USEPA initiated enforcement litigation against several companies that allegedly discharged polychlorinated biphenyls ("PCBs") into certain waterbodies. To prepare for this CERCLA litigation, the government hired an environmental consultant to make a report estimating the amounts of PCBs allegedly discharged into the water by each of the companies.
One of the companies sought discovery of the report by challenging a consent decree between the government and one of the other companies. When such discovery was denied, the company filed a Freedom of Information Act ("FOIA") request with the government for the report. When the government refused the request, asserting that the report was privileged as "attorney work product", the company sued in federal court.
On December 26, 2012, the US Circuit Court of Appeals, 7th Circuit, affirmed the District Court decision upholding denial of the FOIA request. (Appleton Papers, Inc. v. Environmental Protection Agency, et al, NO. 12-2273)
The Court of Appeals acknowledged that FOIA generally requires federal agencies to disclose records to the public. However, FOIA provides certain exemptions from this requirement. One of these exemptions, the Court stated, is for attorney work product: the exemption prevents a party from discovering material prepared in anticipation of litigation or for trial. (See Federal Rules of Civil Procedure 26(b)(3)(A)). While a party in litigation generally can discover information relevant to a claim or defense, exception is made for attorney work product, and that exemption also applies to FOIA, the COurt held.
In ordinary civil federal civil litigation, the work product privilege sometimes can be overcome by a showing of need for the information or if the author of the information plans to testify. But,in the case of FOIA requests, such specific exceptions to the exemption would be hypothetical and, therefore, do not apply.
This decision suggests a couple of additional points: first, although it involves the federal FOIA, most states have FOIA laws of their own; therefore, this case may provide some guidance in state enforcement matters. Second, the decision illustrates potential procedural issues facing an environmental defendant in attempting to learn what information the federal or state EPA may have against it.
Fresh water is essential for life and commerce. However, its scarcity is resulting in increased regulation of water resources and their corollary, wastewater. This blog will discuss developments in such regulation. It will be my clepsydra measured by the flow of water law.
Monday, December 31, 2012
Friday, December 21, 2012
BELIEVING IN SANTA
As a young child, age 5 or 6, I was conflicted about Santa Claus. Shortly before one Christmas, my parents took me to the magical kingdom (in my eyes) of the Sears, Roebuck & Co. headquarters store on Homan Ave. in Chicago. It was a massive complex, stretching for blocks and soaring several stories high, complete with a tower.
The toy department seemed never ending. But at one end, there was Santa on his throne, with a long line of hyper kids waiting to sit on his knee and whisper their wants. As my parents pushed me toward the line, I resisted and began to cry. I refused to join! I was afraid of Santa! He frightened me! I tried to run and hide behind a nearby display. My parents gave up embarrassed, and Santa did not get my wants.
On Christmas morning, I sneaked down the stairs. I immediately saw that overnight Santa had been to the house! There was a fully decorated tree, circled by Lionel trains, and surrounded by brightly wrapped gifts. Surely, Santa knew exactly what would please me and was very generous, even though I had refused to talk to him.
So, what to believe? Santa in person sitting before me or circumstantial evidence of Santa--no body but surely he had visited and brought gifts. As a "grown-up, I have come to reinforce my belief in Santa Claus--not as a visible person in the flesh such as the Sears Santa, but belief in the Santa that lives within each of us, a Santa that unselfishly gives gifts of friendship, hospitality, love and and generosity.
I hope that this Christmas, and through out the new year, you are able to reinforce your belief in Santa and let your Santa within come out to visit others.
Merry Christmas to all...
The toy department seemed never ending. But at one end, there was Santa on his throne, with a long line of hyper kids waiting to sit on his knee and whisper their wants. As my parents pushed me toward the line, I resisted and began to cry. I refused to join! I was afraid of Santa! He frightened me! I tried to run and hide behind a nearby display. My parents gave up embarrassed, and Santa did not get my wants.
On Christmas morning, I sneaked down the stairs. I immediately saw that overnight Santa had been to the house! There was a fully decorated tree, circled by Lionel trains, and surrounded by brightly wrapped gifts. Surely, Santa knew exactly what would please me and was very generous, even though I had refused to talk to him.
So, what to believe? Santa in person sitting before me or circumstantial evidence of Santa--no body but surely he had visited and brought gifts. As a "grown-up, I have come to reinforce my belief in Santa Claus--not as a visible person in the flesh such as the Sears Santa, but belief in the Santa that lives within each of us, a Santa that unselfishly gives gifts of friendship, hospitality, love and and generosity.
I hope that this Christmas, and through out the new year, you are able to reinforce your belief in Santa and let your Santa within come out to visit others.
Merry Christmas to all...
Thursday, December 13, 2012
MAKING BUBBLES ON THE WATER
A water utility hired a man as the distribution superintendent of its drinking water treatment plant. The utility agreed to rent to the employee a house owned by the utility located on a portion of the treatment plant site. The house apparently was not separated from the plant by fencing. Visitors to the house had to enter the plant site through the single gated entry, which was monitored by a plant operator and security cameras.
During a family gathering at the house, hosted by the employee, one of the guests was bitten by a dog that another guest had brought. The injured guest sued both the utility and the employee. On appeal, the court affirmed the trial court's ruling that the utility was not liable. The court reasoned that the utility did not own or have control over the dog, and did not have control over the residence. (Howle v. Aqua Illinois, Inc., 2012 IL.App(4th)120207)
This October, 2012 court decision got me thinking that I have not seen much recent discussion about security in the water and waste water utility industry. The events of 9-11 caused water utilities to rush into place various security measures, ranging from armed guards to electronic monitoring and fencing. Then utilities were required to prepare and submit vulnerability assessments of their facilities. Subsequently, utilities became aware that many of enacted and proposed security measures came with high capital or operating costs, not easily recoverable in rates.
Recently, a television documentary featured the life story of a man who as a young boy loved to go fishing with friends at a rural river. His pals would catch loads of fish. But, he never caught any. All he did, he said, was to make bubbles on the water with his line.
I wonder whether, and to what extent, water utility security measures really are effective or are utilities merely making bubbles on the water with their efforts. Even where fences, gates, locks, cameras and monitors have been installed, are all vulnerabilities realistically addressed? Even when access to facilities is screened, nevertheless such access can create security risks by reason of information about a facility that a visitor receives, whether visual or in the form of documents.
By analogy to the Illinois decision discussed above, a utility could enhance its security with old fashion "junk yard dogs." If such dogs were to bite an invited visitor, a court likely would reach a different conclusion. However, if a utility relied primarily on dogs for security, the person bitten might wind up to be the utility itself, who had only made bubbles on the water.
During a family gathering at the house, hosted by the employee, one of the guests was bitten by a dog that another guest had brought. The injured guest sued both the utility and the employee. On appeal, the court affirmed the trial court's ruling that the utility was not liable. The court reasoned that the utility did not own or have control over the dog, and did not have control over the residence. (Howle v. Aqua Illinois, Inc., 2012 IL.App(4th)120207)
This October, 2012 court decision got me thinking that I have not seen much recent discussion about security in the water and waste water utility industry. The events of 9-11 caused water utilities to rush into place various security measures, ranging from armed guards to electronic monitoring and fencing. Then utilities were required to prepare and submit vulnerability assessments of their facilities. Subsequently, utilities became aware that many of enacted and proposed security measures came with high capital or operating costs, not easily recoverable in rates.
Recently, a television documentary featured the life story of a man who as a young boy loved to go fishing with friends at a rural river. His pals would catch loads of fish. But, he never caught any. All he did, he said, was to make bubbles on the water with his line.
I wonder whether, and to what extent, water utility security measures really are effective or are utilities merely making bubbles on the water with their efforts. Even where fences, gates, locks, cameras and monitors have been installed, are all vulnerabilities realistically addressed? Even when access to facilities is screened, nevertheless such access can create security risks by reason of information about a facility that a visitor receives, whether visual or in the form of documents.
By analogy to the Illinois decision discussed above, a utility could enhance its security with old fashion "junk yard dogs." If such dogs were to bite an invited visitor, a court likely would reach a different conclusion. However, if a utility relied primarily on dogs for security, the person bitten might wind up to be the utility itself, who had only made bubbles on the water.
Wednesday, December 5, 2012
ODE TO A FLU SHOT
The government says the flu season has arrived. We all know that the government is always correct. Nevertheless, I have resisted getting a flu shot for some time. Finally, after much pressure from the wife, and much hacking, horking and sneezing wherever I go in public, I finally acknowledged that my time had come for the annual jamming of the flabby arm. So, I journeyed to my local "emergency medical clinic" for the ritual.
Now, was I naive to assume that an emergency medical clinic implies speedy attention? Well, just the opposite. One must first sign in on a form calling for a multiple choice answer to why one bothered to come there. The choices ranged from "flu shot" to "immediate surgery", and my mind flashed back to the horrors my SAT test. My first choice was "flu shot" and I wisely resisted changing my answer.
Then one sits in the waiting room with dozens of hacking, horking and sneezing patients all waiting for relief from the flu because they waited to long to get a flu shot. After 15 minutes, but it seemed longer than a super bowl halftime, one is called forth for the ordeal of the PAPERWORK. Form after form requiring signature, waiving and releasing everything except my body fluids--I think I still have those. Then came the verbal questions, such as why are you here, why do you have insurance. are you allergic to the world, do you have or want the flu?
Back to the waiting room hacking, horking and sneezing for another 15 minutes. Finally, I was summoned to a closet where a nurse larger than life was salivating to do the deed. But first, she asked the same questions that blotted my mind at the check-in desk, and added are you allergic to chicken, do you like chicken, what about eggs, omelets, eggs benedict, etc. Then, as the needle attacked my flabby arm, she announced that I could not get the flu from the shot, but I may experience flu-like symptoms. So, what is the difference, I wondered. All in all, it took an hour to get a 10 second flu shot.
Upon reflection, I wonder if I would have been better off just drinking 8 glasses of water every day coupled with I-V chicken soup. Or, maybe all that sitting time with hacking, horking and sneezing immunized me from the flu anyway.
On the way home, I heard on my car radio that a science laboratory was asking the general public to send it their stool samples. It seems that scientists there want to accumulate an inventory of all the bacteria, good and bad, found in human intestines. What a great idea! This will reduce loading at the local sewage treatment plants. And, since my flu shot does not protect me from intestinal flu, I may have plenty to send the laboratory in the future.
Now, was I naive to assume that an emergency medical clinic implies speedy attention? Well, just the opposite. One must first sign in on a form calling for a multiple choice answer to why one bothered to come there. The choices ranged from "flu shot" to "immediate surgery", and my mind flashed back to the horrors my SAT test. My first choice was "flu shot" and I wisely resisted changing my answer.
Then one sits in the waiting room with dozens of hacking, horking and sneezing patients all waiting for relief from the flu because they waited to long to get a flu shot. After 15 minutes, but it seemed longer than a super bowl halftime, one is called forth for the ordeal of the PAPERWORK. Form after form requiring signature, waiving and releasing everything except my body fluids--I think I still have those. Then came the verbal questions, such as why are you here, why do you have insurance. are you allergic to the world, do you have or want the flu?
Back to the waiting room hacking, horking and sneezing for another 15 minutes. Finally, I was summoned to a closet where a nurse larger than life was salivating to do the deed. But first, she asked the same questions that blotted my mind at the check-in desk, and added are you allergic to chicken, do you like chicken, what about eggs, omelets, eggs benedict, etc. Then, as the needle attacked my flabby arm, she announced that I could not get the flu from the shot, but I may experience flu-like symptoms. So, what is the difference, I wondered. All in all, it took an hour to get a 10 second flu shot.
Upon reflection, I wonder if I would have been better off just drinking 8 glasses of water every day coupled with I-V chicken soup. Or, maybe all that sitting time with hacking, horking and sneezing immunized me from the flu anyway.
On the way home, I heard on my car radio that a science laboratory was asking the general public to send it their stool samples. It seems that scientists there want to accumulate an inventory of all the bacteria, good and bad, found in human intestines. What a great idea! This will reduce loading at the local sewage treatment plants. And, since my flu shot does not protect me from intestinal flu, I may have plenty to send the laboratory in the future.
Tuesday, November 27, 2012
THE POST-ELECTION FUTURE OF WATER--PART II
Two powerful forces likely will define both the near term future as well as the longer term future of water in this country. First, an increasing awareness is probable that fresh water is a very limited resource and is becoming more so due to demand and to environmental change. This acknowledgement, in turn, will drive efforts to limit water uses to protect the resource. The second powerful force may be the federal government, which under the guise of protecting water resources, can be expected to more strictly regulate water use and quality.
Here are some of the potential future trends that may develop:
1. Water Allocation. The federal government may seek to regulate the allocation of water sources of supply as between regions of the country. Such allocation could involve ground water as well as surface water river and lake sources. Allocations could be effected by use of pipelines as well as by limits on withdrawals.
2. Cap and Trade. As one feature of allocation, the government could initiate a broad cap and trade program for all water utility sources of water supply. By analogy, there already is a water quality trading program called the "Ohio River Basin Interstate Water Quality Trading Project," designed to reduce agricultural nutrient load runoff.
3. Expanded Metering. Also related to allocation and conservation of water, the future may see universal required metering of private residential and commercial wells, with penalties for exceeding permitted withdrawals. For customers of water utilities, there could be corresponding mandatory inverse rate block structures with surcharges for excess water use.
4. Limited Fracturing. It is likely that more strict regulation of hydraulic fracturing water will be imposed--not only to protect water sources but more importantly to promote political desire for alternative sources of energy and to discourage reliance on oil.
5. New Water Sources. The federal government will continue to promote, through loans, grants and guarantees, development of alternative or non-traditional sources of water supply. Beside desalination, these could include mandatory reuse of highly treated wastewater and mandatory collection and use of rain water.
6. Regulation, Regulation, Regulation. More regulation of alleged contaminants in water, and more regulation of water use, likely will be the agenda of EPA. It can be expected to be aggressive in stretching its regulatory and enforcement programs, particularly under its National Enforcement Initiative and its notion of "environmental justice." In turn, more court challenges to agency action will result.
7. Infrastructure. Everyone has been talking about the urgent need to replace aged water and wastewater plant and to upgrade facilities to maintain regulatory compliance, but the predicted cost is huge and utilities seem to be waiting for federal government financial assistance. The more utilities will wait, the higher the price tag and urgency will become.
8. Rates. So, who will pay? Customers of water utilities can expect to pay substantially higher rates in the future, due to regulatory requirements and infrastructure replacements and upgrades. In the near term, rates could be approaching $10 or more per 1,000 gallons--or, in other words, a monthly water bill will be almost as much as the cable or telephone bill!
Here are some of the potential future trends that may develop:
1. Water Allocation. The federal government may seek to regulate the allocation of water sources of supply as between regions of the country. Such allocation could involve ground water as well as surface water river and lake sources. Allocations could be effected by use of pipelines as well as by limits on withdrawals.
2. Cap and Trade. As one feature of allocation, the government could initiate a broad cap and trade program for all water utility sources of water supply. By analogy, there already is a water quality trading program called the "Ohio River Basin Interstate Water Quality Trading Project," designed to reduce agricultural nutrient load runoff.
3. Expanded Metering. Also related to allocation and conservation of water, the future may see universal required metering of private residential and commercial wells, with penalties for exceeding permitted withdrawals. For customers of water utilities, there could be corresponding mandatory inverse rate block structures with surcharges for excess water use.
4. Limited Fracturing. It is likely that more strict regulation of hydraulic fracturing water will be imposed--not only to protect water sources but more importantly to promote political desire for alternative sources of energy and to discourage reliance on oil.
5. New Water Sources. The federal government will continue to promote, through loans, grants and guarantees, development of alternative or non-traditional sources of water supply. Beside desalination, these could include mandatory reuse of highly treated wastewater and mandatory collection and use of rain water.
6. Regulation, Regulation, Regulation. More regulation of alleged contaminants in water, and more regulation of water use, likely will be the agenda of EPA. It can be expected to be aggressive in stretching its regulatory and enforcement programs, particularly under its National Enforcement Initiative and its notion of "environmental justice." In turn, more court challenges to agency action will result.
7. Infrastructure. Everyone has been talking about the urgent need to replace aged water and wastewater plant and to upgrade facilities to maintain regulatory compliance, but the predicted cost is huge and utilities seem to be waiting for federal government financial assistance. The more utilities will wait, the higher the price tag and urgency will become.
8. Rates. So, who will pay? Customers of water utilities can expect to pay substantially higher rates in the future, due to regulatory requirements and infrastructure replacements and upgrades. In the near term, rates could be approaching $10 or more per 1,000 gallons--or, in other words, a monthly water bill will be almost as much as the cable or telephone bill!
Monday, November 19, 2012
THE POST-ELECTION FUTURE OF WATER - PART I
It is no secret, nor surprise, that we have just experienced a very contentious and close election. Indeed, the actual vote totals in the presidential race were sufficiently close to deny a mandate for one party or the other. Rather, the actual mandate is for all parties to come together to address and resolve serious issues confronting the country, including those pertaining to water.
As John Wesley wrote in his journal in 1774 about an election to be held in England: "I met those of our society who had votes in the ensuing election and advised them: 1. To vote, without fee or reward, for the person they judged most worthy; 2. To speak no evil of the person they voted against; And 3. To take care that their spirits were not sharpened against those that voted on the other side."
What are some of the concerns and issues for water that likely will beg for attention from the federal and state governments now that the election has become history? I think that they could include the following:
1. Will USEPA continue to promulgate more and more regulations for monitoring and removing constituents in water and wastewater? Or will Congress react to mitigate the rising costs for utilities to comply with such regulations, and the resulting rising rates charged users?
