Energy & Environmental Law Blog : Energy & Environmental Lawyer & Attorney : Vorys, Sater, Seymour and Pease Law Firm : Oil, Gas & Green Technology

On Friday, August 13th USEPA published its proposed IUR Modifications rule in the Federal Register, beginning a 60-day comment period.  We previously discussed the prepublication notice of this coming rule.

According to USEPA’s statement:

The proposal delineates a number of improvements for 2011 reporting, including requiring electronic reporting via the e-IURweb of all IUR data, making reporting easier and more accessible to all potential reporters. The proposal would also modify the reporting of manufacturing, processing and use data for most chemicals and would make changes to specific data elements, including the addition of other production volume data that would require production volume for all years since the 2006 reporting year. It would also require a greater amount of substantiation for confidential business information claims. Data collected under the final rule would provide improved information for both EPA and the public so they can better identify and, where appropriate, take steps to manage risks associated with TSCA chemical substances. Read the fact sheet.

Note to inorganic chemical manufacturers: Inorganic chemicals are no longer partially exempt from the IUR rule. The partial exemption was a one-time exemption for 2006 reporting only
 

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USEPA has published a pre-publication notice of a proposed rule amendment to TSCA's Inventory Update Reporting (IUR) rule, promulgated under Section 8(a) of TSCA.  The IUR rule requires manufacturers (including importers) of certain chemical substances to report information about the manufacturing, processing and use of those chemicals.  The proposed changes include:

• Requiring electronic reporting
• New definition for manufacture and site
• To shorten the reporting period to every 4 years instead of every 5 years
• Modify the method used to determine what a manufacturer or importer is subject to reporting
• To eliminate the 300,000 lb. processing and use threshold
• To eliminate the 25,000 lb. reporting threshold for certain chemicals
• Disallowing confidentiality claims for processing and use data identified as not "known to or reasonably ascertainable by"

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The NYT is reporting that the New York state senate has passed a moratorium on the use of hydraulic fracturing in the drilling of horizontal wells.  "While the measure cannot become law before the state Assembly passes a similar bill, and that chamber is not expected to take up the issue until September, environmentalists said the vote was significant in that it gave state officials more time to examine safety issues."

Not everyone is impressed, however:  "Pennsylvania’s top-ranking environmental official suggests New York should stop buying natural gas produced in the Keystone State."  He apparently used the phrase, "moral high horse."  And fun was had by all.

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If you are following oil spill news around the country, you know that a 30-inch pipeline owned by Enbridge, Inc., ruptured in Marshall, Michigan, releasing hundreds of thousands of gallons of crude oil into Talmadge Creek, a waterway that feeds into the Kalamazoo River (as reported by U.S. EPA and others).  The Detroit Free Press is reporting that Enbridge is working proactively to alleviate neighbor concerns:  "Enbridge Inc. offered to buy up to 200 homes in the 30-mile-long zone at their full-list price or appraised value before the spill to ease homeowners’ concerns."

For more, see here (U.S. EPA, Region 5 website) and here (Detroit Free Press).

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The Texas Commission on Environmental Quality (TCEQ) has announced that it is proposing new rules to amend the air emissions regulations that govern oil and gas facilities.  "The rule proposal updates administrative and technical requirements, and includes enforceable monitoring, sampling, and record keeping requirements. This proposal helps the agency make certain that oil and gas facilities are properly operated and maintained, in order to continue to ensure that public health is protected."  Until those rules are formally published next week, however, their precise scope and burdens remain unclear.

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U.S. EPA is continuing its review of how it regulates emissions from oil and natural gas facilities.  The latest step, public meetings "to establish a dialog among government, the affected industry, and other interested members of the public."  More:

EPA will be conducting public meetings to provide an opportunity for public involvement during EPA's review of air regulations affecting the oil and natural gas industry. The review in progress covers oil and natural gas exploration and production, as well as natural gas processing, transmission, storage, and distribution. The primary purpose of these meetings is to establish a dialog among government, the affected industry, and other interested members of the public early in the rule development process, as well as to receive information that may be useful to EPA in its review. At these meetings, EPA will explain the regulatory process, provide a brief overview of its regulatory review, solicit information that may be useful to EPA in the review of these rules, and provide an opportunity for participants to ask questions and submit comments.

