniversary of the start of the agency's underground investigation at the Upper Big Branch Mine and will be held at the National Mine Health and Safety Academy in Beaver, W.Va. A Q-and-A session for the public will take place at the conclusion of the briefing and end by 12:45 p.m.

The U.S. Department of Labor's Mine Safety and Health Administration announced that the final rule on Rock Dust was published June 21 in the Federal Register on the maintenance of the incombustible content of rock dust.

The rulemaking can be viewed at

http://www.cdc.gov/niosh/mining/pubs/pubreference/outputid2825.htm.

http://www.msha.gov/MEDIA/PRESS/2011/NR110620.asp

Governor Earl Ray Tomblin has appointed Anna Border to fulfill the remainder of her late husband’s term in office as the West Virginia House of Delegates representative for the ninth district, effective immediately.

“Anna has been her late husband’s personal confidant and partner during their 38 year marriage as well as his professional legislative assistant,” Tomblin said. “I am confident she will represent the people of Wirt and Wood counties with the same commitment her husband displayed throughout his twenty-one years of service.

Delegate Larry Border was first elected to the West Virginia House of Delegates in 1990 to represent the citizens of Wood and Wirt counties. The West Virginia 9^th District Republican Delegate Committee submitted Mrs. Border’s name along with two others as candidates to fulfill the unexpired term. Mrs. Border is a graduate of West Virginia University with a degree in elementary education. The long-time educator travels the state bringing science lessons to elementary children as a teacher with the West Virginia Farm Bureau’s Mobile Science Lab.

Anna and her late husband have three children; Heather Border Mullens, Rebecca Border Dimit and Christopher Border.

The U. S. Supreme Court, in an 8-0 decision, reversed a lower court’s ruling permitting states and environmental groups to bring common law nuisance actions against utilities due to their greenhouse gas (GHG) emissions. American Electric Power Co. v. Connecticut, No. 10-174, June 20, 2011.

In an opinion authored by Justice Ginsburg, the court held that Clean Air Act’s (CAA) delegation of authority to the Environmental Protection Agency (EPA) to regulate GHGs from utilities under section 111 effectively displaced the federal common law cause of action. NMA participated in the litigation as amicus curiae in support of the utilities.

On the issue of displacement, the court found that “[t]he critical point is that Congress delegated to EPA the decision whether and how to regulate carbon-dioxide emissions from power plants; the delegation is what displaces federal common law. Indeed, were EPA to decline to regulate carbon-dioxide emissions altogether at the conclusion of its ongoing § 7411 rulemaking, the federal courts would have no warrant to employ the federal common law of nuisance to upset the agency’s expert determination.” The court expressly declined to decide whether, even assuming no regulation under the CAA and therefore no displacement, a federal common law nuisance action actually exists against utilities due to their GHG emissions. Similarly, the court declined to answer this question for common law nuisance claims brought in state courts.

The important remaining issue is to what extent future congressional legislation divesting EPA’s authority under section 111 to regulate GHGs from utilities would impact the decision. More than likely, such congressional action would bar displacement as an effective defense and a judicial determination would have to be made whether a federal common law cause of action is viable. Currently, the EPA is scheduled by consent decree to propose GHG standards of performance for new and existing coal-fired utilities by Sept. 30, 2011.