Sackett v. EPA Final Act

 In 2005 Mike and Chantell Sackett purchased less than an acre of land to build a home near to but not adjoining a lake. The lake front homes had already been built. After obtaining building permits from the county, they began the building process by spreading fill material over the lot. Two people from the U.S. EPA and one person from the Army Corps of Engineers appeared and issued the Sacketts an “Administrative Compliance Order” (ACO), alleging the land was a wetland subject to the Clean Water Act jurisdiction and ordered the Sacketts to restore the land to its original condition or face $37,500 in fines per day for violation of the Clean Water Act and undisclosed to the Sacketts, an additional $37,500 per day for violating the compliance order. The Sackett family appealed for a hearing believing that their land was not a wetland, but was denied by EPA and the federal court.

In addition, under an agreement between the U.S. EPA and the Army Corps of Engineers the Sacketts could not obtain a permit (even if they wanted to) until the open enforcement action was concluded. The Army Corp of Engineers insisted the site must be restored to its previous condition to apply for a permit to place fill material on a wetland. However, under the new guidance the EPA and Army Corps of Engineers can determine a site is a wetland subject to the Clean Water Act based on “general scientific literature,” in lieu of actual case-specific analysis of the water itself, and so the Sacketts found themselves in a Catch 22.

In 2012 the U.S. Supreme Court unanimously ruled that the Sacketts may seek pre-enforcement judicial review of ACOs and that their inability to seek pre-enforcement judicial review of the ACO violated their rights under the Due Process Clause of the U.S. Constitution. The EPA had maintained that the ability to issue compliance orders with huge financial penalties without the ability to seek recourse was an effective means to obtain compliance. However, the Supreme Court disagreed. The effective scope of the federal regulations and power had been so far expanded by the 2011 Guidance to include any conceivable naturally occurring water.

In the latest case, Mike and Chantell Sackett sued, challenging the EPA's interpretation of Waters of the United States. The Ninth Circuit Court of Appeals had upheld the district court's opinion, finding that the Clean Water Act  covers wetlands with an “ecologically significant nexus” to traditional navigable waters and that the finding by the EPA satisfied that standard. 

The EPA had classified the wetlands on the Sacketts' lot as "waters of the United States" because they were near a ditch that fed into a creek, which fed into Priest Lake, a navigable, intrastate lake. The EPA argued that the wetlands on the Sackett property were "adjacent" to an "unnamed tributary" on the other side of a 30-foot road. To establish a significant nexus, the EPA combined the Sacketts' lot together with the Kalispell Bay Fen, a large nearby wetland complex that the Agency regarded as "similarly situated."

Their argument did not sway a single justice. The Supreme Court found that the EPA had overstepped its authority in asserting jurisdiction over the Sacketts' property. However, the justices disagreed on the proper standard for how to determine when the agencies may assert jurisdiction over an adjacent wetland under the Clean Water Act.

The Clean Water Act of 1972 makes it a crime to discharge pollutants into the "navigable waters of the United States." However, what constitutes a "pollutant" or "navigable water" has been open to interpretation and a series of guidance documents over the years have continually expanded the definition of “navigable waters of the United States” until it was defined by the US EPA and the Army Corps of Engineers as:

• Traditional navigable waters
• Interstate waters
• Tributaries to navigable waters and interstate waters
• Seasonal tributaries, steams or creeks
• Wetlands adjacent to any of the above
• And the agency added the “other” category that seems to include everything but swimming pools, fountains, irrigation ditches and stock watering systems.

The majority opinion, written by Justice Alito and joined by Justices Roberts, Thomas, Gorsuch and Coney-Barrett, did effectively narrow this interpretation of the reach of the Clean Water Act. The EPA had argued that the significant nexus test has been and remains sufficient to establish jurisdiction over "adjacent" wetlands. The agencies asked the Court to defer to its understanding of the Clean Water Act’s jurisdictional reach as set out in its January 2023 Waters of the United States rule. The court offered multiple reasons for concluding that the agencies' interpretation is inconsistent with the text and structure of the Clean Water Act. 

The Supreme Court was having none of it. The court held that "EPA's interpretation gives rise to serious vagueness concerns in light of the Clean Water Act's criminal penalties." Under the significant nexus test, "almost all wetlands and waters" can be reregulate and the actions of the EPA could be capricious and targeted. Citing due process protections, the court was concerned that ordinary people would not be able to determine what conduct is prohibited under the significant nexus test. The opinion noted that the Clean Water Act can criminalize even mundane activities and, therefore, a "staggering array of landowners are at risk of criminal prosecution or onerous civil penalties." Anyone could be treated as the Mike and Chantell Sackett were with little real recourse. It has taken 18 years and the monumental costs of two cases argued before the Supreme Court for the Sacketts to be allowed to build their home.

While the 2023 Waters of the United States rule was not technically before the court, the majority opinion addressed the EPA's arguments and refused to defer to the EPA's interpretation of Waters of the United States based on "significant nexus”(1) in that rule effectively striking down that rule. There needs to be a reasonable, obvious and consistent standard, for navigable waters of the United States to protect them from industrial and wastewater discharge. Though the Clean Water Act was designed to protect our surface water from point source pollution, wetlands and groundwater also need to be protected.

The proper way to protect the wetlands, groundwater and seasonal streams that we now understand are so essential to a balanced ecology and healthy rivers and streams  may be regulations for the application of fill material, land use, non-point source pollution and other local issues. These are not issues addressed under the Clean Water Act. These issues need to be consistently and properly addressed on the state and local level. Something that is often hard to do. The Clean Water Act may be the wrong tool for a good cause. Congress may need to act to create the basic framework for laws to protect the sustainability of our water resources for our future. It is not the court’s job nor the agency’s job to create law.