2. Will USEPA aggressively use its perceived enforcement powers or will Congress and the courts seek to restrain such powers?
3. How will utilities address so-called climate changes which are believed to reduce sources of water supply and to increase competition for supplies across regional boundaries?
4. How will utilities construct and pay for new water and wastewater infrastructure needed to replace facilities beyond their useful lives and to meet demand created by an eventual resurgence in the housing and manufacturing industries?
5. Will the federal government, already deeply in debt by trillions of dollars, continue to fund grants and loans to states and cities for water and wastewater capital improvements, and if so, from where will the federal government get the money?
6. How high will rates for water and wastewater services have go to meet regulatory compliance costs, increased operating costs and infrastructure capital costs?
Stay tuned!
As John Wesley wrote in his journal in 1774 about an election to be held in England: "I met those of our society who had votes in the ensuing election and advised them: 1. To vote, without fee or reward, for the person they judged most worthy; 2. To speak no evil of the person they voted against; And 3. To take care that their spirits were not sharpened against those that voted on the other side."
What are some of the concerns and issues for water that likely will beg for attention from the federal and state governments now that the election has become history? I think that they could include the following:
1. Will USEPA continue to promulgate more and more regulations for monitoring and removing constituents in water and wastewater? Or will Congress react to mitigate the rising costs for utilities to comply with such regulations, and the resulting rising rates charged users?
2. Will USEPA aggressively use its perceived enforcement powers or will Congress and the courts seek to restrain such powers?
3. How will utilities address so-called climate changes which are believed to reduce sources of water supply and to increase competition for supplies across regional boundaries?
4. How will utilities construct and pay for new water and wastewater infrastructure needed to replace facilities beyond their useful lives and to meet demand created by an eventual resurgence in the housing and manufacturing industries?
5. Will the federal government, already deeply in debt by trillions of dollars, continue to fund grants and loans to states and cities for water and wastewater capital improvements, and if so, from where will the federal government get the money?
6. How high will rates for water and wastewater services have go to meet regulatory compliance costs, increased operating costs and infrastructure capital costs?
Stay tuned!
Tuesday, November 6, 2012
GOING WITH THE FLOW
Recently, a Wall Street Journal editorial criticized the U.S.EPA policy dealing with overflows from wastewater treatment plants. ("The Obama Storm Tax", October 23, 2012, p. A16)
In wet weather conditions, some wastewater treatment facilities frequently may become burdened with excess influent water flows from tributary sewer mains. Such excess flows can arise either because the sewage collection system is a combined system--designed to receive both sanitary and storm water--or because the sanitary system is subject to inflow and infiltration in rain periods.
Under such excess flow conditions, wastewater treatment plants may be forced to bypass some of the influent to a receiving stream in order to protect the integrity of the treatment biological process for the design influent flow.
Not all bypasses, however, are due to heavy rain events. For example, the Record/Herald News (northjersey.com) reported that hurricane Sandy allegedly disabled one of the nation's largest wastewater treatment plants, forcing it to release about 300 million gallons of untreated sewage into Newark Bay. This action resulted from the wide power outage and the fact that standby generators could only power the outflow. It also was reported that other plants had to take similar action.
The Journal editorial was critical of EPA Clean Water Act enforcement measures against municipal wastewater facilities which bypass excess flows. The editorial alleged that cities are forced to enter into consent decrees with EPA to upgrade their plants, which cost local taxpayers billions of dollars. Further, such systems are subject to limits on the number of permitted bypasses. The editorial complained that such upgrades actually may not be cost effective.
The editorial may have overlooked some factors involved with bypasses. First, EPA can be both the hand that feeds as well as the hand that slaps. While enforcement actions may impose upgrade costs on utilities, EPA also spends untold millions of dollars in grants and low interest loans to cities and states for upgrades of infrastructure. This money comes from taxpayers nationwide, who in effect subsidize upgrades for the beneficiaries.
Second, not all bypasses necessarily are harmful to a receiving waterbody. Traditionally, a bypassed flow may be required to receive at least primary treatment-upwards of 85%- and chlorination. One would expect EPA to consider this to be an appropriate mitigation factor given the benefit of saving the overall treatment plant function.
Third, perhaps the real issue with the excess flow issue is not plant capacity but the cause of the excess flows in the first place. If the collection system is a combined system , them maybe a more cost-effective solution is to separate the sanitary from the storm systems, at least partially. If a collection system is sanitary only, the issue may become inflow and infiltration. Inflow results from illegal connections of downspouts, sump pumps, footing drains and the like to the sanitary system and from leaking manhole covers. Infiltration can result from broken mains and manholes. Reducing excess flows from inflow and infiltration not only can reduce the necessity for treatment plant bypasses, but also may reduce sewer surcharges and resulting backups into homes.
In wet weather conditions, some wastewater treatment facilities frequently may become burdened with excess influent water flows from tributary sewer mains. Such excess flows can arise either because the sewage collection system is a combined system--designed to receive both sanitary and storm water--or because the sanitary system is subject to inflow and infiltration in rain periods.
Under such excess flow conditions, wastewater treatment plants may be forced to bypass some of the influent to a receiving stream in order to protect the integrity of the treatment biological process for the design influent flow.
Not all bypasses, however, are due to heavy rain events. For example, the Record/Herald News (northjersey.com) reported that hurricane Sandy allegedly disabled one of the nation's largest wastewater treatment plants, forcing it to release about 300 million gallons of untreated sewage into Newark Bay. This action resulted from the wide power outage and the fact that standby generators could only power the outflow. It also was reported that other plants had to take similar action.
The Journal editorial was critical of EPA Clean Water Act enforcement measures against municipal wastewater facilities which bypass excess flows. The editorial alleged that cities are forced to enter into consent decrees with EPA to upgrade their plants, which cost local taxpayers billions of dollars. Further, such systems are subject to limits on the number of permitted bypasses. The editorial complained that such upgrades actually may not be cost effective.
The editorial may have overlooked some factors involved with bypasses. First, EPA can be both the hand that feeds as well as the hand that slaps. While enforcement actions may impose upgrade costs on utilities, EPA also spends untold millions of dollars in grants and low interest loans to cities and states for upgrades of infrastructure. This money comes from taxpayers nationwide, who in effect subsidize upgrades for the beneficiaries.
Second, not all bypasses necessarily are harmful to a receiving waterbody. Traditionally, a bypassed flow may be required to receive at least primary treatment-upwards of 85%- and chlorination. One would expect EPA to consider this to be an appropriate mitigation factor given the benefit of saving the overall treatment plant function.
Third, perhaps the real issue with the excess flow issue is not plant capacity but the cause of the excess flows in the first place. If the collection system is a combined system , them maybe a more cost-effective solution is to separate the sanitary from the storm systems, at least partially. If a collection system is sanitary only, the issue may become inflow and infiltration. Inflow results from illegal connections of downspouts, sump pumps, footing drains and the like to the sanitary system and from leaking manhole covers. Infiltration can result from broken mains and manholes. Reducing excess flows from inflow and infiltration not only can reduce the necessity for treatment plant bypasses, but also may reduce sewer surcharges and resulting backups into homes.
Saturday, October 27, 2012
HALLOWEEN JURISPRUDENCE
I detour briefly from water and waste water to acknowledge Halloween with an interesting court decision.
A Florida court addressed the issue whether a grade school Halloween celebration violated the establishment clause of the U.S. Constitution. The First Amendment states stat no law shall be made respecting establishment of religion.
A parent objected to decorations in the public elementary school depicting witches, cauldrons and brooms and objected to teachers dressed as witches in long, black dresses and pointed hats. The parent alleged that witchcraft is a religion, Halloween is a religious holiday and witches in long, black dresses, cauldrons and brooms are religious symbols for some people. The parent sued to enjoin schools from including such decorations and costumes in Halloween celebrations.
According to the court, the school board presented evidence that "a number of teachers dressed in Halloween-related costumes, including a clown costume, a Ronald Reagan costume, and a witch costume; a member of the PTA put up a carnival poster which depicted a Halloween witch stirring a pot; some classes hold storybook dress-up day, where the teacher dresses as a book character; on one occasion, a teacher dressed as a witch from the Wizard of Oz; the book Streganona, an award-winning fairy tale with a witch character, has been read in conjunction with the festivities; these activities have been displayed in a secular and non-sectarian fashion and there has been no attempt to teach or promote wicca, satanism, witchcraft or any form of religion; costumes and decorations simply serve to make Halloween a fun day for the students and serve an educational purpose by enriching the educational background and cultural awareness of the students."
The school board also presented professor of religion, who disputed that Halloween was a religious festival and that Halloween symbols were religious in nature. He asserted that Halloween celebration is a secular event without religious connotations.
The court affirmed the lower court decision that the symbols in question do not constitute an establishment of religion and do not violate the Constitution. The court stated that there was no doubt that the festivities and decorations served a secular purpose and that the Halloween symbols were not an endorsement or promotion of religion.
The court quoted from a U.S. Supreme Court decision: "The First Amendment does not prohibit practices which by any realistic measure create none of the dangers which it is designed to prevent and which do not so directly or substantially involve the state in religious exercises or the favoring of religion as to have meaningful and practical impact. It is of course true that great consequences can grow from small beginnings, but the measure of constitutional adjudication is the ability and willingness to distinguish between real threat and mere shadow." The Florida court concluded, "witches, cauldrons, and brooms in the context of a school Halloween celebration appear to be nothing more than a mere "shadow". if that, in the realm of establishment cause jurisprudence." GUYER V. SCHOOL BOARD, 634 S.2d 806 (Fl. D.Ct.App. 1994)
Best witches for a happy Halloween!
A Florida court addressed the issue whether a grade school Halloween celebration violated the establishment clause of the U.S. Constitution. The First Amendment states stat no law shall be made respecting establishment of religion.
A parent objected to decorations in the public elementary school depicting witches, cauldrons and brooms and objected to teachers dressed as witches in long, black dresses and pointed hats. The parent alleged that witchcraft is a religion, Halloween is a religious holiday and witches in long, black dresses, cauldrons and brooms are religious symbols for some people. The parent sued to enjoin schools from including such decorations and costumes in Halloween celebrations.
According to the court, the school board presented evidence that "a number of teachers dressed in Halloween-related costumes, including a clown costume, a Ronald Reagan costume, and a witch costume; a member of the PTA put up a carnival poster which depicted a Halloween witch stirring a pot; some classes hold storybook dress-up day, where the teacher dresses as a book character; on one occasion, a teacher dressed as a witch from the Wizard of Oz; the book Streganona, an award-winning fairy tale with a witch character, has been read in conjunction with the festivities; these activities have been displayed in a secular and non-sectarian fashion and there has been no attempt to teach or promote wicca, satanism, witchcraft or any form of religion; costumes and decorations simply serve to make Halloween a fun day for the students and serve an educational purpose by enriching the educational background and cultural awareness of the students."
The school board also presented professor of religion, who disputed that Halloween was a religious festival and that Halloween symbols were religious in nature. He asserted that Halloween celebration is a secular event without religious connotations.
The court affirmed the lower court decision that the symbols in question do not constitute an establishment of religion and do not violate the Constitution. The court stated that there was no doubt that the festivities and decorations served a secular purpose and that the Halloween symbols were not an endorsement or promotion of religion.
The court quoted from a U.S. Supreme Court decision: "The First Amendment does not prohibit practices which by any realistic measure create none of the dangers which it is designed to prevent and which do not so directly or substantially involve the state in religious exercises or the favoring of religion as to have meaningful and practical impact. It is of course true that great consequences can grow from small beginnings, but the measure of constitutional adjudication is the ability and willingness to distinguish between real threat and mere shadow." The Florida court concluded, "witches, cauldrons, and brooms in the context of a school Halloween celebration appear to be nothing more than a mere "shadow". if that, in the realm of establishment cause jurisprudence." GUYER V. SCHOOL BOARD, 634 S.2d 806 (Fl. D.Ct.App. 1994)
Best witches for a happy Halloween!
Friday, October 19, 2012
WATER SCIENCE FICTION BECOMES SCIENCE FACT?
One of my favorite 1950s science fiction movies is "The Monolith Monsters" (1957). A meteor crashes to earth, scattering its rock fragments. When one of these pieces comes in contact with water, it absorbs silicon from the environment and begins to grow into huge rock columns or monoliths. Eventually, the monoliths fall, shatter and give rise to new ones, as water makes contact.
Unfortunately, if a person is near one of these rock fragments which has been watered, the fragment will suck all the silicon from the person's body, turning him or her into stone. When a young girl begins to petrify in this manner, intense scientific research is conducted leaving no stone unturned, which reveals the human silicon deficiency caused by the rocks. Doctors develop a saline solution containing silicon, inject it into the little girl, and save her from a stoney fate. The formula then is applied to save others, as they roll into town from the countryside. Thus, water bearing silicon saves lives.
Now, 55 years after this movie was released, there is a report of a study performed at Keele University, UK, which allegedly shows that drinking a silicon-rich mineral water removes aluminum from persons with Alzheimer's disease. The study group, comprised of Alzheimer's patients, drank such mineral water for 12 weeks. For the majority of the study group, there was no deterioration in cognitive abilities, and a some showed improvements. The study apparently concludes, as a preliminary matter, that long term drinking of silicon-rich water can reduce one's exposure to aluminum and lower aluminum in the body, which for those with Alzheimer's disease may have positive benefits for the cognitive functions.
So, silicon in water--has science fiction become science fact?
Unfortunately, if a person is near one of these rock fragments which has been watered, the fragment will suck all the silicon from the person's body, turning him or her into stone. When a young girl begins to petrify in this manner, intense scientific research is conducted leaving no stone unturned, which reveals the human silicon deficiency caused by the rocks. Doctors develop a saline solution containing silicon, inject it into the little girl, and save her from a stoney fate. The formula then is applied to save others, as they roll into town from the countryside. Thus, water bearing silicon saves lives.
Now, 55 years after this movie was released, there is a report of a study performed at Keele University, UK, which allegedly shows that drinking a silicon-rich mineral water removes aluminum from persons with Alzheimer's disease. The study group, comprised of Alzheimer's patients, drank such mineral water for 12 weeks. For the majority of the study group, there was no deterioration in cognitive abilities, and a some showed improvements. The study apparently concludes, as a preliminary matter, that long term drinking of silicon-rich water can reduce one's exposure to aluminum and lower aluminum in the body, which for those with Alzheimer's disease may have positive benefits for the cognitive functions.
So, silicon in water--has science fiction become science fact?
Friday, October 12, 2012
GOOD BUGS, BAD BUGS
Is your drinking water "bugging" you? Two recent articles in the American Chemical Society journal "Environmental Science & Technology" reportedly offer contrasting views of bacteria that may be found in drinking water.
According to one report, well water which is not disinfected may be the cause of up to 1.1 million cases per year of acute gastrointestinal illness--nausea, diarrhea, etc. Such effects may increase as water system infrastructure ages beyond its useful life and deficiencies arise. The study claims that more than 100 million people in the United States receive well water which is not disinfected or not adequately disinfected to control disease-causing nasties. ("Risk of Viral Acute Gastrointestinal Illness from Nondisinfected Drinking Water Distribution Systems", September 12, 2012).
However, the other article suggests that water systems may be able to "manipulate" infrastructure to enable finished water to contain beneficial bacteria. The study explained that ordinarily water utilities control bacteria by using filters to eliminate nutrients for bacteria and by applying chlorine and other disinfection methods to kill them. Indeed, some jurisdictions require a chlorine residual through out the distribution system. The report suggests that the pH of water can determine which bacteria continue in the treatment process, and by changes to the pH and how filters are cleaned, beneficial bacteria could remain in water received by customers. ("Beneficial Community Structure in the Drinking Water Microbiome Is Governed by Filtration Processes", August 8, 2012).
The good bacteria/bad bacteria situation may be tempered by the federal Safe Drinking Water Act and U.S.EPA regulations. There are national primary drinking water standards for control of microorganisms in water with which all public water systems must comply. Generally, such systems are those serving 15 service connections or which regularly serve 25 persons. Under EPA's 2010 proposed revisions to its total coliform rule, public water systems subject to microbial contamination will have to perform an assessment of their system and correct any deficiency in their treatment or distribution facilities.
As a grade school kid, I remember sitting at the kitchen table looking at a drop of tap water through my A.C. Gilbert microscope. I do not know if I saw good bugs, or bad bugs, or just a dirty slide previously used for the grasshopper I had dissected. Frankly, I'm not sure I cared to know, anyway.
According to one report, well water which is not disinfected may be the cause of up to 1.1 million cases per year of acute gastrointestinal illness--nausea, diarrhea, etc. Such effects may increase as water system infrastructure ages beyond its useful life and deficiencies arise. The study claims that more than 100 million people in the United States receive well water which is not disinfected or not adequately disinfected to control disease-causing nasties. ("Risk of Viral Acute Gastrointestinal Illness from Nondisinfected Drinking Water Distribution Systems", September 12, 2012).
However, the other article suggests that water systems may be able to "manipulate" infrastructure to enable finished water to contain beneficial bacteria. The study explained that ordinarily water utilities control bacteria by using filters to eliminate nutrients for bacteria and by applying chlorine and other disinfection methods to kill them. Indeed, some jurisdictions require a chlorine residual through out the distribution system. The report suggests that the pH of water can determine which bacteria continue in the treatment process, and by changes to the pH and how filters are cleaned, beneficial bacteria could remain in water received by customers. ("Beneficial Community Structure in the Drinking Water Microbiome Is Governed by Filtration Processes", August 8, 2012).
