Five citizens concerned about unpermitted groundwater withdrawal from the Yorktown aquifer by poultry operations have contacted David Paylor, director of the Virginia Department Of Environmental Quality requesting relief, injunction, and mandamus until the operations are properly permitted. The group contends that overpumping from the Yorktown aquifer poses a threat to the potable water supply. As more of Yorktown is depleted, they contend, the more likely salt water from the bay and seaside will intrude and take its place.
The full text of the letter is printed below:
Re: Response to your February 23, 2018 letter regarding citizen request for action regarding un-permitted groundwater withdrawal by
CAFO’S within the Eastern Shore of Virginia’s Groundwater
Management Area, and request for relief, injunction, and mandamus.
Dear Director Paylor:
We are collectively writing to reply to your February 23, 2018 letter responding to our February 15, 2018 correspondence in which we respectfully requested that your department pursue an injunction and mandamus to prevent current and future withdrawal of groundwater from the Upper and Middle Yorktown aquifer by CAFO’s in Accomack County until and unless they have applied for and received a groundwater withdrawal permit as required by Virginia Law 62.1-258. This relief was requested pursuant to and allowed by 62.1-269 thru 270 of the State Water Control Board law.
Before we respond to several of the points you raised in your February 23, 2018 reply to our concerns regarding this instant issue, let us first say that we are grateful for and appreciative of the fact that you took the time and effort to craft such a comprehensive and informative reply, far more inclusive and forthcoming than replies often received or expected from state agencies in response to citizen concerns. We hope that we can continue an open dialogue as we move forward in our mutual effort to balance the needs of business and industry in a manner that ensures the protection of our natural resources, the environment, as well as public health, safety and welfare.
There are three (3) statements in your February 23, 2018 letter that we would like to offer a counter reply, and we do so with respect to you, your department staff, and with the realization that our concern for our groundwater sustainability on the lower Eastern Shore is probably just one of the many issues facing Virginia and your department at this time. However, given the unprecedented build-out of the poultry industry on the Eastern Shore of Virginia over the last eighteen (18) months or more, we are hoping our concerns rise to a level of priority that we feel they deserve. The three (3) points raised in your comprehensive reply to our February 15, 2018 to which we would like to offer a response are: l) “the DEQ values citizen input regarding the Upper and Middle Yorktown Aquifer” as contained on the 6 th line of the first paragraph of your reply; 2) “The final number of facilities and their groundwater withdrawal amounts is still under investigation” as stated on the 9th line of the first paragraph of your reply; 3) “Existing groundwater level monitoring on the Eastern Shore does not show an aquifer that is “draining” a statement made on page 2 in the first line of paragraph 3 of your February 23, 2018 letter to our group: and, 4) “When all of this information (on water withdrawal and use) is obtained it will be evaluated through modeling as part of the permit process to determine what the aquifer response is likely to be from this use” as stated on line 7 of the third paragraph on page 2 of your inclusive reply to the issues raised in our initial correspondence.
I. The DEQ “values” Citizen Input
As we pointed out in our initial letter to you dated February 15, 2018 we are well aware that you began your esteemed career in the field of environmental protection and decisionmaking for the Commonwealth of Virginia by serving on the State Water Control Board (herein referred to as the “SWCB”) in 1973. As such, there is probably not another public servant in government today that knows more about the legislative intent and underscoring code controlling on this Board regarding the goals and mission of state elected leaders to protect the surface and groundwater resources of the Commonwealth of Virginia. The legislative intent for the 1992 Groundwater Management Act and the protections envisioned by the Legislature in that regard can be found in 15.2-2200. There, the Legislature confirms our statement in the first paragraph of this reply that it is their mandate that the codes congruent with their laws “improve public health, safety, convenience, and welfare of their citizens”. The remainder of this section speaks to the need to also include in this balance the critical needs of commercial and industrial development, components necessary to also protect the sustainability of our economy.
Public involvement is critical to the SWCB’s deliberation on whether or not to issue a groundwater withdrawal permit for applicants seeking to use over 300,000 gallons of groundwater each month within a groundwater management area such as the Eastern Shore of Virginia Groundwater Management Area, one of only two (2) such areas in the Commonwealth.
Specifically, 9VAC25-610-160 and 9 VAC25-610-160 outline the procedures to be followed in the assessment and consideration of a draft groundwater withdrawal permit to be undertaken by the SWCB. That section requires the SWCB to “allow a period of 30 days following the date of public notice for interested persons to submit written comments on the tentative decision and to request a public hearing”.
Examples of this public notice and request for comment are: GW0073100, Shana Moore’s request for a groundwater withdrawal permit in Southampton County, Virginia with a public comment period spanning 3/8 — 4/9/2018; and also Erin Tisdale’s application by Virginia American Water for a groundwater withdrawal permit in County with a public comment period running from 3/7-4/6 2018. This public notice allows not only public comment, but invites citizens to request a public hearing on each individual groundwater withdrawal draft permit application.