(1) A prior Supreme Court opinion Rapanos v. United States, (2006) the court failed to reach a majority, resulting in two different standards to choose from – the "significant nexus" standard by former Justice Kennedy's concurring opinion and the "relatively permanent" standard as set forth in the Rapanos plurality opinion written by the late Justice Scalia. This Court has agreed with the Scalia standard that to assert jurisdiction over an adjacent wetland under the Clean Water Act, a party must establish "first, that the adjacent body of water constitutes a relatively permanent body of water connected to traditional interstate navigable waters; and second, that the wetland has a continuous surface connection with that water, making it difficult to determine where the 'water' ends and the 'wetland' begins.'"

The Wells of Prince William County 2023

Earlier this month the well owners who participated in the 2023 Prince William County Well Water Clinic received their results by email. Below you can see the summary of what was found in the 106-water analyses performed. VA Tech tested for the naturally occurring contaminants and common sources of contamination: a poorly sealed well or a nearby leaking septic system, or indications of plumbing system corrosion. These are the most common contaminants that affect drinking water wells. 

To determine if treatment is necessary, water test results should be compared to a standard-usually the U.S.EPA Safe Drinking Water Act (SDW) limits. Though private wells are not regulated by the U.S. Environmental Protection Agency (EPA) or the Safe Drinking Water Act, the SDW act has primary and secondary drinking water standards that we use for comparison. Primary standards are ones that can impact health and from the tested substances include coliform bacteria, E. coli bacteria, nitrate, lead, and arsenic. Secondary standards impact taste or the perceived quality of the water.

Just because your water appears clear does not mean it is safe to drink. The 2023 Prince William County water clinic found that 22.6% of the wells tested present for coliform bacteria. This is lower than some previous years. Coliform bacteria are not a health threat itself; it is used to indicate other bacteria that may be present and identify that a well is not properly sealed from surface bacteria. The federal standard for coliform bacteria is zero, but the federal standard allows that up to 5% of samples can test positive for coliform during a month.

One of the bacteria contaminated wells tested positive for E coli. Fecal coliform and E. coli are bacteria whose presence indicates that the water is contaminated with human or animal wastes. Disease-causing microbes (pathogens) in these wastes can cause diarrhea, cramps, nausea, headaches, or other symptoms. These pathogens may pose a special health risk for infants, young children, and those with compromised immune systems. However, people can drink water contaminated with fecal bacteria and not notice.

If your well is contaminated with coliform but not fecal coliform or E. coli, then you have a nuisance bacteria problem, and the source may be infiltration from the surface from rain or snow melt. Typical causes are improperly sealed well cap, well repairs performed without disinfecting or adequately disinfecting the well, failed grouting or surface drainage to the well. Very low levels of coliform (1-5 MPN) may appear in an older well during extremely wet periods.

If your well was found to have coliform bacteria present you should shock chlorinate the well (according to the procedure from VA Tech), repack the soil around the well pipe to flow away from the well and replace the well cap. Then after at least two weeks and the next big rainstorm retest the well for coliform. If coliform bacteria is still present then a long-term treatment should be implemented: using UV light, ozonation, or chlorine for continuous disinfection. These systems can cost up to $2,000 installed more with supply interruptions.

If you have fecal coliform in the well or E. coli, your well is being impacted by human or animal waste and you are drinking dilute sewage. If there is not a nearby animal waste composting facility, then you are probably drinking water from a failed septic system- yours or your nearest neighbors or in some areas a leaking sewer line. To solve this problem you need to fix or replace the septic system that is causing the contamination, replace the well or install a disinfection and micro filtration or reverse osmosis system. Giardia or Cryptosporidium are two microscopic parasites that can be found in groundwater that has been impacted by surface water or sewage. Both parasites produce cysts that cause illness and sometimes death. Chlorine can work against Giardia but not Cryptosporidium. Ultraviolet (UV) light works against both Giardia and Cryptosporidium so it is the preferred method of treating this problem.

The failing septic systems can often be identified by using tracer dyes. While continuous disinfection will work to protect you from fecal bacteria and E. coli, be aware that if your well is being impacted by a septic system, then the well water might also have present traces of all the chemicals and substances that get poured down the drain. Long term treatment for disinfection, and micro-filtration should be implemented: using UV light, ozonation, or chlorine for continuous disinfection, carbon filtration, and anything that is used for drinking should be further treated with a reverse osmosis systems or micro membrane system both work by using pressure to force water through a semi-permeable membrane. Large quantities of wastewater are produced by reverse osmosis systems and need to bypass the septic system or they will overwhelm that system creating more groundwater problems. Reverse osmosis systems produce water very slowly, a pressurized storage tank and special faucet needs to be installed so that water is available to meet the demand for drinking and cooking.

Nitrate can contaminate well water from fertilizer use; leaking from septic tanks, sewage and erosion of natural deposits. None of the wells in our group of 102 samples had nitrate levels above the MCL. The regulatory limit for nitrate in public drinking water supplies, 10 mg/L,  was set to protect against infant methemoglobinemia, but other health effects were not considered and are emerging as problems.

Dr. Mary Ward of the Occupational and Environmental Epidemiology Branch, Division of Cancer Epidemiology and Genetics, National Cancer Institute has lead several important studies comparing all the research on the health impacts from exposure to nitrate in water. The first review was of studies published before 2005. In 2018 Dr. Ward was lead author on a review of more than 30 epidemiologic studies on drinking water nitrate and health outcomes.