Note that the meetings will occur in TX and CO on August 2nd and 3rd.  The related docket is EPA-HQ-OAR-2010-0505.

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U.S. EPA has denied multiple petitions challenging its finding that climate change is based on sound science, according to this press release.  "After months of serious consideration of the petitions and of the state of climate change science, EPA finds no evidence to support [the petitioners'] claims. In contrast, EPA’s review shows that climate science is credible, compelling, and growing stronger."

Did you expect a different result?  For more from U.S. EPA, see here.

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U.S. EPA has released an interim guidance document on how to incorporate environmental justice issues into its rulemaking process.  From the related press release:  "The document, Interim Guidance on Considering Environmental Justice During the Development of an Action, seeks to advance environmental justice for low-income, minority and indigenous communities and tribal governments who have been historically underrepresented in the regulatory decision-making process. The guidance also outlines the multiple steps that every EPA program office can take to incorporate the needs of overburdened neighborhoods into the agency’s decision-making, scientific analysis, and rule development. EPA staff is encouraged to become familiar with environmental justice concepts and the many ways they should inform agency decision-making."

For more, see here.

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U.S. EPA's Science Advisory Board (SAB) Staff Office is seeking public recommendations of technical experts to assist in reviewing EPA's hydraulic fracturing study plan.  "Selection criteria to be used for Panel membership include: (a) Scientific and/or technical expertise, knowledge, and experience (primary factors); (b) availability and willingness to serve; (c) absence of financial conflicts of interest; (d) absence of an appearance of a lack of impartiality; and (e) skills working in committees, subcommittees and advisory panels; and, for the Panel as a whole, (f) diversity of expertise and viewpoints. EPA values and welcomes diversity. In an effort to increase diversity, we seek nominations of women and men of all racial and ethnic groups."

Nominations are due August 10, 2010.

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U.S. EPA has asked for comments on how to account for greenhouse gas emissions generated from bioenergy and other biogenic sources.  It stated:  "The fact that the Tailoring Rule did not take final action one way or another concerning such an exclusion does not mean that EPA has decided there is no basis for treating biomass CO2 emissions differently from fossil fuel CO2 emissions under the Clean Air Act’s PSD and Title V Programs."

Comments are due September 13, 2010.

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Yesterday, proposed legislation on grants for residential and commercial solar energy systems received support from the Senate Energy and Natural Resources Committee. The proposed legislation (S.3460), entitled the 10 Million Solar Roofs Act of 2010, would set a national goal for installation of solar electric or water heating systems over ten years, with $250 million in competitive grants to be authorized in 2012.

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The Barnett Shale Energy Education Council recently released an air study showing no harmful levels of benzene or other compounds being emitted from natural gas sites in Fort Worth and Arlington, Texas.  For more, including a copy of the report, see here.

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Federal spill prevention control and countermeasure (SPCC) regulation has been at the forefront of recent U.S. EPA regulatory initiatives (see here, e.g.).  The U.S. House Committee on Energy and Commerce is working on legislation that suggests we may see even more changes to the SPCC Rule in the near future.  See here (linking to H.R. 5626, known as the "Blowout Prevention Act of 2010" and - as drafted today - which would apply to certain non-marginal onshore production wells).

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Mark Twain wrote:  "It ain't what you don't know that gets you into trouble. It's what you know for sure that just ain't so."  As an example, the NYT is reporting that most tar balls washing up on the Texas shore are not related to the Gulf spill, contrary to earlier opinion.

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U.S. EPA has issued a proposed rule on the confidentiality determinations it believes are appropriate for the data and information submitted as part of a company's compliance with its Mandatory Greenhouse Gas Reporting Rule obligations.  Among other things, "EPA is soliciting comment on several key issues related to the confidentiality determinations and proposed amendments, such as whether the proposed data categories are appropriate and reasonable, whether there are unique circumstances that would warrant a limited process for a facility to seek reconsideration of a final determination of non-confidential status when it submits its information, whether alternative interpretations of emission data would be appropriate, and whether there are any approaches for delaying publication of data elements that would ease potential concerns by industry while enabling EPA to meet our obligations under FOIA and CAA."