As part of the public notice, a map is required to be submitted for citizen information and comment on the “Area of Impact”, a necessary component of the draft permit process and one intended to identify cones of depression, up-coning and localized as well as regional impacts from the proposed groundwater withdrawal request.
It is clear from the wording in 9VAC26-610-160 rules governing the requirements to be followed by both the applicant and the SWCB in assessing a proposal to withdraw groundwater pursuant to 62.1-258 (which states that it is illegal for ANY user to withdraw groundwater subject to the groundwater management act without first applying for and being granted a permit) that the legislature envisioned that groundwater withdrawal permits would be sought through individual permit applications, and evaluated on a case-by-case basis. This allows citizen comment and participation on proposed activities that may directly impact the availability of localized drinking water supplies if and when their residential drinking water well is in close proximity to the proposed withdrawal action. As proof of the legislature’s vision regarding this process, a reader of the referenced section of code above will consistently see the word “a” regarding the individual draft permit. It is difficult to understand how citizen input will be accounted for on an individual basis if, as we understand it, a mass permit procedure is being envisioned by your department for the many CAFO’s that are operating, or proposed to operate in Accomack County. Frankly, we do not think any attempt to involve the public in a mass public hearing or comment period on hundreds of industrial style poultry houses can have any legitimacy at all, not only from a practical standpoint, but from the perspective of soliciting input on localized impacts which would be difficult to cull from a mass modeling and permitting procedure.
In closing on this point, allowing public input on each individual application and its projected impacts on groundwater resources is the only true measure reflective of “value(ing) citizen input citizen input regarding the Middle and Upper Yorktown Aquifer”, and we are asking you to approach this important issue in that frame and manner.
Il. “The Final Number of facilities and their groundwater withdrawal amounts is still under investigation.”
According to a presentation to the Accomack County Planning Commission two weeks ago, approximately 580 poultry houses are projected to be operating in that county by 2023. {See the March 9, 2018 Eastern Shore Post, pg 6, by staff reporter Linda Cicoira.}. Aside from the data offered in that presentation, DEQ should have all of the information needed to assess groundwater withdrawal amounts by simply reviewing the Virginia Pollution Abatement General Permit Registration applications, the filing of which is a necessary first step before any work or serious consideration can begin on a proposed CAFO in the Commonwealth of Virginia. In that application procedure which was established pursuant to VR-680-14-22 and adopted by the SWCB on September 9, 1994, information on the waste generated in each CAFO as determined by the number of poultry houses per facility, the number of birds per flock, and the number of flocks per year of each poultry house in that particular facility must be revealed to the SWCB and the DEQ [ See OWRM Guidance Memorandum no 94-14 by DEQ’s Director Qf Water Resource Management dated November 19, 1994]. Simple math pertaining to the number of gallons of groundwater consumed per bird over their 43 day lifespan which industry standards reveal to be approximately 2 gallons/bird in addition to about 25% of that amount to be used for cooling and maintenance purposes should enable anyone to calculate the amount of water that will be used for each facility on a monthly basis. In short, assessing the total amount of groundwater that may be withdrawn from the Upper or Middle Yorktown aquifer should be a rudimentary task given the fact the department already has, and has had, all of the information they need to perform that critical assessment.
111. Existing groundwater modeling on the Eastern Shore of Virginia does not show an aquifer that is “draining”.If we disregard DEQ’s Mr. Hammond’s power point presentation to the Groundwater Committee of the A-NDPC during that organization’s January meeting in Accomac in which he presented a slide showing that the level of the Yorktown aquifer in the USGS 284′- deep Melfa monitoring well had dropped nearly 20 feet over the last 30 years, we must then turn to an even more troubling trend, and that is salt water intrusion combined with land subsidence on the lower Eastern Shore.
Additionally, while A-NDPC’s groundwater consultant Brit MacMillan’s assessment that “actual” groundwater withdrawals seem to be “sustainable” when measuring groundwater levels in a selective well near Perdue, when permitted levels are plugged into the groundwater modeling exercise, he projects that daily withdrawal could exceed recharge in the Upper Yorktown by over one (1) million gallons/day. Any credible assessment of potential environmental impacts, by rule, must be based on a “worst case scenario” and apply the “precautionary principal” as you well know, and with those two mandates factored into that assessment, under current conditions the Upper and Middle Yorktown aquifer would appear to be threatened in a manner deserving immediate response. Note that “existing” groundwater modeling on the Eastern Shore of Virginia does not take into account the estimated additional 3-4 million gallons/day of groundwater from our sole source aquifer that may be used by the new or existing unauthorized withdrawals by the poultry industry’s build out.