This year they found 7.5% of homes had first draw lead levels above the SDWA maximum contaminant level of 0.015 Mg/L. After flushing the tap for at least one minute one home had lead levels above the 0.15 mg/L level; however, many scientists do not believe that any level of lead is safe to drink over an extended period of time. Often homes that have elevated lead in the first draw, have lower pH values.

Houses built before 1988 when the ban on lead went into effect and have low pH water typically have higher lead concentrations. Lead leaches into water primarily as a result of corrosion of plumbing and components in the well itself but can also result from flaking of scale from brass fittings and well components. Corrosion control techniques such as adjusting pH or alkalinity that are commonly used to neutralize aggressive water will not work in to reduce lead being leached from well components. For most instances, though, a neutralizing filter and lead removing activated carbon filters can be used to remove lead leaching from plumbing pipes, solder and fixtures. Recently, some home water treatment companies are offering home treatment systems that neutralize the water and add orthophosphate other phosphate solution to coat the piping to prevent further corrosion of metal pipes. It should work, but I have never seen such a home system and am not aware of any testing. Public water distribution systems typically use orthophosphate to coat pipes and prevent corrosion an release of lead.

Iron and manganese are naturally occurring elements commonly found in groundwater in this part of the country. 3.8% of the wells tested exceed the iron standard and 8.5% exceeded the manganese standard. At naturally occurring levels iron and manganese do not present a health hazard. However, their presence in well water can cause unpleasant taste, staining and accumulation of mineral solids that can clog water treatment equipment and plumbing and discolored water. The standard Secondary Maximum Contaminant Level (SMCL) for iron is 0.3 milligrams per liter (mg/L or ppm) and 0.05 mg/L for manganese. This level of iron and manganese can be detected by taste, smell, or appearance. In addition, some types of bacteria react with soluble forms of iron and manganese and form persistent bacterial contamination in a well, water system and any treatment systems. These organisms change the iron and manganese from a soluble form into a less black or reddish brown gelatinous material (slime). Masses of mucous, iron, and/or manganese can clog plumbing and water treatment equipment.

All systems of removing iron and manganese essentially involve oxidation of the soluble form or killing and removal of the iron bacteria. When the total combined iron and manganese concentration is less than 15 mg/l, an oxidizing filter is the recommended solution. (Iron bacteria, hydrogen sulfide and tannins can also be removed with pre-chlorination.) An oxidizing filter supplies oxygen to convert ferrous iron into a solid form which can be filtered out of the water. Higher concentrations of iron and manganese can be treated with an aeration and filtration system. This system is not effective on water with iron/ manganese bacteria but is very effective on soluble iron and manganese, so you need to do further testing to determine what type of iron/manganese you have before you install a treatment system. Newer iron filters have an option to add an ozone generator to kill reducing bacteria.  Water softeners can remove low levels of iron and manganese and are widely sold for this purpose because they are very profitable but are now being banned in some locations due to rising sodium and chloride levels, what is known as inland salinization. Also, water softeners are easily clogged by iron bacteria.

Chemical oxidation can be used to remove high levels of dissolved or oxidized iron and manganese as well as treat the presence of iron/manganese (or even sulfur) bacteria. The system consists of a small pump that puts an oxidizing agent into the water before the pressure tank. The water will need about 20 minutes for oxidation to take place so treating before a holding tank or pressure tank is a must. After the solid particles have formed the water is filtered. The best oxidizing agents are chlorine or hydrogen peroxide. If chlorine is used, an activated carbon filter is often used to finish the water and remove the chlorine taste. The holding tank or pressure tank will have to be cleaned regularly to remove any settled particles.

The pH of water is a measure of the acidity or alkalinity. The pH is a logarithmic scale from 0 – 14 with 1 being very acidic and 14 very alkaline. Drinking water should be between 6.5 and 8.5. For reference and to put this into perspective, coffee has a pH of around 5 and salt water has a pH of around 9. Corrosive water, sometimes also called aggressive water is typically water with a low pH. (Alkaline water can also be corrosive.) Low pH water can corrode metal plumbing fixtures causing lead and copper to leach into the water and causing pitting and leaks in the plumbing system. The presence of lead or copper in water is most commonly leaching from the plumbing system or well rather than the groundwater. Acidic water is easily treated using an acid neutralizing filter. Typically these neutralizing filters use a granular marble, calcium carbonate or lime. If the water is very acidic a mixing tank using soda ash, sodium carbonate or sodium hydroxide can be used. The acid neutralizing filters will increase the hardness of the water because of the addition of calcium carbonate. 7.5% of the wells tested were found to have acidic water this year. Two wells had too high a pH. This is usually from over treating with a water softener.

Water that contains high levels of dissolved minerals is commonly referred to as hard. Groundwater very slowly wears away at the rocks and minerals picking up small amounts of calcium and magnesium ions. Water containing approximately 125 mg/L can begin to have a noticeable impact and is considered hard. Concentrations above 180 mg/L are considered very hard. Hard water can be just a minor annoyance with spotting and the buildup of lime scale, but once water reaches the very hard level 180 mg/L or 10.5 grains per gallon, it can become problematic. Overall 20.8% of homes tested had very hard water. (It is to be noted that 45.3% of homes reported having a water softener.)

Two methods are commercially available (and certified) to treat hard water. A water softener and a water system that work through a process called template assisted crystallization (TAC), have been certified by DVGW-W512 and are available in whole house units. In template assisted crystallization, water flows through a tank of TAC media. When the hard water comes into contact with the media, the magnesium and calcium ions are caught by the nucleation sites. As more calcium and magnesium ions build up within the sites, small micro-crystals form and flow through your plumbing. They do not attach themselves to your water pipes as scale.

