Biodiversity Law 2010 - Legislative Hearing

Today, the University of Kansas School of Law Biodiversity Law class was invited to Legislative hearings at the Virgin Islands Legislature. Here is the students' account of what they experienced and learned:

The US Virgin Islands have recently been consumed by a project that proposes to take combustible waste and petroleum coke (pet coke) and burn it to produce energy. This project is alternatively styled as a waste incinerator or waste-to-fuel project, among other terms. The project was put out to bid by the USVI WPA and a firm called Alpine won the bid to construct the project. In the lead-in to securing approval and permitting for the project, the territorial government and Alpine have engaged in public town hall meetings, and the USVI Senate scheduled hearings to gather facts about the project. These legislative hearings provided a forum for administrative officials, consultants, community leaders, and concerned citizens to voice their facts and opinions to the USVI senators concerning the proposed waste-to-fuel project to be built on St. Thomas. The hearings were conducted in the committee responsible for economic development and technology and included a witness list of just under twenty people. After being sworn in, each speaker was given five minutes to introduce themselves. Upon motion, the committee moved to allow each speaker ten minutes. In the afternoon, the Senators would pose questions to whichever witnesses they desired.

The proponents of the project spoke first. These included the executive director of the VI Water and Power Administration, the Commissioner of Planning and Natural Resources, and the Waste Management Authority executive. Accompanying these territorial government administrators were the consultants from the fields of law and engineering. The gist of the administrators and consultants’ presentation was that the incinerator project was an efficient way to remove garbage from the island while providing a relatively cheap and renewable source of energy. In addition, they repeatedly noted that the project met the best available control technology standards mandated by the EPA, although no standards for pet coke exist.

Opponents of the project included the president of the Bovoni homeowners association, the director of the St. John Community Foundation, environmental activists, and concerned private citizens. Their main concern was this project did not address the waste management problem in the Virgin Islands because current dumping sites would continue to leach toxic effluent, and the project would only account for a small percentage of the waste generated on the islands. Additionally, the opponents of the plant highlighted the potentially deleterious environmental and public health effects of the plant.

The hearings may or may not have had a lot to do with whether the plant is approved. The chairman of the committee indicated that the comments from the hearings would help the Senators make an informed decisions. Throughout our meetings with witnesses and senators and others, though, there was evidence that the decision may have already been made. In other words, the hearing’s real goal may be to let the public know that the Senators are seriously deliberating over the issue. If the Senate does approve the plant and the power purchasing agreement between WPA and Alpine, then further permits and laws may play a part in how the plant affects biodiversity.

Effects of the Proposed Incinerator on Biodiversity
The proposed incinerator could have a number of ramifications for biodiversity. The most direct effect will be felt through habitat destruction, as the proposed site is an undeveloped hillside. In order to build the site, the top of the hill will be leveled off. This could result in loss of species habitat, and some of the species affected include endangered animals, such as the Virgin Islands Tree Boa, and an endangered grass species. Construction will also result in erosion that will run into the ocean, possibly interfering with coral reef and other marine life, including endangered coral species. The long term effects from the operation of the plant mainly stem from pollution. The pollution could take the form of particulate matter, non-toxic releases, and toxic emissions. These emissions could fall down on the Virgin Islands and the surrounding seas, and possibly be swept through the air into more distant locations. More locally, the emissions can fall down onto the island and be absorbed into terrestrial and aquatic environments. The long-term buildup of toxics could affect endangered species on the island, and decrease habitat by disturbing vegetation. A secondary concern is what will happen to solid waste that results from the burning of ash and pet coke. This will have to be deposited somewhere, and may result in more habitat loss if an area must be cleared to place this waste.

Some existing laws could aid in combating the potential biodiversity loss from the incinerator. For instance, the Endangered Species Act could come into play because the incinerator could possibly result in a taking of endangered species. If the Fish and Wildlife Service were to get involved, the builders of the incinerator would have to be deal with the possible taking through mitigation activities. The Clean Air Act and Clean Water Act could also play a role in the regulation of the proposed incinerator. The Clean Air Act would have an effect by regulating the type of control technology that would have to be utilized in the emission of burned materials. Particulates will result from the burning of certain materials, and these are also regulated by the CAA. Additionally, because there is a national park nearby, the National Ambient Air Quality Standards (NAAQS) would probably apply; and so there would be a duty to keep the air of St. Thomas pristine. The Clean Water Act could play a 2 roles: first, the resulting solid waste would likely have to be dumped somewhere, and the incinerator would be subject to point source regulation. Second, the water could be affected by the burnt ash making its way into the watershed and could incidentally have an effect on the pollutant levels in the water regulated by the CWA.

Stay tuned for more tomorrow.