In your February letter to us you affirmatively state that existing groundwater modeling does not show an aquifer that is “draining”. Aside from the discussion above on withdrawal rates and removal of our “fresh” water from the Yorktown reserves, that indeed is a correct albeit misleading statement and probably will remain so for the next several centuries. As you well know, the Upper and Middle Yorktown aquifer will never “drain” once reaching a tipping point in relation to the seawater that surrounds this reserve on three sides, an event that may already be near at hand. Indisputable in this discussion is the fact that when the fresh water lens diminishes due to over-pumping our potable water resource will be replaced by sea water which because of density differences is more than willing to fill any void where up-coning,a cone of depression or lower overall level is created, especially near our coastal shores. In short, the Eastern Shore of Virginia will NEVER run out of water-not in our lifetime, the lifespan of our children, our great grandchildren or the many, many generations of our offspring that will hopefully follow. It is just that we will not be able to drink that water, irrigate our crops with it, or even hydrate our livestock or keep our meat processing plants viable and in production if this happens.
Just several weeks ago this last statement could have been easily dismissed as heresy, over reaction, or even a “scare tactic”. But on March 3, 2018 an article in The Atlantic called “The Slow -Motion Catastrophe Threatening 350-year old Farms” was published that offered a sobering real world look into what could be looming on the horizon for the Eastern Shore of Virginia. [https://theatlantic.com/science/archive/2018/03/maryland-salt-farms/554663/? utm source=atlfb].
This article reports on the salt water intrusion on the lower eastern shore of Maryland, an infiltration caused by a combination of sea level rise as well as subsidence (land sinking) and over-pumping of the aquifer beneath these low-lying plains. The article reports on findings by Keryn Gedan, a wetland biologist and Kate Tully, an agro-ecologist from the University of Maryland. [Attached as Exhibit 1].
One of the contributing factors to salt water intrusion along with over- pumping of the aquifer is the fact that sea level rise in the Chesapeake Bay is occurring at twice the rate of global average according to the researchers attributed in this Atlantic article. Additionally, the land is subsiding, causing salt water to seep into surficial soils, forcing some farmers to abandon affected fields for higher ground. Just in Somerset County alone it is estimated that around 4,000 acres of now-salt-saturated soils have been put into agricultural retirement programs. Note Somerset County is the sixth largest poultry producer with Accomack County nipping close at these rather dubious heels» One 30-acre field in the study that was abandoned because crops could not be grown on the salt-infused soil had six to seven parts per thousand of entrained salt, with it being reported that corn will not grow once salt is more than .8 per thousand in soil concentrations.
DEQ’s studies have found that salt water intrusion is already being detected on the Eastern Shore of Virginia, and the only tempering and limiting force to this phenomenon is a plentiful and healthy supply of fresh water in both the Upper and Middle Yorktown aquifers, So we must mutually ensure that these fragile lower aquifers are dedicated for human consumption and the use of the Columbia Aquifer is dedicated for all other uses, as envisioned in the SWCB regulation 62.1-263.
Much of the corn and soybeans that are grown on the lower Eastern Shore is destined to be used as animal feed, and a healthy portion of that is used to support the poultry industry. Therefore it is not only in the public’s best interest to ensure that subsidence, saltwater intrusion, and the depletion of our fresh water reserves in our lower aquifer is minimized to the of8
maximum practical extent possible, those measures that we promote also directly benefit the poultry industry. Therefore, the industry, citizens, and regulators should lay aside their perceived differences and work together to seek the balance that is necessary for the preservation of our mutual interests and welfare. That balance can only be assured by calling for a “time out” for any unauthorized withdrawal from the Upper and Middle Yorktown aquifer, allowing an incremental assessment of each proposed withdrawal through modeling and actual measurement through monitoring wells.
IV. “When all this information is obtained it will be evaluated through modeling as part of the permit process to determine what the aquifer response is likely to be from this use.”
As stated earlier, the legislative process that controls the actions of the SWCB specifically calls for incremental groundwater modeling and impact mapping. Thus, as each application is submitted to the SWCB and your agency for review and consideration of a draft groundwater withdrawal permit, the potential impact from that proposed use on both the regional and local groundwater resource supplies serves as an input into the groundwater withdrawal model. In that investigation of potential impacts on groundwater reserves, an associated groundwater impact map is generated so that citizens potentially affected by that withdrawal proposal can fully understand the implications of that proposed action.
We believe that anything other than a case-by-case incremental assessment of proposed groundwater withdrawal by each and every CAFO currently or proposed to use groundwater from the limited resources (compared to the surficial aquifer) of the Upper and Middle Yorktown cannot in any way, shape or fashion guarantee the due process of public involvement that the legislature intended when crafting the cornerstone of the law designed to protect and preserve our limited groundwater supplies in a Groundwater Management Area.
Simply put, unless it is determined which CAFO’s should be assessed first based on the time they began withdrawing groundwater from the Upper or Middle Yorktown aquifer in violation of 62.1-258, and a public notice issued establishing a public comment period and a chance to request a public hearing, there is no way that any other approach ensures the public involvement and consideration envisioned by code, law and regulation as expressed in 9VAC25-610-160 et.al.