The ubiquitous water softening system is an ion exchange system consisting of a mineral tank and a brine tank. The mineral tank holds small beads of resin that have a negative electrical charge. The calcium and magnesium ions (along with small amounts of other minerals) are positively charged and are attracted to the negatively charged beads. This attraction makes the minerals stick to the beads as the hard water passes through the mineral tank. Sodium from salt is used to charge the resin beads. The brine tank is flushed out when the resin beads are recharged carrying the salty solution to the environment. Inland salinization of surface waters and groundwater is an emerging environmental concern. Research has shown that salinization has affected over a third of the drainage area of the contiguous United States even in areas without road salt. At the present time the EPA guidance level for sodium in drinking water is 20 mg/L. Given the number of homes with elevated sodium and our local geology, it is probably a reflection of the number of homes with water softeners-54.7% of the wells tested had elevated sodium.

One of wells was found that had arsenic exceeding the EPA MCL for drinking water of 10 ppm. While arsenic is a naturally occurring element found in soil and groundwater it is not typically found at significantly elevated levels in this geology. Arsenic is best removed by water treatment methods such as reverse osmosis, ultra-filtration, distillation, or as a last choice ion exchange (water softeners). Typically, these methods are used to treat water at only one faucet. Though anionic exchange systems (water softeners) are whole house systems, they may not be the best choice.

My Well Test Results

While the U.S. Environmental Protection Agency (EPA) regulates public water systems, the responsibility for ensuring the safety and consistent supply of water from a private well belongs to the well owner-in this case me. I test my well water at least annually. An easy way to do this is to participate in the annual Virginia Tech Extension Virginia Household Water Quality Program

Last Friday the Household Water Quality Program emailed me my water analysis from the sample taken as part of their well water clinic. This is what I saw when I opened my attachment: 

None of the chemicals or bacteriological indicators that they tested for were found to be in excess of the U.S. EPA safe drinking water recommended limits. All good. In addition to the 14 contaminants they normally report, their instrument that analyzes metals and elements returns data for 14 additional contaminants, many of which are rarely found in well water, that Virginia Tech screens for and provides a supplemental report to people only if found in levels higher than recommended for drinking water. None of those contaminants were found to be elevated in my water samples.

Last year they found trace levels of lead in the first draw sample from a bathroom sink at 0.005 mg/L gave me pause, it was a little higher the year before that at the same sink. The flush sample did not find any lead, it was “non detect,” ND. While this was all within the EPA safe drinking water limits, I do not believe that there is a safe level of lead.

The presence of lead in water that sits for several hours or overnight generally comes the pipes and fixtures and becomes a bigger problem the older the pipes and fixture become. Over time older pipes and fixtures corrode or simply wear away and the lead and other corrosion material (like rust) is carried to the drinking water. Time and water do cause corrosion, but this can be aggravated by the pH of the water or other changes in water chemistry. The amount of lead corroded from metal plumbing generally increases with water corrosiveness.

My water is neutral, I have plastic pipes in the house. It is possible to see traces of lead because there is lead and copper in the well equipment, pressure tank fittings and faucets. Until 2014 when the 2011 Reduction of Lead in Drinking Water Act went into effect, almost all drinking water fixtures were made from brass containing up to 8% lead, even if they were sold as "lead free." Homes built with PVC piping in the 2000's may have some lead in most of the faucets.

Also, before 2014 Prime Western grade “lead free” galvanized steel zinc coating was required to contain between 0.5%-1.4% lead. After 2014, “lead free” galvanized steel must have less than 0.25% lead in the surface coatings. My galvanized steel well casing was installed in 2004. Over time, even under neutral condition, any lead used in coatings can be released to the water and pumped to the household tap or accumulate in scale layers on the pipe surface or well bottom where scale can accumulate and be released or picked up and pumped with the water.

Since 2018 I have been replacing all the faucets in the house, starting with the ones we use for cooking or drinking. There is little I can do about the galvanized steel casing on the well at this point.  The brass fittings on pressure tanks and pitless adaptors are now available with less then 0.25% lead and were replaced in 2020. Last year’s results suggested to me that the faucet might be the source- so it got replaced and this year we did not detect lead. Problem solved.

I test my drinking water every year to make sure it is safe to drink.  When we bought our home I tested the well for all the primary and secondary contaminants in the Safe Drinking Water Act as well as a suite of metals and pesticides using a certified laboratory. I wanted a comprehensive baseline. Still, I did not test for everything, nobody could afford to (I think there are 80,000 or more known chemicals). At the time I did not test for PFAS it was not part of the Safe Drinking Water Act and the tests available at the time were much less sensitive than is available today.

I test the well to make sure that the well was drawing from a groundwater aquifer that was not contaminated. While you can treat, you cannot really "fix" groundwater.  In addition, I wanted a well that was fine without any need for water treatment to address naturally occurring contaminants. Initially, I tested for Bacteria (Total Coliform and E-Coli), 19 heavy metals and minerals including lead, iron, arsenic and copper (many which are naturally occurring, but can impact health); 6 other inorganic compounds including nitrates and nitrites (can indicate fertilizer residue or animal waste this was once a cattle operation); 5 physical factors including pH, hardness, TDS, alkalinity; 4 Trihalomethanes (THMs) and 47 Volatile Organic Chemicals (VOCs) including Benzene, Methyl Tert-Butyl Ether (MTBE) and Trichloroethene (TCE). Organochlorine pesticides, herbicides and PCBs. Finally, I tasted the water.