Comments are due September 7, 2010.

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The Ohio EPA's Division of Air Pollution Control has revised its February 19, 2010 memo that describes DAPC's approach to determining BAT for sources that qualify for the <10 ton/yr BAT exemption. The revised memo was issued on July 2, 2010 and is effective immediately.

The memo re-do was required by the U.S. District Court's February 2, 2010 decision in Sierra Club v. Christopher Korleski, Director of Ohio EPA, which required the Director to implement and enforce Ohio Administrative Code 3745-31-45 as contained in the USEPA approved State Implementation Plan.

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According to the provisions of a proposed consent decree filed July 6 (Sierra Club v. Jackson, N.D. Cal., No. 09-152), USEPA will issue residual risk emissions standards to address the risk posed by hazardous air pollutants emitted by 28 industrial source categories that have already had MACT standards issued.

Under the terms of the proposed settlement, the agency will issue the residual risk limitations for 27 source categories by Oct. 31, 2013, and for portland cement by June of 2018. The agency can also make a determination that no residual risk standards are needed for a specific category. The first set of six categories have a September 14, 2010 date set for proposal.

The suit was filed in January 2009, alleging that USEPA failed to meet the Clean Air Act’s (CAA) statutory duty to review national emissions standards for hazardous air pollutants (NESHAPs) for 28 categories of industrial facilities to determine if their emissions still posed a residual public health risk after MACT standards were imposed.

Sections 112(d)(6) and 112(f)(2) of the CAA require EPA to review emissions limits for various industrial source categories every eight years, taking into account newly available technology. Because MACT standards are technology-based and not risk-based, the drafters of the CAA were concerned that there might be a remaining risk even after the latest in technology was installed on HAP sources. In addition, they wanted to account for improvements in technology over time.

The following source categories are covered by the proposed agreement:

• aerospace manufacturing and rework facilities,
• chromium electroplating and anodizing,
• ferroalloy production,
• flexible polyurethane foam production,
• polycarbonate production,
• acrylic and modacrylic fibers production,
• marine vessel loading operations,
• mineral wool production,
• off-site waste recovery operations,
• pesticide active ingredient production,
• pharmaceuticals production,
• phosphoric acid,
• phosphate fertilizers,
• polyether polyols production,
• polymers and resins I,
• polymers and resins III,
• polymers and resins IV,
• portland cement manufacturing,
• primary aluminum,
• primary lead smelting,
• printing and publishing,
• pulp and paper production,
• secondary aluminum,
• secondary lead smelting,
• shipbuilding and ship repair,
• steel pickling process,
• wood furniture manufacturing, and
• wool fiberglass manufacturing.
 

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U.S. EPA has issued a final rule for the mandatory reporting of greenhouse gases from four additional sources:  magnesium production, underground coal mines, industrial wastewater treatment, and industrial waste landfills.

Moreover (from the press release):  "In a separate proposed rule, EPA is requesting public comment on which industry related GHG information would be made publicly available and which would be considered confidential. Under the Clean Air Act, all emission data are public. Some non-emission data, however, may be considered confidential, because it relates to specific information which, if made public, could harm a business’s competitiveness."  (Emphasis is ours.)  For more on that rule, see here.

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Natural gas is expected to double its share of the energy market, according to a study done by the Massachusetts Institute of Technology and reported on here by the NYT.  The article:  "The increase, the report concluded, will come largely at the expense of coal and will be driven both by abundant supplies of natural gas — made more available by shale drilling — and by measures to restrict the carbon dioxide emissions that are linked to climate change."

For more on the report, including links to a copy of the full report and related press release, see here (MIT).