Hence we would greatly appreciate a clarification of how this situation is proposed to be handled by your department, as there are many questions about how groundwater modeling can be reflective of the real-world impacts on our aquifer unless performed on a case-by-case and incremental basis. Additionally, allowing public input on each individual application and its projected impacts on groundwater resources is the only true measure reflective of “valu(ing) citizen input regarding the Middle and Upper Yorktown Aquifer”, as argued and presented in our first point in this missive.
IV. Conclusion: We must renew our call for an immediate mandamus or injunction on any current or future groundwater withdrawals from the Upper and Middle Yorktown aquifer by existing or proposed CAFO’s in Accomack County until and unless each and every one of these facilities has applied for and received a groundwater withdrawal permit, with the caveat the any current flocks that are bein raised should be a lowed to reach matur’
As we presented in our February 15, 2018 letter to you, the law regarding withdrawal of groundwater exceeding 300,000 gallons/month in a groundwater management area explicitly states that it is “illegal” to begin the withdrawal or even to attempt the withdrawal without first applying for and receiving a groundwater withdrawal permit. [62.1-2581. Penalties for violating the terms of that directive are severe. 162.1-269-701.
We are not promoting or advocating for any remedy that would unduly harm or impinge upon the poultry industry and therefore would like to amend our demand as requested in our February 15, 2018 letter. This instant amendment would have you consider allowing any flock that is currently in production in poultry houses that are operating in violation of 62.1-258 to reach maturity and to complete their life cycle as envisioned by the grower and the integrator. Of course that was what we originally assumed would be the process initiated by your department if our request was granted, and we did not feel that it was necessary to include that condition. However, subsequent to our February 15, 2018 request for an injunction against future water use by un-permitted facilities until each facility had applied for and received a permit to withdraw water from the aquifer, a representative from the poultry industry tried to create the impression that we were advocating for the euthanization of hundreds of thousands of chickens that were being raised in the unauthorized (from a groundwater withdrawal perspective) industrial poultry houses by abruptly cutting off their water supply. Statements like that are only meant to divide and drive wedges between the growers, the integrators, and the citizens who, in reality, seek to mutually co-exist. Regardless, we appreciate the opportunity to clear up any misconception regarding our request, which is in reality a request to merely respect and uphold the law and code governing groundwater withdrawal in an established groundwater management area.
In closing, while we greatly appreciate your February 23, 2018 response to our earlier letter, we feel that given the information bearing directly on this issue that has surfaced since our exchange ( i.e. the number of poultry houses proposed in Accomack County and the Atlantic article on salt water intrusion, sea level rise, and subsidence on the lower Eastern Shore), we feel our request for mandamus and injunction is even more warranted than it was just a few short weeks ago.
Let us once more assure you that what we are requesting is not meant to obstruct,impinge upon, or unduly harm the poultry industry or its associated support industries. We simply seek to strike a balance between the protection and sustainability of our limited and threatened natural resources as it pertains to a sustainable drinking water supply and necessary economic solvency and growth. We are confident that, working together with your department, the integrators, and the growers, that balance can be achieved, maintained, and preserved.
Thank you again for your attention to this matter. We look forward to keeping an open, honest, and productive dialogue on this critical issue as your department continues to work on this matter.
These “Five Citizens” should be commended for their insightful, intelligent and well researched letter to David Paylor, director of the Virginia Department of Environmental Quality. If more letters like this one piled up on Director’s desk in ALL departments, then there might be some thought-provoking discussion taking place, instead of folks just trying to figure out how to infuse more money into a local economy. I am not whole-heartily against the influx of money, but I am against the consequences of that influx. And I am against an aggressive and tone-deaf method of Board of Supervisors’ (Accomack County’s Board – not Northampton’s Board) of passing permitting without considering the health risks and the dangers to environmental risks and consequences. The practice of five hundred and eighty CAFO’s operating within the upper reaches of the aquifer, is akin to “poisoning the well”. Maybe not today, maybe not for another five or ten years. But it’s not a matter of “If”, it is a matter of “When”. And then, cost of fresh water will skyrocket. The cost of health care will affect every pocket. Will the infusion of “fast” cash be worth the total ticket costs? I hardly think so.
Letters such as these should be flooding every desk of every person who controls these decisions. From the local farmers and managers of the CAFO’s, to the presidents of Perdue and Tyson combined. Every DEQ and every board member to every town mayor and town boards should be alerted. These two “Blue Chip” market members that just happen to “process” chicken, don’t readily care about local populace water consumption. They quite honestly care only for the amount they can use during the course of the run of chicken and by-product they are processing at any given time. Once that water supply is tainted, contaminated with salt-water or brine or poisoned by the waste product of their own growers…they will just move on. When the water is gone, so will be the jobs. So, also, will be a stable living situation. The missteps created today, will be the final choice, chosen for tomorrow.