I do not have any treatment equipment in the house, so I was able to do only one set of water tests. When you test your well, always test the raw water so that you know what you are buying, and test the water after any treatment to make sure the treatment equipment is working properly. What you can live with in terms of water treatment equipment is really a personal decision. I preferred to have water that did not need of any treatment and was a little hard because I like the taste of hard water. When the test is more widely available, I will be testing for PFAS. For now, though, a good sign is that Prince William Service Authority did not find any PFAS in their Evergreen water system which like my home draws from groundwater wells in the Culpeper basin. That is not a guarantee given the distance to their well heads from my house, its all I’ve got right now. There is always something to look for. 

Breaking Up with my Solar Panels

On the back of my house facing almost dead south is a roof mounted 7.36 KW solar array consisting of 32 Sharp 230 watt solar photovoltaic panels and 32 Enphase micro-inverters. My relationship with my solar panels has been somewhat disappointing. The experience of having a solar photo voltaic system on the roof has been far from trouble free. Now it looks as if we are breaking up.

I had imagined that solar panels without any moving parts would make free energy from the sun without any problems. However, starting in the second year of ownership I have had an ongoing series of failures of micro inverters, panels or wiring and a series of roof leaks. There has been a continual stream of problems that all come down to installation (the roof leaks), wiring and Enphase micro inverters. The micro inverters seem to fail with regularly. 

During the first five years of ownership, the original installer worked with me to honor his 5 year warranty. He paid for the repairs from a series of fledging installers, but I had no control over the process nor the solutions he chose to implement. The lack of reliability in what was the first generation of the Enphase micro inverters was very disappointing.

However, in 2019 Enphase offered all first generation purchasers a discount on newer generation Enphase Modules. In the four years after the installer’s warranty expired, I had paid $4,040 in labor alone to replace the failed Enphase modules which is was nearly what the value of the electricity the solar panels produced over those four years. After several conversations Enphase decided to simply give me 32 micro inverters and a new Envoy unit to tie it all together for free, which was really nice. They recommended a local installer with good references and over a decade of experience. I ended up paying NOVA Solar, $5,000 to install the replacement parts and clean the solar panels.

For the next several months and the first time in years I had all 32 solar panels reporting and functioning normally. A micro inverter then failed, but I took no action. My plan at that point was to keep the solar panels until my SRECs expired and then take them down and ground mount solar. It turned out that was the only micro inverter that failed over the next three years.

As troublesome as they’ve been, my solar panels still made financial sense. When I signed the contract to purchase my roof mounted solar system in late 2009 the cost per kilowatt for the Sharp panels I bought was about $6,700 plus permits and installation. However, back in 2009 I was able to obtain a state rebate of $12,000. I also used the 30% federal tax credit which was recently restored under the Inflation Reduction Act. The net cost of the solar system in 2010 after rebates and tax credits was $32,578. In addition, I obtained a property tax exemption in Prince William County that translated to a savings of $656.82 a year for 5 years.

The largest portion of the return on the solar panels is from something called a SREC, a solar renewable energy credit. A SREC is a credit for each megawatt hours of electricity that is produced but used elsewhere. SRECs have value only because some states have solar set asides from their Renewable Portfolio Standards, RPS, which require that a portion of energy produced by a utility be produced by renewable power. There are currently no RPS solar requirements in Virginia, thus no value to SRECs in Virginia today beyond the $10-$15 that a RPS credit is worth, though that may change under the new Clean Energy Virginia laws or other incentives.

When I installed my solar panels, my system was eligible to sell SRECs in Pennsylvania and Washington DC and I registered my system in both markets. The Pennsylvania market has since collapsed, but the District of Columbia passed a law in 2011 which made the SRECs quite valuable. The law prevents out-of-state systems from registering after January 31st 2011, but my system was grandfathered. DC is currently the only under-supplied SREC market in the nation.  There ae no large commercial solar farms, no large industrial installations within the District. Thanks to the Washington DC SREC market my solar panels have earned $41,313.26 (after fees but before taxes), dwarfing the $15,125 in free energy they have produced. Even with a total of $12,782 I have paid out of pocket in repairs, the system has paid for itself and I am more than $13,700 cash positive on the project with the cost of capital near zero until the last two years, it was an adequate return.

After the last big rainstorm I noticed a small stain in the ceiling. The two roofers that I consulted both say they cannot patch it and the roof is shot and needs to be replaced. As you can see it appears that the 25 year asphalt architectural shingles have worn away in under 18 years-possibly helped by the runoff flow from the solar panels. To replace the roof, I have to take down the solar panels. I called NOVA solar to ask for an estimate on taking down the solar panels and possibly ground mounting them.

The white spots are the backing of the shingle

NOVA Solar came back to me with: “To remove the system, then install a ground mounted system (using the same panels) the total cost would be $54,400. This costs includes:

• Removal of current system
• Permitting and Engineering costs for Permitting (This is notoriously expensive in Prince William County.)
• Racking and Electrical Equipment for ground mounted system 
• Trench to main service panel for electrical wiring
• Labor"

Wow, I did not expect that. That is twice what the same company quoted me in 2019 when they were pricing my options for the replacement of the Enphase modules. That does not make any economic sense. The residual economic value of the solar panels is somewhere around $14,000 the SRECs might be worth around $7,000 if I could keep my facility number in ground mounting, zero otherwise. There is no return even if the system was new. A ten year CD from my bank is available for 4.25% and would yield over $23,000 over that period and I would get my principal back. So, they are coming down, I will never put solar panels on the roof again. I am tired of constantly dealing with leaks.  I will clean the panels and put them in storage to see if I can find some use for them. For now this is the end of my solar story, but if you have any ideas for using the solar panels drop me a comment.

Maintaining my Alternative Septic System

On Tuesday I had the annual inspection of my Alternative Onsite Sewage System (AOSS) other wise know as my alternative septic system.  Statewide alternative septic regulations first went into effect in 2009 and ignoring a  60 day gap in 2011 have been in effect ever since.  So, as a homeowner with an alternative septic system in Virginia I need to be in compliance with the regulations. No excuses are accepted.