The good bacteria/bad bacteria situation may be tempered by the federal Safe Drinking Water Act and U.S.EPA regulations. There are national primary drinking water standards for control of microorganisms in water with which all public water systems must comply. Generally, such systems are those serving 15 service connections or which regularly serve 25 persons. Under EPA's 2010 proposed revisions to its total coliform rule, public water systems subject to microbial contamination will have to perform an assessment of their system and correct any deficiency in their treatment or distribution facilities.
As a grade school kid, I remember sitting at the kitchen table looking at a drop of tap water through my A.C. Gilbert microscope. I do not know if I saw good bugs, or bad bugs, or just a dirty slide previously used for the grasshopper I had dissected. Frankly, I'm not sure I cared to know, anyway.
Friday, October 5, 2012
GOOD TO THE LAST DROP?
Use of water softening equipment has been prevalent for some time, particularly where hard water from wells is the source of supply. Typically, water softeners employ the ion exchange method, using salt in the form of pellets or blocks.
From time to time, there has been debate over potential health effects of using salt in this way, which can result in some salt being added to the softened water. In addition, in at least one state-California-some communities have banned water softeners using salt because of perceived adverse impacts of effluent salt brine on waste water treatment plants.
Interestingly, American history may provide a unique alternative to the traditional water softener method. According to an 1831 New York scientific report, urine provided am effective water softener for high concentrations of minerals being experienced due to runoff from graveyards and outhouses.
The report purportedly stated: "This liquid, [urine] when stale or putrid, has the remarkable property of precipitating the earthy salts from their solution, or in other words, it makes hard waters soft. Although the fastidious may revolt from the use of water thus sweetened to our palate, it is perhaps fortunate that this mixture is daily taking place, for otherwise the water of this city would become, in a much shorter space of time than it actually does, utterly unfit for domestic consumption." (Quote from Nelson Blake, "Water For Cities" in ON TAP magazine, Summer 2005)
In a way, this water softening technique may have been attempted in 2011. It was reported that a man was caught on a security camera urinating into one of Portland, Oregon's finished water reservoirs. The city, however, responded by draining the reservoir of some 8 million gallons. The man was quoted as saying that he thought it was a waste water treatment plant. (Oregonian.com, June 15, 2011) A policeman was quoted as saying "It's really an unfortunate incident that probably could have been avoided if he had just chosen a bush." (KGD.com, June 16, 2011) The man later allegedly pleaded guilty to "misuse of a reservoir" and was sentenced to community service (KPTV.com August 30, 2012).
An analysis has been made of the residential sewage flows in London during the royal wedding of Prince William and Kate Middleton. The flows decreased when the first guests arrived at Westminster Abbey, decreased more rapidly when the royal family arrived and reached the largest decrease when Kate arrived. Flows did not return to normal until after the kiss on the balcony of Buckingham Palace. (WE&T magazine, August 2011) Perhaps this analysis suggests that urine water softening may not be reliable.
From time to time, there has been debate over potential health effects of using salt in this way, which can result in some salt being added to the softened water. In addition, in at least one state-California-some communities have banned water softeners using salt because of perceived adverse impacts of effluent salt brine on waste water treatment plants.
Interestingly, American history may provide a unique alternative to the traditional water softener method. According to an 1831 New York scientific report, urine provided am effective water softener for high concentrations of minerals being experienced due to runoff from graveyards and outhouses.
The report purportedly stated: "This liquid, [urine] when stale or putrid, has the remarkable property of precipitating the earthy salts from their solution, or in other words, it makes hard waters soft. Although the fastidious may revolt from the use of water thus sweetened to our palate, it is perhaps fortunate that this mixture is daily taking place, for otherwise the water of this city would become, in a much shorter space of time than it actually does, utterly unfit for domestic consumption." (Quote from Nelson Blake, "Water For Cities" in ON TAP magazine, Summer 2005)
In a way, this water softening technique may have been attempted in 2011. It was reported that a man was caught on a security camera urinating into one of Portland, Oregon's finished water reservoirs. The city, however, responded by draining the reservoir of some 8 million gallons. The man was quoted as saying that he thought it was a waste water treatment plant. (Oregonian.com, June 15, 2011) A policeman was quoted as saying "It's really an unfortunate incident that probably could have been avoided if he had just chosen a bush." (KGD.com, June 16, 2011) The man later allegedly pleaded guilty to "misuse of a reservoir" and was sentenced to community service (KPTV.com August 30, 2012).
An analysis has been made of the residential sewage flows in London during the royal wedding of Prince William and Kate Middleton. The flows decreased when the first guests arrived at Westminster Abbey, decreased more rapidly when the royal family arrived and reached the largest decrease when Kate arrived. Flows did not return to normal until after the kiss on the balcony of Buckingham Palace. (WE&T magazine, August 2011) Perhaps this analysis suggests that urine water softening may not be reliable.
Friday, September 28, 2012
WILL USEPA REGULATE NITROSAMINES IN DRINKING WATER?
Apparently,USEPA is considering whether to regulate nitrosamines in drinking water provided by public water supplies. What is the world are nitrosamines?
Nitrosamines are a group of approximately 300 organic compounds, most of which have been found to be carcinogenic in a variety of experimental animals. They are found in certain foods, such as fried bacon, cured meets and beer, in tobacco products, in rubber products, in certain cosmetics; and in gastric juices of the human stomach. Mouth bacteria can turn nitrates found in certain vegetables into nitrites, which can form nitrosating agents. Foods containing amines can react with these agents to produce nitrosamines in the stomach.
In public water supplies, nitrosamines can be formed by disinfection of water using chloramines.
In the September, 2012 issue of Journal AWWA, J. Alan Roberson discusses USEPA's potential regulation of nitrosamines in drinking water ("Regulating Nitrosamines Now Will Be Controversial"), p. 10). He points out that controversy could arise because, under the Safe Drinking Water Act, USEPA must conclude that such regulation will result in a meaningful health risk reduction. For example, he points to research concluding that oral intake of nitrosamines from drinking water comprised only 0.2% compared with other outside sources and that generated in body fluids. Advanced treatment installed by a utility to comply with a standard for nitrosamines in drinking water, therefore, may not achieve any meaningful health risk reduction.
Moreover, the article points out, such advanced treatment may be like punching a pillow on one end, which then bulges out on the other end. Treatment for nitrosamines using chlorine or ozone could result in formation of more regulated disinfection byproducts requiring more control.
Logically, what all this seems to boil down to is the necessity for a thorough cost/benefit analysis of any potential regulation of nitrosamines in drinking water. Only in that way can unnecessary cost burdens ultimately imposed on users by higher rates can be avoided. Prudent water utilities will not only monitor this regulatory process, but also participate in it.
Nitrosamines are a group of approximately 300 organic compounds, most of which have been found to be carcinogenic in a variety of experimental animals. They are found in certain foods, such as fried bacon, cured meets and beer, in tobacco products, in rubber products, in certain cosmetics; and in gastric juices of the human stomach. Mouth bacteria can turn nitrates found in certain vegetables into nitrites, which can form nitrosating agents. Foods containing amines can react with these agents to produce nitrosamines in the stomach.
In public water supplies, nitrosamines can be formed by disinfection of water using chloramines.
In the September, 2012 issue of Journal AWWA, J. Alan Roberson discusses USEPA's potential regulation of nitrosamines in drinking water ("Regulating Nitrosamines Now Will Be Controversial"), p. 10). He points out that controversy could arise because, under the Safe Drinking Water Act, USEPA must conclude that such regulation will result in a meaningful health risk reduction. For example, he points to research concluding that oral intake of nitrosamines from drinking water comprised only 0.2% compared with other outside sources and that generated in body fluids. Advanced treatment installed by a utility to comply with a standard for nitrosamines in drinking water, therefore, may not achieve any meaningful health risk reduction.
Moreover, the article points out, such advanced treatment may be like punching a pillow on one end, which then bulges out on the other end. Treatment for nitrosamines using chlorine or ozone could result in formation of more regulated disinfection byproducts requiring more control.
Logically, what all this seems to boil down to is the necessity for a thorough cost/benefit analysis of any potential regulation of nitrosamines in drinking water. Only in that way can unnecessary cost burdens ultimately imposed on users by higher rates can be avoided. Prudent water utilities will not only monitor this regulatory process, but also participate in it.
Labels:
Properties of Water,
Regulation,
Safe Drinking Water
Thursday, September 20, 2012
GETTING THE LEAD OUT
Lead in drinking water has been a regulatory target for some time. Water public utilities rarely, if ever, furnish treated water containing lead. Rather, typically, lead enters drinking water from sources within a customer's property--such as from use of lead based solder for connecting copper pipes, use of faucets made from brass, and use of lead service lines from the distribution main in the street to the premises.
Under the federal Safe Drinking Water Act, U.S.EPA has been dealing with lead issues since at least 1986, reducing the permitted lead content in plumbing materials. In addition, there has been a focus in possible reduction, in some circumstances, of the aggressiveness of water supplied by a utility.
In 2011, Congress enacted the Reduction of Lead in Drinking Water Act, which imposes a new, more strict definition of "lead-free" plumbing. Under the Act, "lead-free" means that solder and flux must not contain more than 0.2% lead, and the wetted surface of drinking water pipes, pipe fittings, plumbing fittings and fixtures cannot exceed a weighted average of 0.25% lead.
The Act states that no person may use any pipe, pipe or plumbing fitting, fixture, solder or flux that is not so "lead-free" in the installation or repair of any public water system or any plumbing in a house or non-residential facility which provides water for human consumption. The Act provides a formula for calculating the weighted average lead content of wetted surfaces. Exemptions from the lead-free requirement are provided for non-consumption uses, such as toilets, bidets, urinals, shower valves, outdoor watering fixtures, etc.
The Act becomes effective January 4, 2014. However, U.S.EPA likely will soon propose regulations to implement the Act. A proposed rule may be published in October, 2012, with a final rule by the end of 2013. It is possible that, in addition to banning items that do not comply with the lead-free requirement, the regulations may establish other requirements, such as specific product identification and compliance procedures.
As the Act can affect not only water utilities but also homeowners, plumbing contractors, manufacturers, vendors and the like, it may be prudent for interested parties to be aware of both the Act and the implementation regulations.
Under the federal Safe Drinking Water Act, U.S.EPA has been dealing with lead issues since at least 1986, reducing the permitted lead content in plumbing materials. In addition, there has been a focus in possible reduction, in some circumstances, of the aggressiveness of water supplied by a utility.
In 2011, Congress enacted the Reduction of Lead in Drinking Water Act, which imposes a new, more strict definition of "lead-free" plumbing. Under the Act, "lead-free" means that solder and flux must not contain more than 0.2% lead, and the wetted surface of drinking water pipes, pipe fittings, plumbing fittings and fixtures cannot exceed a weighted average of 0.25% lead.
The Act states that no person may use any pipe, pipe or plumbing fitting, fixture, solder or flux that is not so "lead-free" in the installation or repair of any public water system or any plumbing in a house or non-residential facility which provides water for human consumption. The Act provides a formula for calculating the weighted average lead content of wetted surfaces. Exemptions from the lead-free requirement are provided for non-consumption uses, such as toilets, bidets, urinals, shower valves, outdoor watering fixtures, etc.
The Act becomes effective January 4, 2014. However, U.S.EPA likely will soon propose regulations to implement the Act. A proposed rule may be published in October, 2012, with a final rule by the end of 2013. It is possible that, in addition to banning items that do not comply with the lead-free requirement, the regulations may establish other requirements, such as specific product identification and compliance procedures.
As the Act can affect not only water utilities but also homeowners, plumbing contractors, manufacturers, vendors and the like, it may be prudent for interested parties to be aware of both the Act and the implementation regulations.
Thursday, September 13, 2012
DOES UTILITY JOB CREATION HELP THE ECONOMY?
The above title raises a curious question. Certainly, we all know that the national economy has been weak for several years and continues to struggle. We also know that millions are without employment, job creation has been disappointing and many people have given up seeking employment.
Politicians are preaching that the economy and job creation are primary issues facing the nation today. Many involved in the water and waste water public utility industry, including USEPA, sound the alarm that billions of dollars are needed to invest in replacement and upgrade of aging water and waste water utility infrastructure. In turn, making such investment in infrastructure , it is claimed, will create thousands of jobs and presumably benefit the economy.
So, for example, USEPA claims that for every $1 billion spent on such infrastructure, 40,000 jobs will be created. In its press releases announcing grants for various purposes, EPA frequently suggests how many jobs will be created by its generosity. Another group has claimed that the Water Protection and Investment Act of 2012 (discussed in my September 7, 2012 posting) will create at least 169,000 jobs over 10 years. On the other hand, another group has stated that without such infrastructure upgrades, the economy will lose nearly 700,000 jobs by 2020.
No doubt, new public utility sector jobs should benefit those who occupy the jobs. But, will the economy be benefitted? An interesting article in Harvard Magazine discusses that question (September-Ocotober, 2012). In "Can America Compete", the magazine interviews scholars who participated in the Harvard Business School's U.S. Competitiveness Project.
The Project's findings appear to be that the problem with the economy is a long-term erosion of U.S. competitiveness in a more and more challenging world economy. It concluded that, for the past ten years, almost all new jobs were created in local businesses, such as government, healthcare and retail, not in businesses that compete internationally. The project defined U.S. competitiveness as the ability of U.S. companies to succeed in the world markets, while at the same time raising the living standards of Americans.
As one participant stated, "the rhetoric these days is all about jobs, jobs, jobs. It's easy to understand why: if you lack a job, it is all about jobs. But if you set out simply to create jobs for their own sake, you wind up investing in areas not where you're productive, but where you can create a lot of jobs quickly. Yes, we absolutely want jobs. But we want competitive jobs that can last in a demanding global economy."
Another participant added: "the sectors where you can generate the most jobs quickly tend to be in things like healthcare and construction--inherently local activities. But any economy is an interesting combination of what we call 'traded businesses'--like manufacturing, sophisticated services, and tourism that are exposed to international competition--and local ones. For any large population there are a lot of local needs--food, housing, utilities--but ultimately the vitality of an economy is heavily determined by the traded part....You want local needs to be met efficiently, but the ultimate wealth that feeds the local economy derives heavily from the traded economy."
One other point: where does the money come from that EPA and other governmental agencies give away for localized job creation? Does it not come from more debt, which in turn fuels a struggling economy that dampens investment needed for long run productive growth in the traded economy?
Politicians are preaching that the economy and job creation are primary issues facing the nation today. Many involved in the water and waste water public utility industry, including USEPA, sound the alarm that billions of dollars are needed to invest in replacement and upgrade of aging water and waste water utility infrastructure. In turn, making such investment in infrastructure , it is claimed, will create thousands of jobs and presumably benefit the economy.
So, for example, USEPA claims that for every $1 billion spent on such infrastructure, 40,000 jobs will be created. In its press releases announcing grants for various purposes, EPA frequently suggests how many jobs will be created by its generosity. Another group has claimed that the Water Protection and Investment Act of 2012 (discussed in my September 7, 2012 posting) will create at least 169,000 jobs over 10 years. On the other hand, another group has stated that without such infrastructure upgrades, the economy will lose nearly 700,000 jobs by 2020.
No doubt, new public utility sector jobs should benefit those who occupy the jobs. But, will the economy be benefitted? An interesting article in Harvard Magazine discusses that question (September-Ocotober, 2012). In "Can America Compete", the magazine interviews scholars who participated in the Harvard Business School's U.S. Competitiveness Project.
The Project's findings appear to be that the problem with the economy is a long-term erosion of U.S. competitiveness in a more and more challenging world economy. It concluded that, for the past ten years, almost all new jobs were created in local businesses, such as government, healthcare and retail, not in businesses that compete internationally. The project defined U.S. competitiveness as the ability of U.S. companies to succeed in the world markets, while at the same time raising the living standards of Americans.
As one participant stated, "the rhetoric these days is all about jobs, jobs, jobs. It's easy to understand why: if you lack a job, it is all about jobs. But if you set out simply to create jobs for their own sake, you wind up investing in areas not where you're productive, but where you can create a lot of jobs quickly. Yes, we absolutely want jobs. But we want competitive jobs that can last in a demanding global economy."
Another participant added: "the sectors where you can generate the most jobs quickly tend to be in things like healthcare and construction--inherently local activities. But any economy is an interesting combination of what we call 'traded businesses'--like manufacturing, sophisticated services, and tourism that are exposed to international competition--and local ones. For any large population there are a lot of local needs--food, housing, utilities--but ultimately the vitality of an economy is heavily determined by the traded part....You want local needs to be met efficiently, but the ultimate wealth that feeds the local economy derives heavily from the traded economy."
One other point: where does the money come from that EPA and other governmental agencies give away for localized job creation? Does it not come from more debt, which in turn fuels a struggling economy that dampens investment needed for long run productive growth in the traded economy?
Friday, September 7, 2012
MORE TAXES FOR MORE GOVERNMENT WASTE WATER GRANTS?
In August, a bill was introduced in the U.S. House of Representatives proposing "The Water Protection and Reinvestment Act of 2012." The apparent purpose of this proposed legislation is to enable the federal government to give more grants and loans to local governments to meet more federal mandates to upgrade waste water disposal facilities. Interestingly, the sponsor indicates that too much of the costs to meet federal regulations are being borne by local governments and ratepayers, so "new sources of revenue" are needed to enable the federal government to fund local waste water infrastructure requirements.