If, my water was captured from a well on the Eastern Shore, and was used for bathing, washing clothes, cooking and cleaning dishes and that home…I would think very seriously about what is happening in your backyards. Look at the rate of cancers, compared to other areas. Research what locals in Somerset County, Maryland have been reporting for years. Research what Penn State, University of Michigan and the University of Iowa reports have been saying about health risks of CAFO’s. The more you know now, the better you can manage your own resources. The key is balance. The tone of the letter, toward the end, speaks of this. The intent is not to bring down the economy of these two processing plants. The intent is to ensure that good stewardship takes place and that the people of the Eastern Shore can be guaranteed a quality state of living with clean water and air for generations to come. Now is the time, to question that reality. Question those who are directing this. Do so, until you are satisfied with their answers.
What an excellent resource for the public this newspaper is.
This is real grass-roots citizenship here, both on the part of these letter writers and the Cape Charles Mirror itself.
Here to the north of you, these same issues never see the light of day in the press.
What a different world it would be to the north of you if we too had a Cape Charles Mirror to air our grievances in.
For a time we did, but it was abruptly ended and disappeared from cyber-space right after this post of mine which was a part of an on-going series written by myself as a public health engineer on the subject of who was responsible for a groundwater contamination issue affecting children up this way where I am, to wit:
TALK RADIO 1300 on June 15 2016
These people are asking for a corrupt system to investigate itself to end the corruption that caused their drinking water to become contaminated with PFOA, as if that corrupt system will somehow take an action against itself to clean itself up and end that corruption which caused their drinking water to become contaminated with PFOA.
It will be very interesting to see how that all works out.
My bet would be a white-wash if there ever were any hearings held.
Let’s look back at the record here for a moment.
In the NEWS 10 ABC article “State officials respond to NEWS10 questions about Hoosick Falls water contamination” by Lindsay Nielsen published roughly five (5) months ago on February 26, 2016, where NEWS10 ABC spoke face-to-face with state officials to get questions answered about the water contamination in Hoosick Falls, we had New York State Director of State Operations Jim Malatras, the same one who met with the Hoosick Falls folks today, telling us “Just so we’re clear, we followed the EPA standard,” and “The village followed the EPA standard.”
Does anyone think he is going to retract that statement now in some type of hearing?
And who is it that is going to stand up on the witness stand to refute what he is saying?
Howie Zucker?
Basil Seggos?
And have we already forgotten Republican Senate majority leader John Flanagan being quoted in POLITICO on Feb. 18, 2016 as saying “the reality is” that neither he nor Andy Cuomo cares about who may be to blame for things in Hoosick Falls?
Is he going to suddenly start caring today because of Steve McLaughlin bringing these Hoosick Falls people around to see New York State Director of State Operations Jim Malatras, who has already told us months ago “Just so we’re clear, we followed the EPA standard,” and “The village followed the EPA standard?”
Stay tuned, people, anything is liable to happen here now, so don’t touch that radio dial.
Paul Plante, NYSPE
end quotes
Again, kudos to the people who wrote that comprehensive letter and the Cape Charles Mirror for making it public.
I have been involved with groundwater issues to the north of you since in or about 1975.
Since that time, I have become licensed as a professional engineer in New York state as well as qualified by examination to practice as an associate level public health engineer in NYS.
In NYS, 10 NYCRR 11.100 (NYS Code of Rules and Regulations) defines public health engineer as follows:
The term public health engineer shall mean a person who applies engineering principles for the detection, evaluation, control and management of those factors in the environment which influence the public’s health.
end quotes
As an associate public health engineer, I was responsible for the health of 154,000 people in a county health department.
Based on that experience, as I consider what is going on down here in Virginia, as exemplified by this letter above, as well as in corrupt New York State, where we are engaged in a race to the bottom with third-world ****holes with no regulations to protect public health, so we can attract bidness away from them, these words from our Penal Law keep coming back to me, to wit:
“Under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk to another person ….”
end quotes
Does that phrase “evincing a depraved indifference to human life” apply to the conduct of your DEQ down here?
Seems so, does it not?
Reading through this citizen’s letter in an effort to absorb its content, I came across this following, which frankly has set me to wondering, given the political nature of these kinds of appointments, as opposed to positions earned by merit through examinations:
“As we pointed out in our initial letter to you dated February 15, 2018 we are well aware that you began your esteemed career in the field of environmental protection and decisionmaking for the Commonwealth of Virginia by serving on the State Water Control Board (herein referred to as the “SWCB”) in 1973.”
“As such, there is probably not another public servant in government today that knows more about the legislative intent and underscoring code controlling on this Board regarding the goals and mission of state elected leaders to protect the surface and groundwater resources of the Commonwealth of Virginia.”
end quotes
The dude is a political appointee – why is there an assumption that he knows anything at all about the legislative intent and underscoring code controlling on the Water Board regarding the goals and mission of state elected leaders to protect the surface and groundwater resources of the Commonwealth of Virginia?
Isn’t the purpose of this second letter to remind this dude that he essentially blew them off in his first letter?
As to his “esteemed career” in the field of environmental protection and decisionmaking for the Commonwealth of Virginia, this is what the Virginia DEQ has to say about it:
About the Director
DEQ Director, David K. Paylor
David K. Paylor was appointed director of the Virginia Department of Environmental Quality by Governor Terry McAuliffe in January 2014 and previously was appointed by Governor Bob McDonnell in 2010.