Alternative septic systems need to be inspected annually and maintained in accordance with manufacturer's recommendations and local and state laws.  Those who fail or refuse to comply with the mandatory rules and regulations face civil penalty regulations and fines, including but not limited to fines by VDH as well as their locality.  I have my system inspected every May.

If you should happen to own or purchase a home that currently has an alternative septic system as I do, you must have a licensed onsite system operator under contract or directly employed (“hire at will”) to maintain the system. In 2015 the regulations were amended to  increase the number of operators who could inspect these systems. This was done to bring down the contract costs.  

A Conventional Septic System consists of a septic tank, distribution box, and a leach field (some may refer to this as a “drain field”). That’s it, anything else and it is an alternative system. Conventional drain fields are usually installed when soil conditions are optimal (well draining soils that perc). The standards for the “perc test” were tightened when the alternative regulations we passed.

Alternative septic systems are anything that are not "conventional" systems.   There are numerous types of alternative septic systems (some common types include: Multi-flow, Advantex, Puraflo, and Bio-Microbics, are currently approved off the shelf examples) however all are designed to be used for difficult sites where soil and / or difficult terrain conditions  (limited soil percolation rate, rocky site, high ground water level, steeply sloped, limited site space, etc.).   

Under the regulations, the minimum site visit and sampling requirements for AOSS with flows less than 1,000 gallons per day (gpd) are:

1. One routine inspection every 12 months
2.  Have an operator collect any samples required which depends on date the system was installed;
3.  Routine maintenance as prescribed in the system’s O&M manual.
4.  Notification to homeowner of any remediation, if necessary, to return AOSS system to normal.

You should  understand whether your agreement includes reporting/record keeping, sampling, and required lab testing.    If you are under a contract agreement 9as I am), look to see if your contract includes an Emergency call option in the event of a failure or unexpected problem / repairs; an Emergency call usually does not apply on a “hire at will” basis (non-contract). Make sure that the information is uploaded to the VDH site. 

Mr. Mike Thomas Sr. from SES checking my sludge level in my tanks

Mr. Thomas is checking the volume flow, blower and zoner

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I also need to comply with the onsite sewage system requirements contained in local ordinances for the Chesapeake Bay Preservation Act (§ 10.1-2100 et seq. of the Code of Virginia) and the Chesapeake Bay Preservation Area Designation and Management Regulations (9VAC10-20) when an AOSS is located within a Chesapeake Bay Preservation Area. Basically, this requires that my septic tank be pumped every three years.

My system was approved and installed in 2004 and that system  is no longer listed as approved for new system installs.  The design has multiple tanks and a blower for an ATU tank which as not proved to be reliable. The result is that I am routinely replacing the blower unit. Fortunately, it alarms when it fails. Annoying, but helpful.

Some newer alternative systems require sampling. Laboratory sampling is not required for any small AOSS with an installed soil treatment area that is sized for septic tank effluent and complies with the requirements of 12VAC5-610 for septic tank effluent. In addition to regular maintenance and inspection, all systems installed after April 7, 2010 and whose systems have a secondary treatment and is not exempted by the above statement are required to have a grab sample of sludge taken and analyzed for BOD and, if disinfection is required, fecal coliform once every five years. Systems installed before April 2010 are grandfathered and do not require sampling.

My contract with my service company has them file the paperwork with the state and send me written confirmation of what needs to be done. This year, my service company told me that it is time to pump two tanks. Everything else seems to operating normally.

EPA’s Proposes New CO2 Limit for Power Plants

The U.S. Environmental Protection Agency (EPA) took another shot at regulating the amount of carbon dioxide that can be emitted from fossil fuel power plants with the announcement of the new proposed rule last week. EPA’s proposed rule comes less than a year after the Supreme Court ruled in West Virginia v. EPA that EPA cannot set a greenhouse gas source standard based on generation shifting. However, the opinion was widely interpreted to affirm the EPA’s ability to regulate carbon dioxide emissions at new and existing power plants.

So, that is the approach of the new regulation which lays out a range of proposed requirements for power plants that are fueled by natural gas or coal. This new rule will be challenged in court for its reliance on new and unproven technologies to meet emissions goals that are intended to force the closure of more coal-fired power plants and limit the use of gas-powered electricity. I have a particular interest in this because the expansion of the data center industry in Virginia has taken control of the demand for electricity here. In the next decade it is forecast that data centers will account for more than half the electricity used in Virginia and has made all Virginians dependent on the fossil fuel generated power from West Virginia and Pennsylvania as well as our own fossil fuel plants.

To comply with the new rule large coal-fired power plants that plan to operate beyond 2040 would need to use carbon-capture and sequestration technology (CCS) to reduce their emissions by 90%. “Major” gas-fired plants could either utilize CCS or transition to clean hydrogen  as a fuel source to meet emission reductions. Section 111 of the Clean Air Act under which this rule is being promulgated allows EPA to regulate pollutants from stationary sources through the “best system of emission reduction” that is “adequately demonstrated.” These technologies may not meet that standard in the here and now.

Installation of controls such as CCS for coal and gas plants, and low-GHG hydrogen co-firing for gas plants are reported by the EPA to be more cost-effective for power plants that operate at greater capacity, more frequently, or over longer time periods. The proposed standards and guidelines take this into account by establishing standards for different subcategories of power plants according to characteristics such as their capacity, their intended length of operation, and/or their frequency of operation. This would seemingly allow the existence of emergency peak load generation for weather extremes or other disruptions.