The "new sources of revenue" proposed are federal taxes on the sale by manufacturers, producers and importers of containers of water-based beverages, water disposal products and pharmaceutical products. A water-based beverage is defined as a container of water or of any mixture that is at least 50% water. There are some exceptions, including for alcoholic beverages. Water disposal products are defined to include soaps, detergents, toiletries, toilet tissue, water softeners and cooking oils. While the tax purports to be on manufacturers, producers and importers, no doubt the tax burden would be passed on in the ultimate cost of the product to consumers.
Other features of the bill is a mandate that states develop "affordability" criteria to use in identifying municipalities that cannot afford to upgrade facilities to meet federal mandates. It also provides for establishment of "best industry practices" for publicly owned waste water systems and for cost of service studies.
Recently, some have proclaimed that all Americans belong to the government. Perhaps, this proposed legislation can be viewed as creating further dependency on government. The paradox may be that the need for"new sources of revenue" is being created at least in substantial part by increased governmental regulations. And, while it is said that in certain situations consumers may not be able to afford needed system upgrades, the source of federal funding under this legislation is more taxes likely to be borne by all consumers. So, what has happened to the rate making principle that costs to serve ratepayers should be assigned to and paid for by the ratepayers who benefit from that service? Is the assumption of "affordability" consistent with the principle that ratepayers should pay for their costs of service?
The "new sources of revenue" proposed are federal taxes on the sale by manufacturers, producers and importers of containers of water-based beverages, water disposal products and pharmaceutical products. A water-based beverage is defined as a container of water or of any mixture that is at least 50% water. There are some exceptions, including for alcoholic beverages. Water disposal products are defined to include soaps, detergents, toiletries, toilet tissue, water softeners and cooking oils. While the tax purports to be on manufacturers, producers and importers, no doubt the tax burden would be passed on in the ultimate cost of the product to consumers.
Other features of the bill is a mandate that states develop "affordability" criteria to use in identifying municipalities that cannot afford to upgrade facilities to meet federal mandates. It also provides for establishment of "best industry practices" for publicly owned waste water systems and for cost of service studies.
Recently, some have proclaimed that all Americans belong to the government. Perhaps, this proposed legislation can be viewed as creating further dependency on government. The paradox may be that the need for"new sources of revenue" is being created at least in substantial part by increased governmental regulations. And, while it is said that in certain situations consumers may not be able to afford needed system upgrades, the source of federal funding under this legislation is more taxes likely to be borne by all consumers. So, what has happened to the rate making principle that costs to serve ratepayers should be assigned to and paid for by the ratepayers who benefit from that service? Is the assumption of "affordability" consistent with the principle that ratepayers should pay for their costs of service?
Thursday, August 30, 2012
STORM WATER PUBLIC UTILITIES GET INCREASING ATTENTION
Two years ago, I discussed the possible formation of storm water public utilities to enable municipalities to provide comprehensive storm water management to achieve regulatory compliance ("Is A Storm Water Utility In Your Future?", December 27, 2010).
Now, it seems that more and more municipalities are forming such utilities to construct, operate and maintain storm water disposal systems. For, example, it is reported that in South Dakota, Sioux Falls, Brookings, Aberdeen, Pierre and Vermillion have such utilities and Rapid City is considering one. A typical feature of a storm water public utility is a rate structure by which property owners are charged in accordance with their estimated contribution to runoff, and both revenues and expenses are separately accounted for using enterprise accounting.
A recent decision of the Maine Supreme Judicial Court is instructive as to the propriety of storm water public utility ratemaking. (City of Lewiston v. Gladu, 2012 ME 42 (2012)). The Court held that the rate charged was a fee for service, not a tax.
The Court found that there was a link between the rates charged and the amount of impact imposed on the storm water management system. The fee was based on the amount of impervious surface of each property. Fee reductions were allowed for certain conditions, including where a property has a storm water system that does not impact the municipal system, or where the property is undeveloped.
The Court noted that all of the utility revenues were to cover only the costs of regulating storm water runoff, maintaining the storm water infrastructure and managing the utility. In other words, revenues did not cross-subsidize other municipal functions.
The Court also found that the utility provided a benefit to property owners. "The assessment applies only to developed property, the properties receive the special benefit of having their stormwater managed in an effort to comply with state and federal laws, and the assessment is properly based on the horizontal impervious surface area. Viewing this factor in light of the recent trend toward upholding fees that 'confer intangible benefits on both those who are assessed and those who are not'...it weighs in favor of upholding the stormwater fee." (pp.11-12)
The Court cited Tukwila School District No. 406 v. City of Tukwila, 167 P.3rd 1167 (Ct. App. WA 2007), which upheld a storm water utility where the rates were limited to protecting property owners and local water sources from runoff, the revenues were segregated and used only for those purposes, and the fees were approximately proportional to the amount of impervious surface of the properties.
It would seem that the formation of a storm water public utility is particularly attractive in view of the ever-increasing environmental regulatory climate for storm water control and the every-decreasing municipal revenue climate in today's economy.
Now, it seems that more and more municipalities are forming such utilities to construct, operate and maintain storm water disposal systems. For, example, it is reported that in South Dakota, Sioux Falls, Brookings, Aberdeen, Pierre and Vermillion have such utilities and Rapid City is considering one. A typical feature of a storm water public utility is a rate structure by which property owners are charged in accordance with their estimated contribution to runoff, and both revenues and expenses are separately accounted for using enterprise accounting.
A recent decision of the Maine Supreme Judicial Court is instructive as to the propriety of storm water public utility ratemaking. (City of Lewiston v. Gladu, 2012 ME 42 (2012)). The Court held that the rate charged was a fee for service, not a tax.
The Court found that there was a link between the rates charged and the amount of impact imposed on the storm water management system. The fee was based on the amount of impervious surface of each property. Fee reductions were allowed for certain conditions, including where a property has a storm water system that does not impact the municipal system, or where the property is undeveloped.
The Court noted that all of the utility revenues were to cover only the costs of regulating storm water runoff, maintaining the storm water infrastructure and managing the utility. In other words, revenues did not cross-subsidize other municipal functions.
The Court also found that the utility provided a benefit to property owners. "The assessment applies only to developed property, the properties receive the special benefit of having their stormwater managed in an effort to comply with state and federal laws, and the assessment is properly based on the horizontal impervious surface area. Viewing this factor in light of the recent trend toward upholding fees that 'confer intangible benefits on both those who are assessed and those who are not'...it weighs in favor of upholding the stormwater fee." (pp.11-12)
The Court cited Tukwila School District No. 406 v. City of Tukwila, 167 P.3rd 1167 (Ct. App. WA 2007), which upheld a storm water utility where the rates were limited to protecting property owners and local water sources from runoff, the revenues were segregated and used only for those purposes, and the fees were approximately proportional to the amount of impervious surface of the properties.
It would seem that the formation of a storm water public utility is particularly attractive in view of the ever-increasing environmental regulatory climate for storm water control and the every-decreasing municipal revenue climate in today's economy.
Wednesday, August 22, 2012
SEARCHING FOR TRUTH IN SCIENCE
"Heartless science seeks truth, and truth alone, quite apart from any consequences that may arise."--Alexander Graham Bell
Bell demonstrated his concept of heartless science in his feverish labor, with much personal sacrifice, to invent a metal detector which could be used to locate an assassin's bullet in the back of President Garfield. Although it was perfected too late to help the President, the device worked and was used into World War I, even though the x-ray became available.
Unfortunately, science is not always heartless; rather, it can be influenced by bias, agendas or even ignorance. Consequently, science may not always attain the truth idealized by Bell.
For example, in the late 1880s, many doctors in the United States rejected Lister's discovery and application of antisepsis. They also rejected Pasteur's discovery that germs cause illness, believing that if one cannot see germs then they do not exist.
More recently, scientists have asserted that ancient Maya writings have predicted that the earth will end December 21, 2012. Now, scientists have discovered other Maya writings showing that no such prediction was made. (Science News, August 11, 2012).
Many scientists have asserted that global warming is human caused. Recently, for example, a group has indicated that the probability Texas will experience hot, dry weather in a La Nina year increases 20 times due to human caused global warming. (Science News, August 11, 2012). On the other hand, scientists apparently were surprised this month by a report that the amount of carbon dioxide being released in the United States has fallen to its lowest level in 20 years. The decline has occurred due to market forces (cheaper natural gas), not by governmental fiat.
So how does Bell relate to water and waste water utilities? These utilities are subject to treatment standards, regulations and enforcement actions by federal and state regulatory agencies. These agencies are assumed to have scientific "expertise", their rules are assumed to be based on scientific truth, and their "authority" is assumed to be boundless.
These assumption may not be true, in point of fact. Thus, on August 21, 2012, the U.S. Court of Appeals for the D.C. Circuit held that EPA's rule regarding emissions from coal-burning power plants crossing state lines (Cross-State Air Pollution Rule) exceeded EPA's statutory authority. Earlier in the month, the 5th Circuit Court of Appeals held that EPA's rejection of the Texas permitting process for utilities and industrial plants had no basis in the Clean Air Act or its implementing regulations.
When new standards or regulations are proposed, water and waste water utilities should carefully review the basis and support for the proposals. They should consider questioning and commenting when opportunities arise, and challenging them when costs exceed benefits or scientific support appears lacking. Likewise, in the case of enforcement actions by regulators, allegations that may not have an evidentiary basis or appear to be beyond statutory authority should be defended against.
There are times when regulation can be heartless. But if regulation is not based upon scientific and legal truth, the potential consequences can justify challenge.
Bell demonstrated his concept of heartless science in his feverish labor, with much personal sacrifice, to invent a metal detector which could be used to locate an assassin's bullet in the back of President Garfield. Although it was perfected too late to help the President, the device worked and was used into World War I, even though the x-ray became available.
Unfortunately, science is not always heartless; rather, it can be influenced by bias, agendas or even ignorance. Consequently, science may not always attain the truth idealized by Bell.
For example, in the late 1880s, many doctors in the United States rejected Lister's discovery and application of antisepsis. They also rejected Pasteur's discovery that germs cause illness, believing that if one cannot see germs then they do not exist.
More recently, scientists have asserted that ancient Maya writings have predicted that the earth will end December 21, 2012. Now, scientists have discovered other Maya writings showing that no such prediction was made. (Science News, August 11, 2012).
Many scientists have asserted that global warming is human caused. Recently, for example, a group has indicated that the probability Texas will experience hot, dry weather in a La Nina year increases 20 times due to human caused global warming. (Science News, August 11, 2012). On the other hand, scientists apparently were surprised this month by a report that the amount of carbon dioxide being released in the United States has fallen to its lowest level in 20 years. The decline has occurred due to market forces (cheaper natural gas), not by governmental fiat.
So how does Bell relate to water and waste water utilities? These utilities are subject to treatment standards, regulations and enforcement actions by federal and state regulatory agencies. These agencies are assumed to have scientific "expertise", their rules are assumed to be based on scientific truth, and their "authority" is assumed to be boundless.
These assumption may not be true, in point of fact. Thus, on August 21, 2012, the U.S. Court of Appeals for the D.C. Circuit held that EPA's rule regarding emissions from coal-burning power plants crossing state lines (Cross-State Air Pollution Rule) exceeded EPA's statutory authority. Earlier in the month, the 5th Circuit Court of Appeals held that EPA's rejection of the Texas permitting process for utilities and industrial plants had no basis in the Clean Air Act or its implementing regulations.
When new standards or regulations are proposed, water and waste water utilities should carefully review the basis and support for the proposals. They should consider questioning and commenting when opportunities arise, and challenging them when costs exceed benefits or scientific support appears lacking. Likewise, in the case of enforcement actions by regulators, allegations that may not have an evidentiary basis or appear to be beyond statutory authority should be defended against.
There are times when regulation can be heartless. But if regulation is not based upon scientific and legal truth, the potential consequences can justify challenge.
Friday, August 3, 2012
JUDICIAL LIMITS ON AGENCY AUTHORITY
Over the years, courts have applied several legal principles to limit the apparent exercise of authority by an administrative agency. One of the well-established principles is that an administrative agency has only those powers delegated to it by the statutes creating it. In other words, the agency's actions must be within the statutory scope of its jurisdiction and authority.
Another principle of administrative law is that an agency must follow its own rules. This concept, in effect, is one of procedural due process.
A Washington, DC, federal District Court decision issued this week arguably illustrates application of these two principles. The Court reviewed new, more stringent water quality standards promulgated by EPA to deal with mineral deposits in streams resulting from mountain top removal surface coal mining. The mining industry allegedly argued that the new standards were not issued in compliance with the agency's own rule making procedures, which include a requirement for formal notice and opportunity for public comment.
The District Court accepted the industry position and, in addition, in effect held that the agency exceeded its authority under the Clean Water Act. Interestingly, earlier this year another Washington District Court held that, when EPA revoked a permit for a mountain top removal mine, it exceeded its authority.
Recall that earlier this year, the Supreme Court rejected EPA's arguments to the contrary and held that there is a right to judicial review of EPA's compliance orders. That decision, along with the District Courts' opinions discussed above, appear to demonstrate the continuing importance of judicial restraints on agency actions which exceed its authority and may deny due process.
Another principle of administrative law is that an agency must follow its own rules. This concept, in effect, is one of procedural due process.
A Washington, DC, federal District Court decision issued this week arguably illustrates application of these two principles. The Court reviewed new, more stringent water quality standards promulgated by EPA to deal with mineral deposits in streams resulting from mountain top removal surface coal mining. The mining industry allegedly argued that the new standards were not issued in compliance with the agency's own rule making procedures, which include a requirement for formal notice and opportunity for public comment.
The District Court accepted the industry position and, in addition, in effect held that the agency exceeded its authority under the Clean Water Act. Interestingly, earlier this year another Washington District Court held that, when EPA revoked a permit for a mountain top removal mine, it exceeded its authority.
Recall that earlier this year, the Supreme Court rejected EPA's arguments to the contrary and held that there is a right to judicial review of EPA's compliance orders. That decision, along with the District Courts' opinions discussed above, appear to demonstrate the continuing importance of judicial restraints on agency actions which exceed its authority and may deny due process.
Wednesday, July 18, 2012
ARE WE REALLY POWERLESS?
It was a sunny, quiet Sunday afternoon...or so it seemed. I was sinking into my favorite, no-think chair scanning my favorite no-think newspaper. Suddenly, darkness. I turned on the reading lamp and continued my no-thinkng. Even more suddenly, a vicious wind howled, lightning and thunder came along with torrents of what appeared to be rain but included leaves and branches. And, click...the power went out and darkness without became darkness within.
I think, another electricity outage, one that probably will last for several days again.
I think, since we are on a private well, there will be no flushing of toilets. There will be no showers. There will be no washing of dishes or clothes. There will be no morning coffee or drink of water at the tap.
I think, the stuff in the freezer will melt, the stuff in the refrigerator will spoil and the microwave will not work.
I think, 100 degree days are forecast, and the air conditioning will not work, and I will melt and spoil.
I think, the television will not work and the computer will not work and the powered telephone will not work and my mobile phone will not recharge, and I will not be entertained or communicated.
I think, I will have no reading light for my no-think reading and no light for my evening darkness, which I probably will curse even with a candle.
Ah, I think, I can drive to my local grocery store and buy bottled water. And, I can drive to my local greasy spoon cafe for some greasy spoon food to eat...if they, of course, have electricity, if it really matters.
But...then I think, millions of people in the world would give anything to be in my perceived predicament. Three million people in the world every year die for lack of safe drinking water and safe sanitation disposal. These are the real power outages. Further, millions of people in the world have no indoor plumbing, no showers, no air conditioning, no refrigerators and freezers, no television and computers and no local grocery stores or local cafes.
I think, the United States every year gives billions of dollars of foreign aid to other countries for military purposes. I think, what if a large chunk of that giveaway were for safe drinking water and sanitation facilities. That would be real power...to save.
I think, another electricity outage, one that probably will last for several days again.
I think, since we are on a private well, there will be no flushing of toilets. There will be no showers. There will be no washing of dishes or clothes. There will be no morning coffee or drink of water at the tap.
I think, the stuff in the freezer will melt, the stuff in the refrigerator will spoil and the microwave will not work.
I think, 100 degree days are forecast, and the air conditioning will not work, and I will melt and spoil.
I think, the television will not work and the computer will not work and the powered telephone will not work and my mobile phone will not recharge, and I will not be entertained or communicated.
I think, I will have no reading light for my no-think reading and no light for my evening darkness, which I probably will curse even with a candle.
Ah, I think, I can drive to my local grocery store and buy bottled water. And, I can drive to my local greasy spoon cafe for some greasy spoon food to eat...if they, of course, have electricity, if it really matters.
But...then I think, millions of people in the world would give anything to be in my perceived predicament. Three million people in the world every year die for lack of safe drinking water and safe sanitation disposal. These are the real power outages. Further, millions of people in the world have no indoor plumbing, no showers, no air conditioning, no refrigerators and freezers, no television and computers and no local grocery stores or local cafes.
I think, the United States every year gives billions of dollars of foreign aid to other countries for military purposes. I think, what if a large chunk of that giveaway were for safe drinking water and sanitation facilities. That would be real power...to save.
Thursday, July 5, 2012
POLITICIANS, WAKE UP...IT'S THE WATER!
A recent article in the Wall Street Journal described current international concern over alleged "global warming" and energy as "feel-good environmentalism." In the United States, policy-makers' obsession over so-called "green energy" and energy regulation similarly may be masking a far more serious issue: water.
In the United States, as well as in other countries, there appear to be multiple sources of energy available to meet demand, including natural gas, coal, oil,solar, wind, nuclear, wood and even trash. Many of these sources seem nearly unlimited as a practical matter. On the other hand, there are only two sources of fresh drinking water--above ground and below ground--and fresh water is a very small portion of total water on earth.