He originally was appointed director by Governor Timothy Kaine in 2006.
Paylor’s career began in 1973 with the State Water Control Board and continued with DEQ.
He began as a field biologist and held a variety of positions after that as an aquatic ecologist, water resources manager, director of petroleum programs, and director of operations.
Paylor is president of the Environmental Research Institute of the States.
Paylor graduated from Duke University with a bachelor’s degree in zoology and received his master’s degree from Oregon State University in fisheries science.
end quotes
Where from that does he become an expert on groundwater withdrawals?
Or doesn’t he really have to be?
And a more relevant question is how did he come to the notice of Governor Timothy Kaine in 2006?
What exactly was it about David Paylor that made Governor Timothy Kaine in 2006 pick him out ,of the field to make him DEQ Director?
Are we to believe that politics played no part in that?
Wouldn’t it be nice for all involved if that were so.
Getting back to the DEQ site, it continues:
For more than 40 years, Paylor has promoted environmental stewardship in his roles within Virginia’s government.
end quotes
If that is so, then why are we reading this letter above to him today, where he has apparently just blown off some local residents who seem more committed to environmental stewardship than is David Paylor.
The DEQ site continues as follows:
He is regarded as an influential leader who has helped the state face some of its greatest environmental challenges, including the effort to address nutrient pollution in the Chesapeake Bay watershed and implementation of the Bay Total Maximum Daily Load (TMDL).
His dedication to stakeholder engagement and collaborative problem solving has led to significant achievements in the areas of renewable energy permitting, water supply and groundwater management.
end quotes
Ah, yes, groundwater management!
But if that is the case, then why the need for this above letter to remind him of his duty to the people of Virginia?
So where does this buck really stop?
On whose desk does it finally land?
Does it stop with David Paylor, the director of the Virginia DEQ?
Or does it go beyond him?
And how can we ever tell?
For that answer, all we need do is to refer to Virginia Code https://law.justia.com/codes/virginia/2017/title-10.1/chapter-11.1/ Title 10.1, Subtitle II, Chapter 11.1, Article 1, § 10.1-1185, Appointment of Director; powers and duties of Director, where we find as follows:
The Department (of Environmental Quality) shall be headed by a Director appointed by the Governor to serve at his pleasure.
end quotes
“Serve at the pleasure of” in politics is translated as “serves to give pleasure to,” so that all actions of DEQ director David Paylor go back to the office of the Virginia governor, so that if David Paylor happens to be turning his back on the law, the assumption would have to be that he was doing so to give pleasure to the governor so that Paylor could keep his job.
“Serves at the pleasure of” means the holder of the position can be summarily removed at a moment’s notice.
Getting back to the law as written, it states:
The Director shall be an experienced administrator with knowledge of environmental protection and government operation and shall have demonstrated expertise in organizational management and environmental science, environmental law, or environmental policy.
The Director of the Department of Environmental Quality shall, under the direction and control of the Governor, exercise such power and perform such duties as are conferred or imposed upon him by law and shall perform such other duties as may be required of him by the Governor and the following Boards: the State Air Pollution Control Board, the State Water Control Board, and the Virginia Waste Management Board.
end quotes
Focus your attention on that last sentence, people, as to where the buck really does stop here: “The Director of the Department of Environmental Quality (David Paylor) shall, under the direction and control of the Governor ….”
Under the direction and control of the governor!
So, in essence, Virginia Director of Environmental Quality David Paylor is little more than a finger puppet on one of the digits of your governor’s hand.
Thus, it would seem that this letter should really be addressed to your governor, with the question of why he is allowing this travesty to happen given that David Paylor is under his direction and control.
And that letter should in turn make reference to Virginia Code § 10.1-1183. Creation of Department of Environmental Quality; statement of policy, as follows:
It shall be the policy of the Department of Environmental Quality to protect the environment of Virginia in order to promote the health and well-being of the Commonwealth’s citizens.
The purposes of the Department are:
1. To assist in the effective implementation of the Constitution of Virginia by carrying out state policies aimed at conserving the Commonwealth’s natural resources and protecting its atmosphere, land and waters from pollution.
2. To coordinate permit review and issuance procedures to protect all aspects of Virginia’s environment.
3. To enhance public participation in the regulatory and permitting processes.
4. To establish and effectively implement a pollution prevention program to reduce the impact of pollutants on Virginia’s natural resources.
5. To establish procedures for, and undertake, long-range environmental program planning and policy analysis.
6. To conduct comprehensive evaluations of the Commonwealth’s environmental protection programs.
7. To develop uniform administrative systems to ensure coherent environmental policies.
8. To coordinate state reviews with federal agencies on environmental issues, such as environmental impact statements.
9. To promote environmental quality through public hearings and expeditious and comprehensive permitting, inspection, monitoring and enforcement programs, and provide effective service delivery to the regulated community.