EPA’s argument makes sense, since usually, there are economies of scale; but none of these types of plants exist. These mandated technologies have not yet proven economical at scale.  In addition, the need for pipelines to move the carbon captured for permanent  storage or use is not addressed. These technologies are not yet a proven option. The proposed rule is more than 600 pages long and I have not read it all. I will leave that to the Utilities and Virginia Energy.

EPA will accept comments on these proposals for 60 days after publication in the Federal Register. EPA will also hold a virtual public hearing and will make additional information available on their website. Registration for the public hearing will open after the proposal is published in the Federal Register.

In the legal Challenges that will follow the core questions will be whether CCS is an economically viable technology or has this EPA rule been designed to push electric utilities away from fossil fuels and towards cleaner energy sources. The challenges will be filed soon enough.

It is becoming clear that decarbonization will have an impact on the quality of our lives and grid reliability. We are not yet capable of having unlimited green energy available 24/7. We need to have an honest discussion of costs, sacrifices in quality of life and standard of living and the real benefits to the planet that this will bring. None of this is free and all wealth is limited. We may increase economic disparity for environmental disparity.

EPA states in the rule that “The proposals would also result in cutting tens of thousands of tons of particulate matter (PM2.5), sulfur dioxide, and nitrogen oxide, harmful air pollutants that are known to endanger people’s health, especially in communities that for too long have disproportionally shouldered the burden of high pollution and environmental injustice. In 2030 alone, the proposed standards would prevent:

• approximately 1,300 premature deaths (0.038% of annual deaths);
• more than 800 hospital and emergency room visits (0.0006% of annual emergency room visits);
• more than 300,000 cases of asthma attacks;
• 38,000 school absence days;
• 66,000 lost workdays.”

National Drinking Water Week

This week is National Drinking Water Week. Since 1988 the American Water Works Association and its members have used Drinking Water Week as an opportunity for both water professionals and the communities they serve to recognize the vital role water plays in our daily lives.

At this point in time the United States has one of the safest water supplies in the world, but our drinking water is facing new challenges. Our water treatment and delivery systems are aging and the demand for water continues to grow with populations in arid and urban areas. In the arid west reclaimed or recycled water, is being used to recharge groundwater. In other places waste treatment plants discharge to rivers that supply drinking water systems. Here in Northern Virginia recycled water from UOSA is released to the Occoquan. Water recycling and reuse while increasing supply is introducing a variety of contaminants into our drinking water that water treatment systems and water regulations may not fully address. 

In studies over the last decade the U.S. Geological Survey found that as the amount of urban and agricultural lands increased within the water shed, the numbers of contaminants in the rivers also increased. Rivers receiving municipal and industrial discharge, as well as discharges from other point and non-point sources from stormwater runoff are impacted by man-made organic contaminants, most of which are do not have regulatory limits.  Trace amounts of pathogens, pharmaceutical chemicals and other chemicals are able to pass through the current standard treatment systems. Drinking water standards were developed for natural groundwater and surface water and may not be adequate to protect us from contaminants in reclaimed water. We are just developing the technology to test for some of these substances at the trace levels in which they are found.

The U.S.EPA sets legal limits for over 90 contaminants in drinking water. The Safe Drinking Water Act (SDWA) allows states to set their own drinking water standards as long as the standards meet or exceed the EPA minimum. Water utilities face the increasing challenge of keeping pace with emerging contaminants and issues such as per- and polyfluoroalkyl substances (PFAS), inland salinization, lead and copper in drinking water. Water systems need to monitor and treat water to meet the current regulatory requirements of the SDWA. In the future additional strategies and treatment will be needed to meet the challenges of these emerging contaminants.

I believe that Fairfax Water and our other regional water utilities will be able to meet the challenges facing them, but not all water systems have the resources to meet the challenges ahead. In more rural communities and shrinking urban areas that have a small rate-payer base it is a challenge to have the equipment and staff to meet the requirements of the SDWA and to maintain aging systems.

Fairfax Water is observing Drinking Water Week by inviting the public to learn about how truly vital and valuable clean, safe water is in daily life and its role in protecting public health and the environment now and in the future. Take the time during this Drinking Water Week to understand some of what it takes to consistently deliver clean and safe drinking water 24/7.

"Whether installing new water mains, checking water meters, collecting water samples, responding to your inquiries, or analyzing the water quality, our staff is dedicated all day, every day" said Fairfax Water General Manager Jamie Hedges. "Our small but exceptional workforce is proud to provide water to their friends, family, and neighbors and truly sees their work as a vocation of distinction."

Our Grid, CO2 and Data Centers

Last week Dominion Energy filed its 2023 Integrated Resource Plan (IRP) with the State Corporation Commission(SCC).  In the submission, Dominion details how it plans to meet electricity needs and demands over the next 15 years. The picture they paint is that Dominion cannot both meet the power demand of the exploding number of data centers in Virginia and the mandates of the Virginia Clean Economy Act (VCEA).

The 2020 VCEA is the state’s law outlining a path to decarbonize the electric grid by 2050. VCEA requires the Commonwealth to retire its natural gas power plants by 2045 (Dominion) and 2050 (Appalachian Power). These facilities currently comprise 67% of the current baseload in-state generation as well as 100% of the power plants that meet peak demand. About 30% of Virginia’s generation is from nuclear. Basically, the utility can run carbon-emitting facilities until 2040 and must build a stated amount of solar and wind generation.  Only by petitioning the SCC and demonstrating a need to maintain grid reliability can they continue running their fossil fuel plants. When the VCEA was crafted, they did not foresee the explosive demand for electricity that unconstrained data center development would drive.