According to the Journal article, world-wide about 3 million people die annually from lack of access to safe drinking water. In the United States, studies and concerns over sufficiency and quality of drinking water sources are becoming more and more common.
For example, in New Jersey, testing of private water wells by the Department of Environmental Pollution showed one out of eight wells exceeded safe limits for arsenic, alpha, mercury, nitrates or volatile organic compounds. (The Times, Trenton). The article stated that while some contaminants are naturally occurring, many were the ground water pollution result over over-development.
Along similar lines, the U.S. Geological Survey (USGS) has announced the results of its study of New England bedrock ground water. In addition to naturally occurring contaminants, it found sodium, chlorides, nitrates, methyl-tert-butyl ether and chloroform attributable to human activities. (pubs.usgs.gov/sir/2011/5220/)
Beside contamination of water sources of supply, there also is growing concern over sustainability of drinking water supplies. For example, a new study by USGS in conjunction with Maryland state agencies of an aquifer underlying the state is illustrative. The study found that the aquifer water is over a million years old, but is not recharging as fast as wells are pumping water from it.
The USGS Maryland study found that modern pumping rates have lowered water pressure and changed its chemistry, adversely affecting the aquifer's ability to meet fresh water demands. Further, concern over salt water intrusion has caused utilities to move from shallow aquifers to the deep aquifer, resulting in ground water levels to decline. (springerlink.com/content/j08u34jh46r632v4/?MUD=MP)
In Colorado, it was reported that farmers asked the governor to allow ground water wells to pump irrigation water because irrigation ditches are drying and crops were at risk. The governor declined on the ground that he did not have authority. The governor allegedly stated that pumping could adversely affect downstream flows in the South Platte River and owners of senior water rights downstream. Apparently, studies have shown that pumping of ground water in the area depletes river flows. (Greeley Tribune)
Fresh, safe drinking water is a very limited resource. Policy makers, governmental authorities and politicians should make such water--its availability, conservation, safety, and sustainability--an absolute priority. Human health and safety in this country and in the world is more critical than funding bankrupt solar panel manufacturers.
The Badlands of South Dakota are a hot, arid moon landscape. One of their residents is the short-horned lizard. It loves the Badlands because they are hot and there is little or no water there. When the temperature exceeds 100 degrees, the lizards bury themselves under rocks or in the soil to conserve water. Let is hope we will not evolve backwards into short-horned lizards.
In the United States, as well as in other countries, there appear to be multiple sources of energy available to meet demand, including natural gas, coal, oil,solar, wind, nuclear, wood and even trash. Many of these sources seem nearly unlimited as a practical matter. On the other hand, there are only two sources of fresh drinking water--above ground and below ground--and fresh water is a very small portion of total water on earth.
According to the Journal article, world-wide about 3 million people die annually from lack of access to safe drinking water. In the United States, studies and concerns over sufficiency and quality of drinking water sources are becoming more and more common.
For example, in New Jersey, testing of private water wells by the Department of Environmental Pollution showed one out of eight wells exceeded safe limits for arsenic, alpha, mercury, nitrates or volatile organic compounds. (The Times, Trenton). The article stated that while some contaminants are naturally occurring, many were the ground water pollution result over over-development.
Along similar lines, the U.S. Geological Survey (USGS) has announced the results of its study of New England bedrock ground water. In addition to naturally occurring contaminants, it found sodium, chlorides, nitrates, methyl-tert-butyl ether and chloroform attributable to human activities. (pubs.usgs.gov/sir/2011/5220/)
Beside contamination of water sources of supply, there also is growing concern over sustainability of drinking water supplies. For example, a new study by USGS in conjunction with Maryland state agencies of an aquifer underlying the state is illustrative. The study found that the aquifer water is over a million years old, but is not recharging as fast as wells are pumping water from it.
The USGS Maryland study found that modern pumping rates have lowered water pressure and changed its chemistry, adversely affecting the aquifer's ability to meet fresh water demands. Further, concern over salt water intrusion has caused utilities to move from shallow aquifers to the deep aquifer, resulting in ground water levels to decline. (springerlink.com/content/j08u34jh46r632v4/?MUD=MP)
In Colorado, it was reported that farmers asked the governor to allow ground water wells to pump irrigation water because irrigation ditches are drying and crops were at risk. The governor declined on the ground that he did not have authority. The governor allegedly stated that pumping could adversely affect downstream flows in the South Platte River and owners of senior water rights downstream. Apparently, studies have shown that pumping of ground water in the area depletes river flows. (Greeley Tribune)
Fresh, safe drinking water is a very limited resource. Policy makers, governmental authorities and politicians should make such water--its availability, conservation, safety, and sustainability--an absolute priority. Human health and safety in this country and in the world is more critical than funding bankrupt solar panel manufacturers.
The Badlands of South Dakota are a hot, arid moon landscape. One of their residents is the short-horned lizard. It loves the Badlands because they are hot and there is little or no water there. When the temperature exceeds 100 degrees, the lizards bury themselves under rocks or in the soil to conserve water. Let is hope we will not evolve backwards into short-horned lizards.
Thursday, June 21, 2012
EPA DOES LANDSCAPING
Most people are aware that USEPA regulates public water supplies under the Safe Drinking Water Act and wastewater disposal under the Clean Water Act. And, we know that EPA also fights bed bugs (see my posting January 16, 2012 "EPA Brings Bed Bugs To Justice"). Now we learn that EPA is in the landscaping business as well.
According to EPA'a June 5, 2012 press release, it has completed clean-up of arsenic-contaminated soil at some 600 homes in a South Minneapolis residential neighborhood (#12-OPA044). According to the press release, the neighborhood is near a location where a pesticide containing arsenic was produced for 30 years starting in 1938. "Contaminated material from an open-air conveyor belt railcar-unloading and product-mixing operation is believed to have been wind-blown into surrounding neighborhoods," according to EPA.
EPA removed over 50,000 tons of soil from the yards of the houses, refilled the yards with clean soil, and replanted the yards with new vegetation and grass.
The cost incurred by EPA for this work was $28,000,000. That works out to be approximately $46,000 per house. Residents of these houses paid nothing, although EPA said that the work "enhances the resale value of these properties."
According to EPA'a June 5, 2012 press release, it has completed clean-up of arsenic-contaminated soil at some 600 homes in a South Minneapolis residential neighborhood (#12-OPA044). According to the press release, the neighborhood is near a location where a pesticide containing arsenic was produced for 30 years starting in 1938. "Contaminated material from an open-air conveyor belt railcar-unloading and product-mixing operation is believed to have been wind-blown into surrounding neighborhoods," according to EPA.
EPA removed over 50,000 tons of soil from the yards of the houses, refilled the yards with clean soil, and replanted the yards with new vegetation and grass.
The cost incurred by EPA for this work was $28,000,000. That works out to be approximately $46,000 per house. Residents of these houses paid nothing, although EPA said that the work "enhances the resale value of these properties."
Thursday, June 14, 2012
GOOD WATER FOR GOLD SEEKERS
I just finished reading "All Roads Lead To Deadwood".* It is a book which details the many trails, and their travelers, on stage coaches and on oxen/mule freight wagons, heading to the gold camps of Deadwood, Black Hills, Dakota Territory, in 1876-90.
Passengers and freight originated from such towns as Cheyenne, Fort Pierre, Medora, Bismarck and Sidney. Gold discoveries were a magnet in the frontier West, and no magnet was stronger at the time than the gold deposits in Deadwood, particularly after Custer's 1874 expedition into the Black Hills.
Travel on these "roads" was hazardous. In Winter, there were blizzards and 40 degree below zero temperatures. In Spring, there were flash floods, rains that turned soil into mush, and swollen rivers to be crossed without benefit of bridges. And, at all times, there was the threat, and reality, of ambush by Indians and road agents.
Nevertheless, stage and freight outfits had concern for the "comforts" of travelers.
Each trail had stations about every 10 to 20 miles, where passengers and freighters would stop for a meal or rest, and horses, oxen and mules would be fed or changed.
While many of these stations offered alcoholic and entertainment opportunities, the book makes it clear that drinking water was a key feature of a successful rest stop operation. It describes many of the stations as "here was a fine well with good water." Stations generally had "good water" except for a few that had water termed "alkaline"-which tended to make travelers sick. One trail had an area of many springs, often simply called "holes". At some locations, a barn or shed would be built over a spring-the cold flowing water had the effect of creating refrigeration within the building.
At one relay station, on Oak Creek, there "was a watering stop with the well built into the bank of the stream. It had excellent water."(P.202) A trail from Sidney, Nebraska, had a stage stop where "the water from Beaver Creek was clear but cathartic caused by the high lithium content. Good water was available at five cents a bucket and three dollars for a wagon load-but the water was only for drinking as the women still made coffee from creek water." (P.80) No doubt, that morning coffee gave quite a wake-up!
For the most part, therefore, drinking water available to these travelers appeared to be simply "good", unless something obvious such as alkalinity made it "not good." There were, of course, no EPA, no Maximum Contaminant Levels, no primary or secondary drinking water standards and no regulations requiring treatment of water.
Interestingly, while the book details many situations when stage drivers and passengers and freighters were killed by Indians, bandits, weather or in fighting, it gives no indication that anyone died from drinking "good water." So, it seems, all who endured the hazards of travel then made it to Deadwood to seek their fortune. In 1890, the railroad reached Deadwood, and overland stages to the Hills road into history.
One may speculate that what made drinking water "good" at these stations was the fact that it came from wells, springs and streams untainted by "civilization." Perhaps it is a sad commentary on "modern" times that drinking water must be subjected to extensive governmental regulation and treatment because of the reality or simply perception that civilization has contaminated sources of supply. On the other hand, maybe I am still back in the 1880s, as I still get all my drinking water from an untreated well, and it is good.
______________________
*(Klock, 1979)
Passengers and freight originated from such towns as Cheyenne, Fort Pierre, Medora, Bismarck and Sidney. Gold discoveries were a magnet in the frontier West, and no magnet was stronger at the time than the gold deposits in Deadwood, particularly after Custer's 1874 expedition into the Black Hills.
Travel on these "roads" was hazardous. In Winter, there were blizzards and 40 degree below zero temperatures. In Spring, there were flash floods, rains that turned soil into mush, and swollen rivers to be crossed without benefit of bridges. And, at all times, there was the threat, and reality, of ambush by Indians and road agents.
Nevertheless, stage and freight outfits had concern for the "comforts" of travelers.
Each trail had stations about every 10 to 20 miles, where passengers and freighters would stop for a meal or rest, and horses, oxen and mules would be fed or changed.
While many of these stations offered alcoholic and entertainment opportunities, the book makes it clear that drinking water was a key feature of a successful rest stop operation. It describes many of the stations as "here was a fine well with good water." Stations generally had "good water" except for a few that had water termed "alkaline"-which tended to make travelers sick. One trail had an area of many springs, often simply called "holes". At some locations, a barn or shed would be built over a spring-the cold flowing water had the effect of creating refrigeration within the building.
At one relay station, on Oak Creek, there "was a watering stop with the well built into the bank of the stream. It had excellent water."(P.202) A trail from Sidney, Nebraska, had a stage stop where "the water from Beaver Creek was clear but cathartic caused by the high lithium content. Good water was available at five cents a bucket and three dollars for a wagon load-but the water was only for drinking as the women still made coffee from creek water." (P.80) No doubt, that morning coffee gave quite a wake-up!
For the most part, therefore, drinking water available to these travelers appeared to be simply "good", unless something obvious such as alkalinity made it "not good." There were, of course, no EPA, no Maximum Contaminant Levels, no primary or secondary drinking water standards and no regulations requiring treatment of water.
Interestingly, while the book details many situations when stage drivers and passengers and freighters were killed by Indians, bandits, weather or in fighting, it gives no indication that anyone died from drinking "good water." So, it seems, all who endured the hazards of travel then made it to Deadwood to seek their fortune. In 1890, the railroad reached Deadwood, and overland stages to the Hills road into history.
One may speculate that what made drinking water "good" at these stations was the fact that it came from wells, springs and streams untainted by "civilization." Perhaps it is a sad commentary on "modern" times that drinking water must be subjected to extensive governmental regulation and treatment because of the reality or simply perception that civilization has contaminated sources of supply. On the other hand, maybe I am still back in the 1880s, as I still get all my drinking water from an untreated well, and it is good.
______________________
*(Klock, 1979)
Monday, June 4, 2012
ROUNDING UP THE NOT USUAL WATER SUSPECTS
In 1935, Klaus Hansen was a pharmacologist at Oslo University. That year, he became the first human to drink something called "heavy" water.
Heavy water was discovered in 1931 in the United States by Harold Urey. What is heavy about this water? Ordinary water, the kind that pours from our faucets, is H20. Heavy water, also known as deuterium oxide, is D2O. Thus, in heavy water, deuterium, a heavy isotope
of hydrogen, replaces the hydrogen of ordinary water. Heavy water is about 10% heavier than ordinary water and has higher freezing and boiling levels.
Apparently, ice cubes made from heavy water will sink to the bottom of your gin and tonic. However, it is not recommended for that purpose. Instead, heavy water commonly is used as a moderator of neutrons produced in nuclear fission reactions in nuclear reactors. As one might guess, there also is something called "semi-heavy" water, where deuterium replaces only one of the hydrogen atoms of ordinary water, thus DHO.
So, what happened to Prof. Hansen after he drank the heavy stuff? Apparently, nothing. He lived past age 75.
Well if ordinary water is not to your taste, and heavy water not your cup of tea, are there other water alternatives? Why not consider "drinking" fruits and vegetables?
For example, there is the obvious choice--watermelon. Typically, watermelon is 92% water. Of course, watermelons tend to weigh a lot, so this could be said to be a form of heavy water. Watermelons are said to contain beneficial nutrients, as well. In fact, watermelons have their own website: watermelon.org. There also has been some suggestion that ingredients in watermelons may have male enhancement benefits. (sciencedaily.com/releases/2008/06/080630165707.htm) There is no indication whether seeded or seedless melon is to be preferred. Of course, eating watermelon heartily could leave one bladder-challenged.
There are other choices for water, as well. Cucumbers and iceberg lettuce comprise 96% water. Tomatoes, zucchini, radishes and celery are 95% water. Eggplant, cabbage, cauliflower, sweet peppers, spinach and strawberries are 92% water. Grapefruit and broccoli are 91% water.
Because of the high water content of such fruits and vegetables, they are said to be good conductors of electricity. I find this information of little use, unless one wishes to wire a house with cucumbers and zucchini.
So, when it is all said and done, the best and most convenient water source probably is the usual suspect--the faucet.
Heavy water was discovered in 1931 in the United States by Harold Urey. What is heavy about this water? Ordinary water, the kind that pours from our faucets, is H20. Heavy water, also known as deuterium oxide, is D2O. Thus, in heavy water, deuterium, a heavy isotope
of hydrogen, replaces the hydrogen of ordinary water. Heavy water is about 10% heavier than ordinary water and has higher freezing and boiling levels.
Apparently, ice cubes made from heavy water will sink to the bottom of your gin and tonic. However, it is not recommended for that purpose. Instead, heavy water commonly is used as a moderator of neutrons produced in nuclear fission reactions in nuclear reactors. As one might guess, there also is something called "semi-heavy" water, where deuterium replaces only one of the hydrogen atoms of ordinary water, thus DHO.
So, what happened to Prof. Hansen after he drank the heavy stuff? Apparently, nothing. He lived past age 75.
Well if ordinary water is not to your taste, and heavy water not your cup of tea, are there other water alternatives? Why not consider "drinking" fruits and vegetables?
For example, there is the obvious choice--watermelon. Typically, watermelon is 92% water. Of course, watermelons tend to weigh a lot, so this could be said to be a form of heavy water. Watermelons are said to contain beneficial nutrients, as well. In fact, watermelons have their own website: watermelon.org. There also has been some suggestion that ingredients in watermelons may have male enhancement benefits. (sciencedaily.com/releases/2008/06/080630165707.htm) There is no indication whether seeded or seedless melon is to be preferred. Of course, eating watermelon heartily could leave one bladder-challenged.
There are other choices for water, as well. Cucumbers and iceberg lettuce comprise 96% water. Tomatoes, zucchini, radishes and celery are 95% water. Eggplant, cabbage, cauliflower, sweet peppers, spinach and strawberries are 92% water. Grapefruit and broccoli are 91% water.
Because of the high water content of such fruits and vegetables, they are said to be good conductors of electricity. I find this information of little use, unless one wishes to wire a house with cucumbers and zucchini.
So, when it is all said and done, the best and most convenient water source probably is the usual suspect--the faucet.
Monday, May 28, 2012
A JOB "WELL" DONE?
A couple of recent stories concerning privately-owned water wells caught my attention. Probably millions of homes and commercial entities receive their water from individual wells of various depths and water qualities.
In May, 2012, the National Ground Water Association (NGWA) issued a caution that owners of private water wells should have their water tested annually for bacteria, nitrates and other contaminants of "local concern". NGWA cited as an example where some bedrock wells in Massachusetts contain naturally-occuring arsenic and uranium.
Also in May of this year, it was reported that the U.S. Geological Survey (USGS) has conducted a study of public, private and monitoring wells for presence of trace elements ("Trace-Elements and Radon in Groundwater Across the United States, 1992-2003"). The USGS research found that approximately 20% of the raw water from the wells contained at least one trace element, such as arsenic, uranium and manganese, at levels considered to be a potential health concern. The study also found that radon exceeded the proposed EPA MCL in 65% of the wells tested. In about 10% of the wells, two or more trace elements were found which exceeded health benchmarks and, in combination, could enhance the toxicity of the water.