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The U.S. District Court for the Eastern District of Louisiana issued a preliminary injunction today prohibiting the Interior Department from enforcing a six-month moratorium on all drilling in the Gulf of Mexico's Outer Continental Shelf in water at depths greater than 500 feet.  See Hornbeck Offshore Services, LLC v. Kenneth Lee "Ken" Salazar, Case No. 10-1663 (you can find copies of the court's decision and order here).  The court found, among other things, that the plaintiffs had established a likelihood of successfully showing that the Department acted arbitrarily and capriciously in issuing the moratorium:

After reviewing the Secretary’s Report, the Moratorium Memorandum, and the Notice to Lessees, the Court is unable to divine or fathom a relationship between the findings and the immense scope of the moratorium. The Report, invoked by the Secretary, describes the offshore oil industry in the Gulf and offers many compelling recommendations to improve safety. But it offers no time line for implementation, though many of the proposed changes are represented to be implemented immediately. The Report patently lacks any analysis of the asserted fear of threat of irreparable injury or safety hazards posed by the thirty-three permitted rigs also reached by the moratorium.

For more, see this article from the NYT.

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Today the USEPA published its revised primary ambient air quality rule (75 FR 35520) for sulfur dioxide.  A new 1-hour standard was set at a level of 75 parts per billion, based on the 3-year average of the 99th percentile of 1-hour daily maximum concentrations.  The previously existing 24-hour and annual primary standards were revoked. 

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Today the USEPA proposed two alternative options (75 FR 35128) for regulating coal combustion residuals ("CCR").  Under the first proposal, CCR would be listed as a special waste subject to RCRA subtitle C regulation when destined for disposal.  The second proposal would continue to regulate CCR under RCRA subtitle D by issuing national minimum criteria. 

This proposed regulation also would establish dam safety requirements to address structural integrity of surface impoundments to prevent catastrophic releases of CCR.  Lastly, EPA hopes to refine its regulations regarding the beneficial use of CCR.

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We posted earlier on the hydraulic fracturing study that U.S. EPA plans to do (see here, e.g.).  EPA has announced that it will be holding four public meetings around the country to gather further input (including one on July 22 from 6 p.m. at the Hilton Garden Inn in Canonsburg, Pa.).

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On June 14, USEPA gave notice of a July 9, 2010 "listening session" related to its external review draft document entitled "EPA's Reanalysis of Key Issues Related to Dioxin Toxicity and Response to NAS Comments."  The draft document includes new analyses on potential human effects from exposure to 2, 3, 7, 8 tetrachlorodibenzo-p-dioxin (TCDD).  The draft document was also provided to EPA's Science Advisory Board for peer review.

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The NYT is reporting that the U.S. Conference of Mayors is supporting a mandatory "green" construction code designed to reduce the impact of commercial buildings on the environment.  The article goes on to note:  "A handful of states and cities already require new public buildings to meet sustainable design benchmarks, such as the U.S. Green Building Council's LEED (Leadership in Energy and Environmental Design). Meeting such environmental benchmarks is voluntary for the vast majority of private buildings, however."

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Take the oil spill forecasts you hear with a grain of salt.  This article from the Houston Chronicle reports on the related uncertainties and warns:  "Predicting the long-term trajectories, it seems, is therefore a riskier business than even long-range hurricane forecasting."  Sounds like good advice.

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The Philadelphia Inquirer is reporting on the loss of state solar tax credits despite homeowner reliance when installing the related equipment.  "Turns out that the money for those tax credits - about $50 million over eight years from the state's general fund - was eliminated as part of the 101-day budget duel last fall."

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On June 3, 2010, the USEPA issued its final Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule (75 FR 31,514).  On the very same day, a legal foundation, House Republicans, businesses and business organizations sued the EPA saying EPA does not have the authority to issue the new rule.

The tailoring rule phases the applicability criteria to determine which stationary sources become subject to GHG emission permitting requirements under PSD and Title V Clean Air Act programs.

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U.S. EPA has set a new health standard for sulfur dioxide (SO2).  Among other things, EPA is setting the one-hour SO2 health standard at 75 parts per billion (ppb) and changing related monitoring requirements.  For more, see here.

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On June 2, 2010, USEPA announced a 90-day public comment period for its "Toxicological Review of Formaldehyde Inhalation Assessment: In Support of Summary Information on the Integrated Risk Information System."  EPA's Integrated Risk Information System is a human health assessment program that evaluates quantitative and qualitative risk information on effects from chemical exposures.  EPA 's notice seeks pre-dissemination peer review.  A copy of the notice can be seen here.