10. To advise the Governor and General Assembly, and, on request, assist other officers, employees, and public bodies of the Commonwealth, on matters relating to environmental quality and the effectiveness of actions and programs designed to enhance that quality.
11. To ensure that there is consistency in the enforcement of the laws, regulations, and policies as they apply to holders of permits or certificates issued by the Department, whether the owners or operators of such regulated facilities are public sector or private sector entities, including the development of electronic recordkeeping and document transmittal systems that encourage the use of electronic methods in performing the Department’s business as a means of furthering both resource conservation and transaction efficiency.
As is the case in corrupt New York state, there is a lot of confusion as to whose responsibility it really is to protect the public’s health, and the answer in both states is it is not the Department of Environmental Quality in Virginia, nor is it the Department of Environmental Conservation in NYS.
Why?
Because the protection of the public’s health requires the judgment of a medical doctor as a commissioner, not a political hack.
And that brings us to Title 32 of the Virginia Code where in § 32.1-2, Finding and purpose, we are informed as follows:
The General Assembly finds that the protection, improvement and preservation of the public health and of the environment are essential to the general welfare of the citizens of the Commonwealth.
For this reason, the State Board of Health and the State Health Commissioner, assisted by the State Department of Health, shall administer and provide a comprehensive program of preventive, curative, restorative and environmental health services, educate the citizenry in health and environmental matters, develop and implement health resource plans, collect and preserve vital records and health statistics, assist in research, and abate hazards and nuisances to the health and to the environment, both emergency and otherwise, thereby improving the quality of life in the Commonwealth.
This comprehensive program of preventive, curative, restorative, and environmental health services shall include prevention and education activities focused on women’s health, including, but not limited to, osteoporosis, breast cancer, and other conditions unique to or more prevalent among women.
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Focus in on these words: For this reason, the State Board of Health and the State Health Commissioner, assisted by the State Department of Health, shall administer and provide a comprehensive program of environmental health services.
According to the Virginia Department of Health website, the Environmental Health Division protects public health by preventing the transmission of disease through food, water, and sewage, and works closely with other agencies to protect the environment.
As to appointment of the Virginia Health Commissioner Virginia Code Title 32, § 32.1-17. Appointment of Commissioner; qualifications; term, provides as follows:
A. There shall be a State Health Commissioner appointed by the Governor, subject to confirmation by each house of the General Assembly.
The Commissioner shall be a physician licensed to practice medicine in this Commonwealth and shall be certified by the American Board of Preventive Medicine or a recognized board in a primary care specialty as approved by the American Board of Medical Specialties, experienced in public health duties, sanitary science and environmental health, and otherwise qualified to execute the duties incumbent upon him by law.
B. The Commissioner shall be appointed for a term coincident with that of the Governor and shall serve at the pleasure of the Governor.
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And there we are back to that phrase “shall serve at the pleasure of the Governor,” which makes your Commissioner of Health another finger puppet for the governor to control to your detriment.
Contrast that with New York Public Health Law § 204, Commissioner; appointment; term of office, as follows:
The commissioner shall be appointed by the governor, by and with the advice and consent of the senate and shall hold office until the end of the term of the governor by whom he was appointed and until his successor is appointed and has qualified.
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Notice that the words “shall serve at the pleasure of the Governor” are missing there, as they should be.
Why?
Because the public’s health should not be a political football for some hack politician serving as governor to kick around, as seems to be the case in Virginia.
I attribute that difference to Article XVII of the NYS Constitution which provides as follows in section 3, to wit:
§3. The protection and promotion of the health of the inhabitants of the state are matters of public concern and provision therefor shall be made by the state and by such of its subdivisions and in such manner, and by such means as the legislature shall from time to time determine.
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It does not appear that Virginia has a similar constitutional provision regarding protection and promotion of the health of the people of Virginia.
However, the Bill of Rights of the Virginia Constitution has some strong wording that these aggrieved citizens should consider, to wit:
Article I. Bill of Rights
Section 2. People the source of power
That all power is vested in, and consequently derived from, the people, that magistrates are their trustees and servants, and at all times amenable to them.
Section 3. Government instituted for common benefit
That government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation, or community; of all the various modes and forms of government, that is best which is capable of producing the greatest degree of happiness and safety, and is most effectually secured against the danger of maladministration; and, whenever any government shall be found inadequate or contrary to these purposes, a majority of the community hath an indubitable, inalienable, and indefeasible right to reform, alter, or abolish it, in such manner as shall be judged most conducive to the public weal.
Section 15. Qualities necessary to preservation of free government
That no free government, nor the blessings of liberty, can be preserved to any people, but by a firm adherence to justice, moderation, temperance, frugality, and virtue; by frequent recurrence to fundamental principles; and by the recognition by all citizens that they have duties as well as rights, and that such rights cannot be enjoyed save in a society where law is respected and due process is observed.
That free government rests, as does all progress, upon the broadest possible diffusion of knowledge, and that the Commonwealth should avail itself of those talents which nature has sown so liberally among its people by assuring the opportunity for their fullest development by an effective system of education throughout the Commonwealth.