Private well testing should be performed by a certified drinking water testing laboratory. Experience teaches that testing for some trace elements and contaminants may be expensive due to the procedures and equipment required, and not all laboratories may be willing to test residential samples. Laboratories will have appropriate procedures for the gathering of samples. Filling a washed mayo or jelly jar will not do it.
It would seem that potential types of contaminants can be locality-based, such as the example referenced in Massachusetts, or iron, manganese and radium found in parts of Illinois, or nitrates found in farming areas.
What if undesired contamination is found in a test and verified by follow-up tests? Generally, some form of treatment of the raw water may be available, such as disinfection for bacteria and reverse osmosis or anion or cation exchange for trace elements.
Well testing, and doing something about adverse results, generally is a personal choice. Not every well owner will be able to boast of a "job well done."
In May, 2012, the National Ground Water Association (NGWA) issued a caution that owners of private water wells should have their water tested annually for bacteria, nitrates and other contaminants of "local concern". NGWA cited as an example where some bedrock wells in Massachusetts contain naturally-occuring arsenic and uranium.
Also in May of this year, it was reported that the U.S. Geological Survey (USGS) has conducted a study of public, private and monitoring wells for presence of trace elements ("Trace-Elements and Radon in Groundwater Across the United States, 1992-2003"). The USGS research found that approximately 20% of the raw water from the wells contained at least one trace element, such as arsenic, uranium and manganese, at levels considered to be a potential health concern. The study also found that radon exceeded the proposed EPA MCL in 65% of the wells tested. In about 10% of the wells, two or more trace elements were found which exceeded health benchmarks and, in combination, could enhance the toxicity of the water.
Private well testing should be performed by a certified drinking water testing laboratory. Experience teaches that testing for some trace elements and contaminants may be expensive due to the procedures and equipment required, and not all laboratories may be willing to test residential samples. Laboratories will have appropriate procedures for the gathering of samples. Filling a washed mayo or jelly jar will not do it.
It would seem that potential types of contaminants can be locality-based, such as the example referenced in Massachusetts, or iron, manganese and radium found in parts of Illinois, or nitrates found in farming areas.
What if undesired contamination is found in a test and verified by follow-up tests? Generally, some form of treatment of the raw water may be available, such as disinfection for bacteria and reverse osmosis or anion or cation exchange for trace elements.
Well testing, and doing something about adverse results, generally is a personal choice. Not every well owner will be able to boast of a "job well done."
Tuesday, May 22, 2012
CHIPS OFF THE OLD BLOCK
Recently, I read that a city in Washington has paved sidewalks with a concrete mix containing crushed toilets. The city calls the mix "Poticrete." The toilets were repurposed from retrofitted residential housing authority buildings.*
The story provoked my thinking about toilets. For example, why are almost all toilets white? Most cars today are said to be white because they are more readily seen. Dinnerware frequently is white to better show off food. So, why are toilets white? Of course, in the 60s and 70s, toilets often came in colors, such as blue, yellow and brown-what were they intended to show?
Toilets can differ in ways other than color. An outhouse has only a cutout in a board, crawling with spiders and other varmints. In Europe, they seem to have devices where one cannot find the flush handle. In Russia, the toilet can be only a hole in the floor surrounded by dazzling mosaic tiles. In the United States, modern toilets seem more like hungry shop vacs.
Something I have pondered for years: why are rooms with toilets called "restrooms?" Does anyone actually go to a restroom to rest? I did work one summer as a student for a company where some employees often went to a restroom to sleep in a stall to avoid working. Increased incidents of hemorrhoids were reported.
In Europe, restrooms often are called "water closets." But, they are not closets at all, and toilets are rarely found in closets. There was one exception, We once stayed in an apartment in a central European city, where the toilet was in a tiny closet--a fact which I discovered when I inadvertently opened the closet door to hang a coat on the nose of the occupant.
Why are toilets called toilets? Why are they sometimes called "stools?" Webster's dictionary provides a definition of "stool" as "a seat used as a symbol of office or authority." There may be a political meaning somewhere in that.
Another perplexing thing is toilet water. We flush toilets to dispose of toilet water. But when we call it "eau de toilette" we pour it on our bodies.
Old toilets may become remnants of civilization's history. Long in the future, archaeologists may be studying pieces of concrete with chips of toilet--like fossils of early, extinct life--trying to figure out what devices called toilets were. Maybe they were some sort of calendars, or storage vessels or cooking implements, they may speculate. Or, maybe they simply were the thrones of great leaders.
___________________________________________________________
*(Water Environment & Technology magazine, May, 2012, P.31)
The story provoked my thinking about toilets. For example, why are almost all toilets white? Most cars today are said to be white because they are more readily seen. Dinnerware frequently is white to better show off food. So, why are toilets white? Of course, in the 60s and 70s, toilets often came in colors, such as blue, yellow and brown-what were they intended to show?
Toilets can differ in ways other than color. An outhouse has only a cutout in a board, crawling with spiders and other varmints. In Europe, they seem to have devices where one cannot find the flush handle. In Russia, the toilet can be only a hole in the floor surrounded by dazzling mosaic tiles. In the United States, modern toilets seem more like hungry shop vacs.
Something I have pondered for years: why are rooms with toilets called "restrooms?" Does anyone actually go to a restroom to rest? I did work one summer as a student for a company where some employees often went to a restroom to sleep in a stall to avoid working. Increased incidents of hemorrhoids were reported.
In Europe, restrooms often are called "water closets." But, they are not closets at all, and toilets are rarely found in closets. There was one exception, We once stayed in an apartment in a central European city, where the toilet was in a tiny closet--a fact which I discovered when I inadvertently opened the closet door to hang a coat on the nose of the occupant.
Why are toilets called toilets? Why are they sometimes called "stools?" Webster's dictionary provides a definition of "stool" as "a seat used as a symbol of office or authority." There may be a political meaning somewhere in that.
Another perplexing thing is toilet water. We flush toilets to dispose of toilet water. But when we call it "eau de toilette" we pour it on our bodies.
Old toilets may become remnants of civilization's history. Long in the future, archaeologists may be studying pieces of concrete with chips of toilet--like fossils of early, extinct life--trying to figure out what devices called toilets were. Maybe they were some sort of calendars, or storage vessels or cooking implements, they may speculate. Or, maybe they simply were the thrones of great leaders.
___________________________________________________________
*(Water Environment & Technology magazine, May, 2012, P.31)
Monday, May 14, 2012
IS TALK MORE VALUED THAN WATER?
Last week, there was a news report that more people in the world have cell phones than have running water or electricity. Since last week also was "National Drinking Water Week", I got to thinking about this situation.
Does it mean that people believe communication is more important than drinking water? Without electricity, how do people recharge their cell phone batteries? Are people more willing to accept charges for cell phones than costs to obtain or maintain water?
Another report announced that in 2010, there were 670 million cell phones in India, but only 366 million people had access to private toilets, leaving 665 million people without such access.
However, another report states that approximately 880,000 British every year have accidents involving cell phones falling into toilets. Apparently, the problem does not dampen usage, although it may increase sales of new devices. Also apparently, social media has replaced newspapers and catalogs as bathroom procedure. Ever wonder where the next tweet or e-mail you receive originates?
Maybe, communication and water can be combined. I found one provider that makes available to cell phone users the download of a running water ringtone. Calls then would make quite a splash. In my freshman college year, my room was at the top of a five story walk-up. We communicated to residents on the first floor by tapping a form of morse code on the hot water radiator pipes--much to the aggravation of the second, third and fourth floors.
My mind wandered further. I pictured a person having no running water, but having a need to both communicate and to seek personal relief, going to an outhouse with a cell phone. What happens if the cell phone accidentally slips from fingers and falls into the abyss? Does one attempt to retrieve it? What happens if the cell phone then rings with that delightful running water ringtone? Would that constitute as a call of nature?
Does it mean that people believe communication is more important than drinking water? Without electricity, how do people recharge their cell phone batteries? Are people more willing to accept charges for cell phones than costs to obtain or maintain water?
Another report announced that in 2010, there were 670 million cell phones in India, but only 366 million people had access to private toilets, leaving 665 million people without such access.
However, another report states that approximately 880,000 British every year have accidents involving cell phones falling into toilets. Apparently, the problem does not dampen usage, although it may increase sales of new devices. Also apparently, social media has replaced newspapers and catalogs as bathroom procedure. Ever wonder where the next tweet or e-mail you receive originates?
Maybe, communication and water can be combined. I found one provider that makes available to cell phone users the download of a running water ringtone. Calls then would make quite a splash. In my freshman college year, my room was at the top of a five story walk-up. We communicated to residents on the first floor by tapping a form of morse code on the hot water radiator pipes--much to the aggravation of the second, third and fourth floors.
My mind wandered further. I pictured a person having no running water, but having a need to both communicate and to seek personal relief, going to an outhouse with a cell phone. What happens if the cell phone accidentally slips from fingers and falls into the abyss? Does one attempt to retrieve it? What happens if the cell phone then rings with that delightful running water ringtone? Would that constitute as a call of nature?
Monday, May 7, 2012
IS "VALUE" OF WATER RELEVANT TO RATES?
Recently, I read an article which asserts that whether a water utility charges sufficient rates depends upon the perceived "value" of the water service it provides. The article submits that the ability to raise rates to provide revenue requirements for infrastructure improvements depends upon customer acknowledgement of the "value" of water. It added that the starting point for water utilities to achieve approval for rate increases is for utilities and their customers to understand the full "value" of water, and the need for customers to pay for this value.
However, contrary to these assertions, the so-called "value" of water has nothing to do with well-established rate-maaking principles. As enunciated in many court decisions and statutes, and echoed in the American Water Works Association rate-making manuals, the only proper basis for setting reasonable rates for water service is cost of service.
Reliance on the "value" of water service to justify rates is misguided and can deliver a wrong message to customers. First, "value" in this setting is a subjective term, and can mean different things to different water users. Indeed, as I wrote in my previous posting, who remembers, and therefore values, the water that flows from a faucet? People appear to value water only after it stops flowing.
Second, setting of rates based on recovery of costs of service necessarily requires objective numbers. Subjective opinion of "value" is incapable of quantification and does not advance establishment of revenue requirements.
Third, that water is essential for life, public health and safety, and is useful for production of food and products, is not in dispute. However, that rates must be increased from time to time to fund operating expenses, depreciation, debt service and reserves--all of which are costs of service--also is not in dispute.
Customers will understand that rates for water service must recover the costs to provide that service, with adequate communication to those customers. There is no reason to interject amorphous concepts of "value" in the rate-making equation to confuse both utilities and their customers. Instead, utilities should perform frequent reviews of the adequacy of their rates, and have the courage to increase rates when needed instead of trying to appease customers by deferring needed maintenance or infrastructure upgrades to avoid rate adjustments.
The fact is that the "value" of safe and adequate water service depends upon ongoing recovery of all costs of service, not upon philosophical verbiage about "value."
However, contrary to these assertions, the so-called "value" of water has nothing to do with well-established rate-maaking principles. As enunciated in many court decisions and statutes, and echoed in the American Water Works Association rate-making manuals, the only proper basis for setting reasonable rates for water service is cost of service.
Reliance on the "value" of water service to justify rates is misguided and can deliver a wrong message to customers. First, "value" in this setting is a subjective term, and can mean different things to different water users. Indeed, as I wrote in my previous posting, who remembers, and therefore values, the water that flows from a faucet? People appear to value water only after it stops flowing.
Second, setting of rates based on recovery of costs of service necessarily requires objective numbers. Subjective opinion of "value" is incapable of quantification and does not advance establishment of revenue requirements.
Third, that water is essential for life, public health and safety, and is useful for production of food and products, is not in dispute. However, that rates must be increased from time to time to fund operating expenses, depreciation, debt service and reserves--all of which are costs of service--also is not in dispute.
Customers will understand that rates for water service must recover the costs to provide that service, with adequate communication to those customers. There is no reason to interject amorphous concepts of "value" in the rate-making equation to confuse both utilities and their customers. Instead, utilities should perform frequent reviews of the adequacy of their rates, and have the courage to increase rates when needed instead of trying to appease customers by deferring needed maintenance or infrastructure upgrades to avoid rate adjustments.
The fact is that the "value" of safe and adequate water service depends upon ongoing recovery of all costs of service, not upon philosophical verbiage about "value."
Monday, April 30, 2012
WHO REMEMBERS THE WATER?
We are told that water is valuable: that water is essential for all life--human, animal and vegetation; that water is essential for public health; that water is essential for public safety and fire protection; that water is essential for cleanliness; and that water is essential for production of food, goods and services.
But, who remembers the water that we use? Who remembers the water in our shower this morning or any of yesterdays' mornings? Who remembers the water that is flushed down our toilets? Who remembers the water that made our coffee and tea during any day?
Who remembers the water we sprayed on the garden or splashed down the driveway when we washed our car? Who remembers our first glass of water or any glass of water, for that matter?
Who remembers the water churning in our washing machine or in our dishwasher? Who remembers the water that cleaned our floor and then was washed down the drain? Who remembers the water that was used to make soup or to wash the vegetables that went into the soup?
So, who remembers water? If water really is valuable, how come we do not remember using it, yet alone protecting it like our other valuables? Maybe we will not value water, and remember it, until it is disappears.
Monday, April 23, 2012
INSURANCE POLLUTION EXCLUSION APPLIED TO WATER SUPPLY CONTAMINATION
Certain residents sued their village and village officials seeking damages for alleged contamination of water furnished by the municipal water system. The village continued to use for many years a well contaminated by perc, a dry cleaning solvent, which had migrated into the soil and ground water. The state also sued the village to compel remediation.
The insurer for the village sued in federal court for a declaration that the insurer had no duty to defend the suits against the village or to indemnify the village if the residents and the state should prevail in their suits.
The insurance policies at issue were public entity general liability policies issued to municipalities. They contained a pollution exclusion of the same kind found in commercial general liability policies. The pollution exclusion excluded from coverage bodily injuries, property damage and personal injuries arising from the discharge and dispersal of pollutants and also excluded expenses arising from orders to clean up or respond to the effects of pollution.
THe federal Seventh Court of Appeals affirmed the District Court holding that the pollution exclusion applied to relieve the insurers from any responsibility for the suits by the residents and the state against the village. The Court stated: "There is no doubt that perc is a 'contaminant' within the meaning of the policies; and the tort plaintiffs are complaining about its 'dispersal' by the Village from the contaminated well to their homes via the system of water mains that connects the well to the homes."
THe Court explained that a prime rationale for the pollution exclusion relates to the impossibility of adjusting insurance premiums for the greater risk of loss potential from high risk insurance customers. Thus, the exclusion forces high risk potential polluters to self identify by buying pollution coverage. (Scottsdale Indemnity Co. and National Casualty Co. v. Village of Crestwood, US Ct App, 7th Cir., Nos. 11-2385, 11-2556,11-2583, March 12, 2012)
The lesson of this decision for a water utility, of course, is twofold: first, read and understand the utility's general liability policy, including the pollution exclusion; and second, purchase a pollution coverage rider sufficient to cover potential contamination issues.
The insurer for the village sued in federal court for a declaration that the insurer had no duty to defend the suits against the village or to indemnify the village if the residents and the state should prevail in their suits.
The insurance policies at issue were public entity general liability policies issued to municipalities. They contained a pollution exclusion of the same kind found in commercial general liability policies. The pollution exclusion excluded from coverage bodily injuries, property damage and personal injuries arising from the discharge and dispersal of pollutants and also excluded expenses arising from orders to clean up or respond to the effects of pollution.
THe federal Seventh Court of Appeals affirmed the District Court holding that the pollution exclusion applied to relieve the insurers from any responsibility for the suits by the residents and the state against the village. The Court stated: "There is no doubt that perc is a 'contaminant' within the meaning of the policies; and the tort plaintiffs are complaining about its 'dispersal' by the Village from the contaminated well to their homes via the system of water mains that connects the well to the homes."
THe Court explained that a prime rationale for the pollution exclusion relates to the impossibility of adjusting insurance premiums for the greater risk of loss potential from high risk insurance customers. Thus, the exclusion forces high risk potential polluters to self identify by buying pollution coverage. (Scottsdale Indemnity Co. and National Casualty Co. v. Village of Crestwood, US Ct App, 7th Cir., Nos. 11-2385, 11-2556,11-2583, March 12, 2012)
The lesson of this decision for a water utility, of course, is twofold: first, read and understand the utility's general liability policy, including the pollution exclusion; and second, purchase a pollution coverage rider sufficient to cover potential contamination issues.
Sunday, April 15, 2012
DOES EPA HAVE JURISDICTION OVER YOUR BIRDBATH?
With the media frenzy during the recent Supreme Court oral argument in the "Obamacare" case, an important Supreme Court decision issued also in March largely was ignored.
A couple owned a 2/3 acre residential lot in Idaho, near a lake but separated from it by several lots containing permanent structures. To prepare their lot for construction of a house, they caused a portion of the lot to be filled with dirt and rock.
Months later, the couple received a compliance order from EPA. The order found that the lot contained wetlands adjacent to the lake, that the lake is a "navigable water," that the couple discharged fill material into wetlands on the site, and that they caused fill material to enter into waters of the United States and thereby discharged pollutants from a point source-a violation of the federal Clean Water Act. The compliance order demanded restoration of the lot.
The Clean Water Act provides for a civil penalty of up to $37,500 per day of violation. If a party fails to comply with a compliance order, the penalty increases to up to a total of $75,000 per day of non-compliance.