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The Ohio Chamber, along with other statewide associations, formally requested a motion for leave to intervene in the Natural Resources Defense Council’s (NRDC) 6th Circuit appeal challenging Ohio’s New Source Review (NSR) State Implementation Plan (SIP). The NRDC is arguing that the rule violates the “anti-backsliding" provisions contained in the Clean Air Act. Motions to intervene were also filed by the Ohio EPA, Utility Air Regulatory Group and Clean Air Implementation Project. 

In addition to the formal legal challenge, NRDC has also petitioned US EPA for a “reconsideration” of its approval of Ohio’s rule. NRDC also sought a reconsideration and stay of certain parts of Wisconsin’s NSR SIP. On January 20, US EPA formally denied NRDC’s request to reconsider Wisconsin’s rule. Might there be a similar determination for Ohio?  

The regulations being attacked were intended to assist business and industry maintain jobs and improve the environment.   

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Hydraulic fracturing has seen several legislative initiatives lately.  For example, the Kerry-Lieberman climate legislation introduced earlier this month (at just under 1,000 pages) contains the following 36-word provision:  "A hydraulic fracturing service company shall disclose all chemical constituents used in a hydraulic fracturing operation to the public on the Internet in order to provide adequate information for the public and State and local authorities."  See here (NYT article on legislation generally); here (Senator Kerry's website); here (text of bill itself).

Also, Representative DeGette (D-Colo.) planned last week to introduce an amendment to the Assistance, Quality and Affordability Act in the House Energy and Commerce Committee designed to accomplish the same thing, i.e., require public disclosure of chemicals used in hydraulic fracturing.  See here (from the Dallas Morning News).  The NYT has reported that Rep. DeGette withdrew that amendment after considering the possibility of a compromise with industry.

Don't think it won't come up again ...

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The Star-Telegram is reporting that a Texas Department of State Health Services investigation has found that residents of Dish, TX, do not have higher levels of benzene and other contaminants in their bodies compared to the general population - dealing a significant blow to claims that residents were being injured due to natural gas E&P operations in the area.  For a copy of the report, see here.

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The EPA has just announced its final rule for greenhouse gas emissions from large fixed sources such as power plants and refineries. Starting in January of next year large facilities already required to obtain Clean Air Act permits for other emissions will have to seek a greenhouse gas permit if such admissions increase by 75,000 tons/yr or more. Six months later the requirements will expand to cover all new facilities with emissions of at least 100,000 tons/yr and older installations with modifications that result in increases of 75,000 tons/yr or more. The rule covers not only CO2 but also methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons and sulfur hexafluoride. It's anticipated that the rules will be expanded to additional sources effective July 2013.

The EPA believes that these new standards will avoid overwhelming permitting burdens that otherwise would have fallen on the government and most sources of greenhouse gas. The EPA notes that without this rule the permitting and "best available control technology" burdens would fall on operations with emissions as low as 100 tons/yr producing "an absurd result" - not to mention an immense political backlash propelled by an impossible to administer regulatory scheme. Instead, conceding in essence the slippery slope objection, expansion of the regulations to smaller emitters will proceed "one-step-at-a-time". Had the rules become effective for all emitters at once an estimated 6 million U.S. farms and businesses would have suddenly become subject to the permitting process with the time from application to permit approval lengthening to a decade or more.

The CliffsNotes version is here: Fact Sheet and here's the Final Rule

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USEPA is already making changes to its new Lead Renovation Rule, which became effective April 22, 2010.  Today, EPA has eliminated the opt-out provision of the new rule which had exempted a renovation firm from the training and work practice requirements of the rule where the firm obtains a certification from the owner of a residence he or she occupies that no children under age 6 or pregnant women resides in the home and the home is not a child-occupied facility.  EPA also proposed revisions adding requirements designed to ensure that lead-based paint hazards generated by renovation work are adequately cleaned after renovation work is finished and before work areas are re-occupied.

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We mentioned in a previous post that the E&P industry can expect increased regulatory scrutiny as a result of the spill in the Gulf of Mexico.  That, of course, isn't the only reason to anticipate such scrutiny.  This article from the Pittsburgh Tribune-Review is a timely reminder of the environmental issues being raised regarding development of the Marcellus Shale.  At a conference intended to develop a series of recommendations for the Pennsylvania legislature, the state's Department of Environmental Protection Secretary warned that "[u]nless steps are taken to protect the state's environment, development of Marcellus Shale natural gas reserves could overwhelm its benefits."