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Perhaps DEQ Director David Paylor needs a reminder that these Constitutional provisions exist in Virginia, and that as a citizen of Virginia, regardless of his title as DEQ director, he too has duties as well as rights, and that such rights cannot be enjoyed save in a society where law is respected and due process is observed.
He should also be reminded that government in Virginia is instituted for the common benefit, protection, and security of the people of Virginia, and the communities of Virginia, and of all the various modes and forms of government, that is best which is capable of producing the greatest degree of happiness and safety, and is most effectually secured against the danger of maladministration.
And if he wonders what maladministration is, tell him that maladministration is about the conduct of public officers and the practices, policies and procedures of public authorities that result in the substantial mismanagement of public resources, or the substantial mismanagement of official functions, which is the subject of this letter above, when you come right down to it.
Remind him as well that maladministration also includes conduct that might be described as incompetent or negligent which again seems to be the subject of this letter above.
See if he gets the message, and if your governor does, as well.
I remember back in the early 80s and before, when American Original clam house was operating in Oyster, when they used a lot of water, residents of Oyster had problems getting enough water at their homes.
Don’t forget how much chicken your beloved pets eat several times a day in their dry/wet food.
Slide, dude, what it is!
Say, you’re a seasider and a savvy dude in here as a result, did you know that in 1969, during the 1969 Vietnam War draft lottery, when I myself was a grunt in Viet Nam, John Robert Bolton, a noted warhawk who is now Trump’s national security advisor whose political views are nationalist and conservative, and similar to those of Donald Trump, and who ran the Students For Goldwater campaign in 1964, at the McDonogh School in Owings Mills, Maryland, drew number 185, and as a result of the Johnson and Nixon administrations’ decisions to rely largely on the draft rather than on the reserve forces, joining a Guard or Reserve unit became a way to avoid service in the Vietnam War, so warhawk Bolton enlisted in the Maryland Army National Guard in 1970 rather than wait to find out if his draft number would be called.
After serving in the National Guard for four years, he served in the United States Army Reserve until the end of his enlistment two years later.
He wrote in his Yale 25th reunion book “I confess I had no desire to die in a Southeast Asian rice paddy.”
“I considered the war in Vietnam already lost.”
In an interview, Bolton discussed his comment in the reunion book, explaining that he decided to avoid service in Vietnam because “by the time I was about to graduate in 1970, it was clear to me that opponents of the Vietnam War had made it certain we could not prevail, and that I had no great interest in going there to have Teddy Kennedy give it back to the people I might die to take it away from.”
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What horse****, don’t you think, slide, dude, but that excuse is as good as any, I suppose, and it wouldn’t be looked askance at by people like Bill or Hillary Clinton, or Donald Trump, so it works for him.
And how many American lives did he save by not going, where he likely would have been one of those ****-ups who get other people killed, but never themselves?
He’s a war hawk so long as it doesn’t have to be his blood that is being shed.
As to this kerfuffle about the ground water, slide, do you feel like many in America that it is past time to can all these regulations that are intended to protect people because they take profits away from business and the economy?
Shouldn’t we really take America back in time to the days of Jay Gould and the “Robber Barons,” those late 19th-century American businessmen who used unscrupulous methods to get rich?
Isn’t that really the true American Way right there, and to hell with these people and their water?
If they didn’t want water problems, then why are they living next to these massive chicken-growing operations?
Getting back to making America great by taking us back in time to the mid-18oos, the metaphor “Robber Baron” appeared as early as February 9, 1859, when The New York Times used it to characterize the unethical business practices by Cornelius Vanderbilt.
Did you know that, slide?
Cornelius Vanderbilt, of course, was an earlier-day Donald Trump, so it is no wonder that Trump today wants to take us back to those days.
As to the metaphor “Robber Baron,” historian T.J. Stiles says the metaphor, “conjures up visions of titanic monopolists who crushed competitors, rigged markets, and corrupted government.”
“In their greed and power, legend has it, they held sway over a helpless democracy.”
Doesn’t that make you feel all warm and squishy inside, slide, knowing that thanks to Trump, those days will soon be back all over again?
Getting back to when America was really great, Charles R. Geisst says, “in a Darwinist age, Vanderbilt developed a reputation as a plunderer who took no prisoners.”
That is so Donald Trump today, is it not?
Hal Bridges said that the term represented the idea that “business leaders in the United States from about 1865 to 1900 were, on the whole, a set of avaricious rascals who habitually cheated and robbed investors and consumers, corrupted government, fought ruthlessly among themselves, and in general carried on predatory activities comparable to those of the robber barons of medieval Europe.”
The term combines the pejorative senses of criminal (“robber”) and aristocrat (“barons” having no legitimate role in a republic).
Hostile cartoonists might dress the offenders in royal garb to underscore the offense against democracy, but hey, what the heck, ain’t it, slide, because in truth, democracy in this country has been dead for quite some time.