The couple believed that their lot is not subject to the Clean Water Act. However, their request for a hearing before EPA was denied. Accordingly, the couple filed suit in federal District Court for judicial review under the federal Administrative Procedure Act claiming that the compliance order was arbitrary and capricious and denied due process. The District Court dismissed the complaint and the Court of Appeals affirmed, concluding that the Clean Water Act precludes judicial review of EPA compliance orders. The Supreme Court then agreed to hear the case.
Before the Supreme Court, EPA argued that there can be no judicial review of its compliance orders. The Supreme Court unanimously disagreed, holding that the compliance order in this case is a final agency action for which there is no adequate remedy other than review under the Administrative Procedure Act, and the Clean Water Act does not preclude such review.
Justice Scalia wrote:"there is no reason to think that the Clean Water Act was uniquely designed to enable the strong-arming of
regulated parties into 'voluntary compliance' without the opportunity for judicial review-even judicial review of the question whether the regulated party is within EPA's jurisdiction."
In a concurring opinion, Justice Alito was blunt: "The position taken in this case by the Federal Government-a position that the Court now squarely rejects-would have put the property rights of ordinary Americans entirely at the mercy of Environmental Protection Agency (EPA) employees."
The appeal before the Supreme Court involved only the right to judicial review of an agency order, not the shadowy question whether the couple's lot in fact is a jurisdictional wetland. That question presumably will be addressed by the remand to the lower courts and ultimately may wind up in the Supreme Court again. However, the Court's decision allowing judicial review of the compliance order suggests its response to regulatory orders and mandates imposed without due process protections. (Sackett v. Environmental Protection Agency, Supreme Court No. 10-1062, March 21, 2012)
So. could EPA have jurisdiction over your birdbath? The question may not be just for the birds.
A couple owned a 2/3 acre residential lot in Idaho, near a lake but separated from it by several lots containing permanent structures. To prepare their lot for construction of a house, they caused a portion of the lot to be filled with dirt and rock.
Months later, the couple received a compliance order from EPA. The order found that the lot contained wetlands adjacent to the lake, that the lake is a "navigable water," that the couple discharged fill material into wetlands on the site, and that they caused fill material to enter into waters of the United States and thereby discharged pollutants from a point source-a violation of the federal Clean Water Act. The compliance order demanded restoration of the lot.
The Clean Water Act provides for a civil penalty of up to $37,500 per day of violation. If a party fails to comply with a compliance order, the penalty increases to up to a total of $75,000 per day of non-compliance.
The couple believed that their lot is not subject to the Clean Water Act. However, their request for a hearing before EPA was denied. Accordingly, the couple filed suit in federal District Court for judicial review under the federal Administrative Procedure Act claiming that the compliance order was arbitrary and capricious and denied due process. The District Court dismissed the complaint and the Court of Appeals affirmed, concluding that the Clean Water Act precludes judicial review of EPA compliance orders. The Supreme Court then agreed to hear the case.
Before the Supreme Court, EPA argued that there can be no judicial review of its compliance orders. The Supreme Court unanimously disagreed, holding that the compliance order in this case is a final agency action for which there is no adequate remedy other than review under the Administrative Procedure Act, and the Clean Water Act does not preclude such review.
Justice Scalia wrote:"there is no reason to think that the Clean Water Act was uniquely designed to enable the strong-arming of
regulated parties into 'voluntary compliance' without the opportunity for judicial review-even judicial review of the question whether the regulated party is within EPA's jurisdiction."
In a concurring opinion, Justice Alito was blunt: "The position taken in this case by the Federal Government-a position that the Court now squarely rejects-would have put the property rights of ordinary Americans entirely at the mercy of Environmental Protection Agency (EPA) employees."
The appeal before the Supreme Court involved only the right to judicial review of an agency order, not the shadowy question whether the couple's lot in fact is a jurisdictional wetland. That question presumably will be addressed by the remand to the lower courts and ultimately may wind up in the Supreme Court again. However, the Court's decision allowing judicial review of the compliance order suggests its response to regulatory orders and mandates imposed without due process protections. (Sackett v. Environmental Protection Agency, Supreme Court No. 10-1062, March 21, 2012)
So. could EPA have jurisdiction over your birdbath? The question may not be just for the birds.
Wednesday, April 4, 2012
HOPPING DOWN THE EASTER BUNNY TRIAL
Two men, a grade school administrator and his friend, were driving around western New York during the Easter school break. One morning, they stopped for breakfast at a local cafe in a small town. There, they saw a young girl dressed in her Easter finery.
The men decided to treat the girl by getting their Easter bunny mask from their van. So, one of the men retrieved the mask, put the bunny head on and waved at the girl through a front window of the cafe. Then, he removed the mask, put it back in the van and resumed his breakfast in the cafe.
The rabbit head was a full size, 1 1/2 to 2 foot high paper-mache mask which covered a person's entire head. It had pipe-cleaner whiskers, large eyelets and enormous pink ears.
Shortly, a local bank employee called the sheriff's office to report that a customer had come into the bank with her granddaughter and said that they had just seen the Easter bunny outside the bank. The bank employee also told the sheriff that another person came into the bank saying that a man had got out of a van wearing a rabbit head and had looked into the bank's windows.
Believing the two men were bank robbers, a sheriff's officer then issued an all points bulletin (APB) to pick up and hold the two men, with a warning that they were armed and dangerous. In response to the APB, the two men were arrested at gunpoint by state police in a nearby town, hand cuffed and transported back to the sheriff's office.
After being held and questioned for almost 3 hours, the men were released, and no charges were filed. It seems that, as the men traveled into each county, they would stop and take a photo of one of them wearing the rabbit head next to the county road sign. They also had a seven foot stuffed dog in the van for the same purpose.
Subsequently, the men filed a civil rights action in federal court claiming that they were arrested without probable cause, in violation of their constitutional rights. The court found that there had been no probable cause for their arrest. (Wagner v. County of Cattaraugus, 866 F. Supp. 709, W.D.N.Y. 1994)
So, if you see the Easter bunny waving at your window, it may not be a hare raising experience after all. But if it were, the Easter bunny may well find a hare in legal soup.
The men decided to treat the girl by getting their Easter bunny mask from their van. So, one of the men retrieved the mask, put the bunny head on and waved at the girl through a front window of the cafe. Then, he removed the mask, put it back in the van and resumed his breakfast in the cafe.
The rabbit head was a full size, 1 1/2 to 2 foot high paper-mache mask which covered a person's entire head. It had pipe-cleaner whiskers, large eyelets and enormous pink ears.
Shortly, a local bank employee called the sheriff's office to report that a customer had come into the bank with her granddaughter and said that they had just seen the Easter bunny outside the bank. The bank employee also told the sheriff that another person came into the bank saying that a man had got out of a van wearing a rabbit head and had looked into the bank's windows.
Believing the two men were bank robbers, a sheriff's officer then issued an all points bulletin (APB) to pick up and hold the two men, with a warning that they were armed and dangerous. In response to the APB, the two men were arrested at gunpoint by state police in a nearby town, hand cuffed and transported back to the sheriff's office.
After being held and questioned for almost 3 hours, the men were released, and no charges were filed. It seems that, as the men traveled into each county, they would stop and take a photo of one of them wearing the rabbit head next to the county road sign. They also had a seven foot stuffed dog in the van for the same purpose.
Subsequently, the men filed a civil rights action in federal court claiming that they were arrested without probable cause, in violation of their constitutional rights. The court found that there had been no probable cause for their arrest. (Wagner v. County of Cattaraugus, 866 F. Supp. 709, W.D.N.Y. 1994)
So, if you see the Easter bunny waving at your window, it may not be a hare raising experience after all. But if it were, the Easter bunny may well find a hare in legal soup.
Saturday, March 31, 2012
DEALING WITH NITRATES IN DRINKING WATER SOURCES
In the United States, strict limits have been adopted on the permissible level of nitrates in finished water provided by public water supplies. These limits were developed particularly out of concern for infants who may be vulnerable to higher nitrate levels in drinking water.
Nitrates in ground water and surface water tend to be associated with agricultural areas where chemical fertilizers and animal manure appear to be the primary cause.
In March, 2012 the University of California at Davis released a study which allegedly found that nitrate contamination of ground water is pervasive in certain agricultural communities, where some wells have exceeded the standard. According to the study, nitrate leaching from agricultural land has caused 96% of current ground water contamination.
Nitrate impacts on surface waters such as rivers can occur from storm water farm run-off and from farm drain tiles, particularly in significant Spring rain events.
To deal with elevated nitrate levels in source waters, utilities may face complex challenges and resulting costs...costs that will have to be recovered from their customers. Installing effective treatment facilities particularly may be expensive for smaller water systems. Seeking alternative ground water supplies may not be feasible if nitrates have spread in an aquifer.
One midwest water utility which uses river water as its source of supply found that nitrate levels in the river exceeded the standard primarily only during Spring rain periods. So, it acquired an nearby empty gravel quarry to store river water during low nitrate periods, which then is blended with higher nitrate Spring river water to achieve compliance with the standard.
The same midwest utility also became proactive to work with the farm community to educate as to the impacts of over-fertilization of crop land. Through such an organizing effort, farmers began to understand not only such impacts but also the potential savings from reducing the types or quantities of fertilizer applications.
Along the same lines, a California trade group representing fertilizer manufacturers and retailers has stated that the California Department of Food and Agriculture has developed "best management practices" to mitigate nitrate contribution from fertilizer by optimizing fertilizer usage, matching nutrient supply with crop requirements to minimize nutrient losses. Such practices now may include split application of fertilizer based soil and plant testing and use of sensors for more precise nitrogen management.
So, it appears that parties concerned with both potential causes and effects of nitrate levels in drinking water sources are trying to deal with the issue.
Nitrates in ground water and surface water tend to be associated with agricultural areas where chemical fertilizers and animal manure appear to be the primary cause.
In March, 2012 the University of California at Davis released a study which allegedly found that nitrate contamination of ground water is pervasive in certain agricultural communities, where some wells have exceeded the standard. According to the study, nitrate leaching from agricultural land has caused 96% of current ground water contamination.
Nitrate impacts on surface waters such as rivers can occur from storm water farm run-off and from farm drain tiles, particularly in significant Spring rain events.
To deal with elevated nitrate levels in source waters, utilities may face complex challenges and resulting costs...costs that will have to be recovered from their customers. Installing effective treatment facilities particularly may be expensive for smaller water systems. Seeking alternative ground water supplies may not be feasible if nitrates have spread in an aquifer.
One midwest water utility which uses river water as its source of supply found that nitrate levels in the river exceeded the standard primarily only during Spring rain periods. So, it acquired an nearby empty gravel quarry to store river water during low nitrate periods, which then is blended with higher nitrate Spring river water to achieve compliance with the standard.
The same midwest utility also became proactive to work with the farm community to educate as to the impacts of over-fertilization of crop land. Through such an organizing effort, farmers began to understand not only such impacts but also the potential savings from reducing the types or quantities of fertilizer applications.
Along the same lines, a California trade group representing fertilizer manufacturers and retailers has stated that the California Department of Food and Agriculture has developed "best management practices" to mitigate nitrate contribution from fertilizer by optimizing fertilizer usage, matching nutrient supply with crop requirements to minimize nutrient losses. Such practices now may include split application of fertilizer based soil and plant testing and use of sensors for more precise nitrogen management.
So, it appears that parties concerned with both potential causes and effects of nitrate levels in drinking water sources are trying to deal with the issue.
Friday, March 23, 2012
CRUISING DOWN THE ALIMENTARY CANAL
Ater reading the story, I did not know if I had entered the twilight zone or if I had become a passenger with Captain Kirk on the Starship Enterprise.
The story told of a new project in England to develop a stand alone device within a house that will turn human waste into drinking water and hydrogen energy to generate electricity. If the development is successful, researchers believe the device could be useful in both developing and developed countries. Indeed, one researcher is quoted as saying: "In the future, we may see homes in the UK generating their own clean water, energy and fertilizer simply by doing what comes naturally to us all once or twice day."
One can speculate that there may be several issues to be resolved. For example, how will the system work in the event that occupants of a house suffer from constipation? Will the residents thirst for water or sit in the dark, much as when a windmill stops churning without wind? Will dog walkers eagerly scoop and run home to throw collections into the hopper? Will water, wastewater and electric utilities close their doors for want of users?
I am still trying to get used to the new types of toilets dictated by the federal government that flush like an erupting volcano. I wonder if the federal government also will exert jurisdiction over these new devices and their source material. Regardless, maybe those ancient alchemists had the right idea after all...only the wrong stuff.
The story told of a new project in England to develop a stand alone device within a house that will turn human waste into drinking water and hydrogen energy to generate electricity. If the development is successful, researchers believe the device could be useful in both developing and developed countries. Indeed, one researcher is quoted as saying: "In the future, we may see homes in the UK generating their own clean water, energy and fertilizer simply by doing what comes naturally to us all once or twice day."
One can speculate that there may be several issues to be resolved. For example, how will the system work in the event that occupants of a house suffer from constipation? Will the residents thirst for water or sit in the dark, much as when a windmill stops churning without wind? Will dog walkers eagerly scoop and run home to throw collections into the hopper? Will water, wastewater and electric utilities close their doors for want of users?
I am still trying to get used to the new types of toilets dictated by the federal government that flush like an erupting volcano. I wonder if the federal government also will exert jurisdiction over these new devices and their source material. Regardless, maybe those ancient alchemists had the right idea after all...only the wrong stuff.
Friday, March 16, 2012
ON WISCONSIN...OFF DISINFECTION
As discussed in a prior post, one of the most important advances in public water supply was implementation of treatment with chlorination. Adopted by utilities in early 20th century, disinfection of water ended typhoid fever as a serious concern in this country. (See "Safe Drinking Water: A Beginning", Water Lawg, January 12, 2010)
So, I was surprised to learn recently that some 60 communities in Wisconsin allegedly do not disinfect their public water supply, whether by chlorination or by any alternative methodology. Apparently, the state legislature repealed any disinfection requirement, asserting that it was an unnecessary financial and administrative burden.
Pursuant to the federal Safe Drinking Water Act, USEPA has adopted Maximum Contaminant Levels (MCLs) and Maximum Contaminant Level Goals (MCLGs) for several categories of microorganisms. Public Water Supplies must comply with MCLs for all water delivered to users. USEPA states that "there is convincing evidence that addition of a disinfectant is necessary for control of microbial contaminants." (See water.epa.gov/drink/contaminants/index.cfm)
In apparent contrast to Wisconsin, Illinois regulations require disinfection treatment with chlorine or other protocol approved by the Illinois Environmental Protection Agency. Illinois also requires chlorination before finished water enters the distribution system sufficient to maintain a specified chlorine residual in the distribution mains.
Bacteria and viruses can enter a public water supply from either surface water supplies or ground water wells. They also can enter through defects in mains or even as a result of unprotected back flows. Regardless whether disinfection is a regulatory requirement, a public water supply still must comply with MCLs for bacteria, viruses and other contaminants. A utility electing to not provide disinfection treatment may also want assure that it has adequate insurance coverage.
So, I was surprised to learn recently that some 60 communities in Wisconsin allegedly do not disinfect their public water supply, whether by chlorination or by any alternative methodology. Apparently, the state legislature repealed any disinfection requirement, asserting that it was an unnecessary financial and administrative burden.
Pursuant to the federal Safe Drinking Water Act, USEPA has adopted Maximum Contaminant Levels (MCLs) and Maximum Contaminant Level Goals (MCLGs) for several categories of microorganisms. Public Water Supplies must comply with MCLs for all water delivered to users. USEPA states that "there is convincing evidence that addition of a disinfectant is necessary for control of microbial contaminants." (See water.epa.gov/drink/contaminants/index.cfm)
In apparent contrast to Wisconsin, Illinois regulations require disinfection treatment with chlorine or other protocol approved by the Illinois Environmental Protection Agency. Illinois also requires chlorination before finished water enters the distribution system sufficient to maintain a specified chlorine residual in the distribution mains.
Bacteria and viruses can enter a public water supply from either surface water supplies or ground water wells. They also can enter through defects in mains or even as a result of unprotected back flows. Regardless whether disinfection is a regulatory requirement, a public water supply still must comply with MCLs for bacteria, viruses and other contaminants. A utility electing to not provide disinfection treatment may also want assure that it has adequate insurance coverage.
Friday, March 9, 2012
WHO OWNS WATER?
A recent decision of the Texas Supreme Court is thought provoking. In that state, withdrawal of ground water is subject to permitting regulation by an Aquifer Authority. Certain landowners applied for a permit to withdraw from wells a quantity of ground water to be used for irrigation purposes. The Authority denied a permit based upon historic use, and the landowners went to court.
On appeal from lower courts, the Supreme Court first reviewed the law regarding ownership of oil and gas in place under a landowner's property:
"in our state the landowner is regarded as having absolute title in severalty to the oil and gas in place beneath his land. The only qualification of that rule of ownership is that it must be considered in connection with the law of capture and is subject to police regulations. The oil and gas beneath the soil are considered a part of the realty. Each owner of land owns separately, distinctly and exclusively all the oil and gas under his land and is accorded the usual remedies against trespassers who appropriate the minerals or destroy their market value."
The Court then held that the law regarding ownership of oil and gas "states the common law regarding the ownership of ground water in place."
Having determined that the landowners own the ground water below their land, the Court then addressed the question whether denial of the requested permit to withdraw that water was a violation of the Texas constitution. The Court decided that landowners have a constitutionally compensable interest in groundwater in place. "We decide in this case whether land ownership includes an interest in ground water in place that cannot be taken for public use without compensation guaranteed by article I, section 17 (a) of the Texas Constitution. We hold that it does."