A separate article regarding the same event suggests that industry, rather than being a guest at the table, is really on the menu - see here, from the Philadelphia Inquirer.

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The first offshore wind farm in the United States has been approved for off the coast of Cape Cod, according to this article in the NYT.  "The Cape Wind turbines would lie in Nantucket Sound, about five miles from the nearest shoreline, and cover 24 square miles, roughly the size of Manhattan. The tip of the highest blade of each turbine would reach 440 feet above the water."  Interesting ... and, congratulations!

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We've observed that a number of our recent posts illustrate the challenges faced by our nation's energy industry, environmental and otherwise.  For a fun and vigorous defense of energy producers in general, see this article from the WSJ.  A sample:  "Oil, and foreign oil in particular, has been a favorite whipping boy for American politicians since the 1970s. They say that we are 'addicted' to oil, that oil fosters terrorism and that we can 'win the oil endgame.' While those claims are effective at rousing the masses, here's the reality: The world isn't using too much oil. It's not using enough."

(Note:  Subscription required.)

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Last week, the U.S. Senate Committee on Energy and Natural Resources heard testimony on the need for comprehensive carbon capture and storage (CCS) legislation, including support for several of the legal choices made in draft legislation - such as declaring that the federal government owns the subsurface pore space where it also owns the surface estate.  You can find more here, including links to the written testimony and a video of the hearing.

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USEPA’s new lead renovation rule becomes effective today.  The rule will affect businesses involved in the management, leasing and renovation of certain "target housing" and child occupied facilities (including public and commercial buildings).   

Contractors performing renovation, repair and painting projects that disturb lead-based paint must be certified.  Rule applicability thresholds are low - any work for hire that disturbs more than six square feet of painted surfaces indoors or more than twenty square feet outdoors must have a certified professional on-site to perform or directly supervise such work.  

Unfortunately, USEPA does not have enough approved trainers to train every contractor required to be certified.  It may be difficult for quite a while to find a certified contractor.  

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The U.S. EPA has proposed adding the following sixteen additional chemicals to the Toxics Release Inventory of reportable chemicals.

Chemical Name CAS#
1-Amino-2,4-dibromoanthraquinone 81-49-2
2,2-bis(Bromomethyl)-1,3-propanediol 3296-90-0
Furan 110-00-9
Glycidol 556-52-5
Isoprene 78-79-5
Methyleugenol 93-15-2
o-Nitroanisole 91-23-6
Nitromethane 75-52-5
Phenolphthalein 77-09-8
Tetrafluoroethylene 116-14-3
Tetranitromethane 509-14-8
Vinyl Fluoride 75-02-5

Additions to the Polycyclic Aromatic Compounds (PACs) category:

Chemical Name CAS#
1,6-Dinitropyrene 42397-64-8
1,8-Dinitropyrene 42397-65-9
6-Nitrochrysene 7496-02-8
4-Nitropyrene 57835-92-4

This represents the first expansion of the list in over a decade. The EPA’s stated purpose in seeking to add these chemicals is to provide information for the potential development of new regulations as well as to provide the public with more information about chemicals in their communities.  These chemicals have been identified by the National Toxicology Program as reasonably anticipated to cause cancer.  EPA isaccepting comments on the addition of these chemicals through June 7, 2010.
 

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The long-awaited proposed revisions to TSCA were introduced in the U.S. House and Senate last week. As expected, these proposals, referred to as the “Safe Chemicals Act of 2010” in the Senate and as the “Toxic Chemicals Safety Act of 2010” in the House, contain numerous similarities to REACH.  For example, the precautionary principle will apply, manufacturers will need to submit data on each chemical produced and its use, the EPA will be required to prioritize chemicals based on risk, the EPA will be expected to address high risk chemicals quickly.  Chemical information submitted will be publically available, the scope of confidential business information will be significantly narrowed, and there is a focus on using safer alternatives to chemicals of concern. 