Dominion Energy Virginia does not produce all the electricity it delivers and sells. Dominion Energy is a member of PJM Interconnection, LLC (PJM), the regional transmission organization coordinating the wholesale electric grid in the Mid-Atlantic region of the United States. PJM other members supply a significant amount of the energy used in Virginia- about a fifth. PJM recently identified increasing reliability risks due to both the growing demand for power in Virginia and the profile of that power demand and from the premature retirement of dispatchable carbon generation facilities across the region.

The threat of premature retirements, and the resulting reduction to baseload and dispatchable generation capacity they produce, is magnified when the load growth of the Data Center uncontrolled expansion in Northern Virginia is considered. PJM’s revised load forecast reveals that Dominion’s load will grow at 7% annually. That means that electricity demand will more than double over the next 10 years. Dominion’s IRP identified that they cannot meet that demand for power and meet the scheduled retirements of current fossil fuel generators while maintaining Virginia’s current and future grid reliability.

In other words, Virginia plans to decarbonize the grid just ran into the brick wall of the exploding demand of the unconstrained growth of the data centers in Northern Virginia. You cannot plan to more than double electricity demand in 10 years while eliminating generation capacity. It has never been done, and Dominion admits that they need to not only keep all their fossil fuel power generation operating, but build more dispatchable fossil fuel generation to meet this forecast demand.

This switch mandated by VCEA has not been successfully accomplished anywhere in the world, yet. Advances in technology were always necessary to achieve the goals and those advances have not come fast enough. Dominion states that to retire all carbon-emitting generation by the end of 2045, the Company will need to build and buy significant incremental capacity to reliably meet customer load. Their plan to do that requires over 4,500 MW of incremental energy storage and more than 3,000 MW of incremental Small Modular Nuclear, SMR, (which does not exist yet and falls in the category of insert magic here). Even with these additional resources, Dominion would have to purchase 10,800 MW of additional capacity from PJM in 2045 and beyond, raising significant concerns about system reliability and energy independence, including over-reliance on out of-state capacity to meet customer needs. This Plan will also require a substantial increase in energy purchase limits from both PJM and the SCC; and it is questionable if they will be granted.

What is usually considered in these documents to be the most likely case, would require changes to the VCEA. This plan preserves the existing fossil fuel generation and includes several new gas combustion turbines to address future energy and system reliability needs. In addition, this plan requires the  development of SMRs. Due to an increasing load forecast, and the need for dispatchable generation, this plan shows additional natural gas-fired generation and preserves existing carbon-emitting units beyond statutory retirement deadlines established in the VCEA. So, you have it, either we modify the carbon reduction requirements of the VCEA or we stop the expansion of data centers in Virginia. There is no pathway to have both. 

Zoning and land use have always been left up to the counties. It is clear that there is no limit to the desirability of data centers to county supervisors and landowners. The counties of Prince William and Loudoun have been blinded by the windfall profits to the landowners and the prospect of increased tax revenue, but these windfall profits come at the cost of the data centers’ power demand flat profile essentially controlling our grid. They will represent half to two thirds of the power used in Virginia by 2030. We have granted data center companies who care nothing for us control over our environment. We are now getting ready to build 7 gas fired electricity generation facilities to serve them. The data centers will degrade our land and water resources and increase power and water costs for all Virginians.

CO2 Emissions Promises and Where we Stand Now

The window for limiting global temperature to 1.5 degrees Celsius is closing rapidly, if it is not closed already. CO2 emissions from fuel have continued to grow year after year with the exceptions of a brief respite during the global financial crisis and the Covid-19 lockdowns. Even with China not recovered from their Covid-19 lockdowns, world CO2 emissions have resumed their climb. Total CO2 emissions for planet earth reached 40.6 billion tonnes of CO2 (GtCO2) in 2022, , with no sign of the decrease that is urgently needed to tackle climate change.

from the Global Carbon Project

Atmospheric CO2 level reached an average 417.2 ppm in 2022, 51% above pre-industrial levels. The land and ocean CO2 sinks continue to take up around half of the CO2 emissions, despite the negative impact of climate change.

In 2021, U.S. energy-related carbon dioxide (CO2) emissions increased by 6%, compared with 2020 levels as economic activity and energy consumption increased once the initial economic impacts of the COVID-19 pandemic began to subside. In 2022 U.S. energy-related carbon dioxide emissions rose 1.4%.  Despite this increase in total emissions, in 2021 and 2022 emissions were 207 MMmt (4%) lower than their pre-pandemic level in 2019.

Under the Paris Agreement, the United States has set a goal to reach 100 % carbon pollution-free electricity by 2035 and net zero emissions throughout the economy by 2050. The President also pledged an interim goal of a 50-52% reduction from 2005 levels in economy-wide net greenhouse gas pollution by 2030. The EIA is forecasting that we will not achieve that goal.  Last month the U.S. Energy Information Administration reported that they are forecasting that by 2030energy-related CO2 emissions fall to 25% to 38% below 2005 levels.

from EIA

In November, 2020 the Prince William Board of County Supervisors (BOCS) adopted the Climate Mitigation and Climate Resiliency (CM/CR) Goals from the Metropolitan Washington Council of Governments (MWCOG):

By 2030: 

1. Reduce greenhouse gas (GHG) emissions to 50% below 2005 levels,
2. Achieve 100% renewable electricity in Prince William County Government operations
3. Become a Climate Ready Region and make significant progress to be a Climate Resilient Region

By 2035: 

    Source 100% of PWC’s electricity from renewable sources

By 2050:

    Achieve 100% carbon neutrality in Prince William County Government operations

Prince William County is in the process of developing a Community Energy and Sustainability Master Plan (CESMP), which will serve as a roadmap for the county to reach its climate mitigation and resiliency goals.