The Authority asserted "that if its ground water regulation can result in a compensable taking, the consequences will be nothing short of disastrous." It expressed concern that the financial burden of taking claims could make regulation impossible. The Court responded: "We cannot know, of course, the extent to which the Authority's fears will yet materialize, but the burden of the Taking Clause on government is no reason to excuse its applicability." (Edwards Aquifer Authority and the State of Texas v. Burrell Day and Joel McDaniel, Texas Supreme Court, No. 08-0964, 2012)
One should bear in mind that some states may not accept the notion that ground water in place is owned by the land owner. Instead, some states may have adopted the concept that a land owner simply has reasonable use of such ground water, again subject to regulation. Also, another court might decide that denial of a permit would be arbitrary or contrary to the manifest weight of the evidence, without reaching a constitutional issue. When a regulation may violate a constitutional right can be a complicated issue and will be discussed more generally in a future post.
On appeal from lower courts, the Supreme Court first reviewed the law regarding ownership of oil and gas in place under a landowner's property:
"in our state the landowner is regarded as having absolute title in severalty to the oil and gas in place beneath his land. The only qualification of that rule of ownership is that it must be considered in connection with the law of capture and is subject to police regulations. The oil and gas beneath the soil are considered a part of the realty. Each owner of land owns separately, distinctly and exclusively all the oil and gas under his land and is accorded the usual remedies against trespassers who appropriate the minerals or destroy their market value."
The Court then held that the law regarding ownership of oil and gas "states the common law regarding the ownership of ground water in place."
Having determined that the landowners own the ground water below their land, the Court then addressed the question whether denial of the requested permit to withdraw that water was a violation of the Texas constitution. The Court decided that landowners have a constitutionally compensable interest in groundwater in place. "We decide in this case whether land ownership includes an interest in ground water in place that cannot be taken for public use without compensation guaranteed by article I, section 17 (a) of the Texas Constitution. We hold that it does."
The Authority asserted "that if its ground water regulation can result in a compensable taking, the consequences will be nothing short of disastrous." It expressed concern that the financial burden of taking claims could make regulation impossible. The Court responded: "We cannot know, of course, the extent to which the Authority's fears will yet materialize, but the burden of the Taking Clause on government is no reason to excuse its applicability." (Edwards Aquifer Authority and the State of Texas v. Burrell Day and Joel McDaniel, Texas Supreme Court, No. 08-0964, 2012)
One should bear in mind that some states may not accept the notion that ground water in place is owned by the land owner. Instead, some states may have adopted the concept that a land owner simply has reasonable use of such ground water, again subject to regulation. Also, another court might decide that denial of a permit would be arbitrary or contrary to the manifest weight of the evidence, without reaching a constitutional issue. When a regulation may violate a constitutional right can be a complicated issue and will be discussed more generally in a future post.
Wednesday, February 29, 2012
WHEN ARE CONNECTION CHARGES APPROPRIATE?
Water and wastewater utilities often charge new customers a fee for connection to their systems, commonly called a connection or tap-on fee. Historically, some have asserted that such fees are unreasonable extra charges unrelated to costs of service. Are they correct?
The propriety of connection fees imposed by regulated utilities generally is determined by the particular regulatory commission. However, the reasonableness of tap-on fees imposed by unregulated municipal-owned utilities is for the courts.
The basic rationale for a legitimate connection fee is to avoid subsidization of service to new customers by current customers; and to shift costs and risks incurred to serve new customers to those who benefit or cause risks.
So, for example, a water utility may construct a main extension to serve potential customers in a proposed subdivision. It may then charge a connection fee to new customers as they attach so as to recover a portion of the costs incurred to extend service.
In one case, a court upheld a connection fee imposed on new connections where the fee was used to help finance a new project for an additional source of water. The court concluded that the new customers benefited because without the new water source they could not have been served. (Tidewater Association of Homebuilders v. City of Virginia Beach, 400 S.E. 523 (Va. 1991))
Sometimes, a utility may be unwilling to extend a main to a proposed development because of the risk that the development will not be built out as expected. The developer may assume the risk by constructing the main extension at its cost and contributing the main to the utility. As new customers attach to the main extension, the utility may charge a connection fee which it then refunds in whole or in part to the developer who financed the main extension.
How is the reasonableness of a connection charge to be measured? One Illinois court said that a connection charge is to recover the deferred cost of extending service to new customers. (City of Pontiac v. Mason, 50 ILL.App. 3d 102 (4th Dist. 1977). A Massachusetts court said that connection fees should reasonably relate to the cost of service to new customers, including the incremental cost of additional facilities that are required. (Bertone . v. Dept. of Public Utilities, 583 N.E.2d 829 (Mass. 1992))
Regulated utilities may have main extension rules in their tariffs approved or required by their regulatory agencies. Unregulated utilities may have connection fees governed by developer contracts or annexation agreements, as well as by ordinance.
A challenge to an unregulated utility's connection fee is subject to a heavy burden of proof. Generally, courts accord a presumption of validity to charges set by municipal ordinance (Inland Real Estate Corp. v. Palatine, 146 Ill.App. 3d 92 (1st Dist 1986)) So, in a Vermont case, the court held that plaintiffs did not prove that a connection fee was unreasonable because they did not present a cost analysis showing that it was unreasonable or set in an arbitrary manner. Handy v. City of Rutland, 598 A.2d 114 (Vt. 1990). In a Texas case, the court held that plaintiff failed to establish tap on fees were unreasonable because there was no evidence that the fees were in excess of the costs of providing services. It said that plaintiff did not carry his substantial burden of showing that the connection fee ordinance was invalid. (Black v. City of Killeen, 78 S.W.3d 686 (Ct App Tex. 2002))
It appears that, if connection fees are reasonably related to the costs of serving new customers, they likely will be found to be reasonable.
The propriety of connection fees imposed by regulated utilities generally is determined by the particular regulatory commission. However, the reasonableness of tap-on fees imposed by unregulated municipal-owned utilities is for the courts.
The basic rationale for a legitimate connection fee is to avoid subsidization of service to new customers by current customers; and to shift costs and risks incurred to serve new customers to those who benefit or cause risks.
So, for example, a water utility may construct a main extension to serve potential customers in a proposed subdivision. It may then charge a connection fee to new customers as they attach so as to recover a portion of the costs incurred to extend service.
In one case, a court upheld a connection fee imposed on new connections where the fee was used to help finance a new project for an additional source of water. The court concluded that the new customers benefited because without the new water source they could not have been served. (Tidewater Association of Homebuilders v. City of Virginia Beach, 400 S.E. 523 (Va. 1991))
Sometimes, a utility may be unwilling to extend a main to a proposed development because of the risk that the development will not be built out as expected. The developer may assume the risk by constructing the main extension at its cost and contributing the main to the utility. As new customers attach to the main extension, the utility may charge a connection fee which it then refunds in whole or in part to the developer who financed the main extension.
How is the reasonableness of a connection charge to be measured? One Illinois court said that a connection charge is to recover the deferred cost of extending service to new customers. (City of Pontiac v. Mason, 50 ILL.App. 3d 102 (4th Dist. 1977). A Massachusetts court said that connection fees should reasonably relate to the cost of service to new customers, including the incremental cost of additional facilities that are required. (Bertone . v. Dept. of Public Utilities, 583 N.E.2d 829 (Mass. 1992))
Regulated utilities may have main extension rules in their tariffs approved or required by their regulatory agencies. Unregulated utilities may have connection fees governed by developer contracts or annexation agreements, as well as by ordinance.
A challenge to an unregulated utility's connection fee is subject to a heavy burden of proof. Generally, courts accord a presumption of validity to charges set by municipal ordinance (Inland Real Estate Corp. v. Palatine, 146 Ill.App. 3d 92 (1st Dist 1986)) So, in a Vermont case, the court held that plaintiffs did not prove that a connection fee was unreasonable because they did not present a cost analysis showing that it was unreasonable or set in an arbitrary manner. Handy v. City of Rutland, 598 A.2d 114 (Vt. 1990). In a Texas case, the court held that plaintiff failed to establish tap on fees were unreasonable because there was no evidence that the fees were in excess of the costs of providing services. It said that plaintiff did not carry his substantial burden of showing that the connection fee ordinance was invalid. (Black v. City of Killeen, 78 S.W.3d 686 (Ct App Tex. 2002))
It appears that, if connection fees are reasonably related to the costs of serving new customers, they likely will be found to be reasonable.
Thursday, February 16, 2012
LOOKING FOR LOVE? SAY IT WITH SEWAGE
Our Valentines Day was rather sedate...no flowers, no candy, no jewelry, no special dinner. My wife and I each were out of town at separate meetings, at which she celebrated with a sandwich and I with grocery fried chicken. I did get home in time to watch re-runs of Swamp People, and for some live mud wrestling on the Forlorn channel.
When I was a young kid, as in first and second grade, I really looked forward to Valentines Day-- not because it meant candy but because it meant that I might get a card from some girl in my class with pigtails on which I had a crush. You know, one of those mass-produced cards that came in a box of 100 that probably cost a dollar. But, alas, romantic disappointment always arrived at my desk, as I received cards only from Gertrude, Cedric and Henry.
After some life review, I brightened as I read this week a Wall Street Journal article telling how 100 people spent a romantic Valentines Day visiting the largest New York City sewage treatment plant. The facility treats 1.5 million gallons of wastewater per day. The visitors were shown how the plant operates and toured control rooms and digesters. One man said it was something fun to do together, as he kissed his girlfriend.
Of course, some persons noticed a certain rotten egg smell. ( I will not repeat my wool suit at a sewage treatment plant story, as with causal days maybe people do not wear that much wool anymore).
Odor leads me to another story I read this week. It appears that scientists at the City College of New York have discovered that a material made from used coffee grounds can absorb hydrogen sulfide gas--the stuff that smells like rotten eggs at sewage treatment plants. Actually, the process is called "adsorption." Caffeine in the grounds facilitates the process because it contains nitrogen.
So, next Valentines Day, or if you are looking for romance anytime, forget the flowers, candy, jewelry and special dinner. Just go visit a sewage treatment plant and have a cup of coffee there. It can be stimulating, and is so organic!
When I was a young kid, as in first and second grade, I really looked forward to Valentines Day-- not because it meant candy but because it meant that I might get a card from some girl in my class with pigtails on which I had a crush. You know, one of those mass-produced cards that came in a box of 100 that probably cost a dollar. But, alas, romantic disappointment always arrived at my desk, as I received cards only from Gertrude, Cedric and Henry.
After some life review, I brightened as I read this week a Wall Street Journal article telling how 100 people spent a romantic Valentines Day visiting the largest New York City sewage treatment plant. The facility treats 1.5 million gallons of wastewater per day. The visitors were shown how the plant operates and toured control rooms and digesters. One man said it was something fun to do together, as he kissed his girlfriend.
Of course, some persons noticed a certain rotten egg smell. ( I will not repeat my wool suit at a sewage treatment plant story, as with causal days maybe people do not wear that much wool anymore).
Odor leads me to another story I read this week. It appears that scientists at the City College of New York have discovered that a material made from used coffee grounds can absorb hydrogen sulfide gas--the stuff that smells like rotten eggs at sewage treatment plants. Actually, the process is called "adsorption." Caffeine in the grounds facilitates the process because it contains nitrogen.
So, next Valentines Day, or if you are looking for romance anytime, forget the flowers, candy, jewelry and special dinner. Just go visit a sewage treatment plant and have a cup of coffee there. It can be stimulating, and is so organic!
Sunday, February 5, 2012
WATER CONSERVATION MEETS RATE INCREASE...COMING SOON TO A THEATRE NEAR YOU
No--not another Godzilla movie. Rather, a potential dramatic confrontation that is not fictional.
A hot topic currently in the water industry is water sustainability and, consequently, its conservation. Generally, it appears that efforts to promote conservation of water can be either voluntary or mandatory.
Voluntary conservation can range from educational programs to inform customers how to avoid wasteful water use to financial incentives for installation of more efficient or low flow appliances and to promotion of downspout rain barrels.
Mandatory water conservation can arise through regulatory requirements for the use of low flow toilets, faucets, shower heads, and appliances; irrigation and sprinkling restrictions, and limits on sources of supply. One form of mandatory water conservation can occur when a regulatory agency imposes conservation requirements on a water utility and its end users as well. Such regulation can raise an interesting potential conflict between a utility's legal obligation to serve the demands of its customers and its legal obligation to impose restrictions on those very demands. See, for example, Arizona Water Company v. Arizona Department of Water Resources, 91 F.3rd 990 (AZ 2004).
A customer of a water utility may conclude that if less water is used due to conservation, the water bill should be lower. However, this belief is not necessarily true; and, in point of fact, in the case of a well managed water system, likely will not be true. Water utilities may be finding that conservation is resulting in decreasing system water demand. Lower water sales translates into less revenue to cover fixed costs, debt service and funding of reserves for repairs and replacements. Further, if a utility is compelled to meet tight limits on unaccounted for water, less revenue also makes leak detection, main repair and meter replacement programs more difficult to perform.
As a result, a utility that experiences declining revenue due to conservation will have to increase rates to satisfy its ongoing revenue requirements. And, customers who may be using less water may end up paying more for the water they do use. Again, rates should be sufficient to cover all costs of service.
If conservation results in such a reduction in system demand that system capacity may be viewed as excess, a question can arise as to recovery of costs associated with that excess capacity. That is a question for another day!
A hot topic currently in the water industry is water sustainability and, consequently, its conservation. Generally, it appears that efforts to promote conservation of water can be either voluntary or mandatory.
Voluntary conservation can range from educational programs to inform customers how to avoid wasteful water use to financial incentives for installation of more efficient or low flow appliances and to promotion of downspout rain barrels.
Mandatory water conservation can arise through regulatory requirements for the use of low flow toilets, faucets, shower heads, and appliances; irrigation and sprinkling restrictions, and limits on sources of supply. One form of mandatory water conservation can occur when a regulatory agency imposes conservation requirements on a water utility and its end users as well. Such regulation can raise an interesting potential conflict between a utility's legal obligation to serve the demands of its customers and its legal obligation to impose restrictions on those very demands. See, for example, Arizona Water Company v. Arizona Department of Water Resources, 91 F.3rd 990 (AZ 2004).
A customer of a water utility may conclude that if less water is used due to conservation, the water bill should be lower. However, this belief is not necessarily true; and, in point of fact, in the case of a well managed water system, likely will not be true. Water utilities may be finding that conservation is resulting in decreasing system water demand. Lower water sales translates into less revenue to cover fixed costs, debt service and funding of reserves for repairs and replacements. Further, if a utility is compelled to meet tight limits on unaccounted for water, less revenue also makes leak detection, main repair and meter replacement programs more difficult to perform.
As a result, a utility that experiences declining revenue due to conservation will have to increase rates to satisfy its ongoing revenue requirements. And, customers who may be using less water may end up paying more for the water they do use. Again, rates should be sufficient to cover all costs of service.
If conservation results in such a reduction in system demand that system capacity may be viewed as excess, a question can arise as to recovery of costs associated with that excess capacity. That is a question for another day!
Wednesday, January 25, 2012
ARE WE WATCHING THE WELL GO DRY?
Water sustainability has become a hot issue for utilities and water users. In many areas of the world, including the United States, demand for water is exceeding sources of supply. For example, it appears that ground water use is becoming unsustainable in some locations.
Recently, gravity-monitoring satellites have disclosed that ground water supplies have diminished substantially over the past nine years in many parts of the world, including California's Central Valley. (See Science News, January 14, 2012, p.9). It seems that rapid depletion of ground water particularly is occurring in major aquifers underlying arid regions.
While some reduced recharge may be attributed to climate conditions such as drought, it has been asserted that the largest depletion is due to farming irrigation uses. (Id at p.9).
No doubt, urban development also has been a cause for ground water depletion. For example, rapid housing growth in suburban Chicago resulted in serious mining and reduction of ground water of acceptable quality. Only the availability of Lake Michigan water through pipeline extensions enabled communities to abandon their diminishing wells.
Water sustainability, of course, also is an issue for surface water sources of supply. The same factors of demand and climate create stresses on rivers, lakes and reservoirs.
Concerns over water sustainability are growing. For example, the American Water Works Association is presenting a four day sustainable water management conference March 18-21, 2012, in Portland, Oregon.
Attention to water sustainability by everyone is important. If we simply watch the well go dry, we surely will miss the water...and a lot more.
Recently, gravity-monitoring satellites have disclosed that ground water supplies have diminished substantially over the past nine years in many parts of the world, including California's Central Valley. (See Science News, January 14, 2012, p.9). It seems that rapid depletion of ground water particularly is occurring in major aquifers underlying arid regions.
While some reduced recharge may be attributed to climate conditions such as drought, it has been asserted that the largest depletion is due to farming irrigation uses. (Id at p.9).
No doubt, urban development also has been a cause for ground water depletion. For example, rapid housing growth in suburban Chicago resulted in serious mining and reduction of ground water of acceptable quality. Only the availability of Lake Michigan water through pipeline extensions enabled communities to abandon their diminishing wells.
Water sustainability, of course, also is an issue for surface water sources of supply. The same factors of demand and climate create stresses on rivers, lakes and reservoirs.
Concerns over water sustainability are growing. For example, the American Water Works Association is presenting a four day sustainable water management conference March 18-21, 2012, in Portland, Oregon.
Attention to water sustainability by everyone is important. If we simply watch the well go dry, we surely will miss the water...and a lot more.
Subscribe to:
Posts (Atom)