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This is interesting.  The NYT has an article looking at one possible solution to the problem of intermittent wind power generation:  "One proposed solution to the intermittency problem is to tie many wind farms together with a transmission line — making an electric grid, as it were, consisting of wind turbines. Now, Willett Kempton of the Center for Carbon-free Power Integration at the University of Delaware and colleagues have shown how this 'all-for-one' approach might work with offshore wind farms along the Eastern Seaboard."

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U.S. EPA is proposing to add emissions sources to its mandatory greenhouse gas (GHG) reporting program, including onshore petroleum and natural gas production, processing, transmission and storage facilities (see here).  Its rationale:  "Fugitive and vented GHG emissions from this industry (i.e., the petroleum and natural gas industry sector) are the second largest source of human-made methane emissions in the United States *** and represent a critical addition to the emissions data that EPA is already collecting under other parts of the MRR [Mandatory Reporting Rule]."

Facilities that emit 25,000 metric tons or more of CO2 equivalent per year would be captured in the program.  Notably, "[d]ue to the unique characteristics of these industry segments, the proposed definition of 'facility' for onshore and offshore petroleum and natural gas production, and natural gas distribution differ from the definition of facility applied in the remainder of the MRR."  For production facilities, the relevant definition proposed by EPA:

Onshore petroleum and natural gas production facility means all petroleum or natural gas equipment associated with all petroleum or natural gas production wells under common ownership or common control by an onshore petroleum and natural gas production owner or operator located in a single hydrocarbon basin as defined by the American Association of Petroleum Geologists which is assigned a three digit Geologic Province Code. Where an operating entity holds more than one permit in a basin, then all onshore petroleum and natural gas production equipment relating to all permits in their name in the basin is one onshore petroleum and natural gas production facility.

A public hearing has been scheduled for April 19, 2010, in Arlington, VA.  The comment period will be open for 60 days following publication in the Federal Register.

[Update:  The notice has now been published in the Federal Register, which can be viewed here.  The related notice regarding CO2 sequestration can be found here.  (Moved up.)]

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ASTM International has issued its new Standard Guide for Financial Disclosures Attributed to Climate Change (ASTM E2718-10).  This Standard is intended for voluntary use by reporting entities who disclose financial impacts related to climate change. 

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The NYT has an interesting article on the apparent schism between many "meteorologists" and "climate scientists" on global warming issues.  The take away:  Increasing public skepticism regarding anthropogenic global warming is due in part to the public's interaction with meteorologists, "who predict short-term weather patterns," who "dominate communications channels to the public," and who are often less educated than their climate scientist colleagues.  It couldn't be the substance, of course.

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It is being reported that President Obama today will announce plans to allow drilling for oil and natural gas off much of the U.S.'s Atlantic coast, but will continue to restrict drilling off the California, Washington, and Oregon coasts, as well as in Alaska's Bristol Bay.  See here, for example (LA Times); and here (NY Times).

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The Houston Chronicle is reporting that BP, ConocoPhillips and Shell Oil Co., have proposed language for climate change legislation that would prohibit federal regulation of hydraulic fracturing, which is currently regulated by the states.  Among other things, "[t]he document recommends that states adopt standards for disclosing the contents of hydraulic fracturing chemicals 'to health professionals or state agencies' in order to protect health or environmental safety but maintain 'the confidentiality of trade secret information' in the fluids."

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The Ohio Power Siting Board (OPSB) approved several large-scale wind farm projects yesterday, according to these press releases (Buckeye Wind Project, JW Great Lakes Wind, and Hardin Wind Energy Project).  Copies of the decisions in these cases can be found here.

Congratulations to all!

[Disclosure:  Vorys represented Buckeye Wind LLC.]

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U.S. EPA has announced that it intends to conduct a comprehensive study of hydraulic fracturing and its potential adverse impacts on the environment.  From the news release:  "The agency is proposing the process begin with (1) defining research questions and identifying data gaps; (2) conducting a robust process for stakeholder input and research prioritization; (3) with this input, developing a detailed study design that will undergo external peer-review, leading to (4) implementing the planned research studies."

An EPA Science Advisory Board (SAB) meeting has been scheduled for April 7th and 8th to evaluate and comment on the proposed approach.

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The NYT is reporting on a plan by the Los Angeles Department of Water and Power to increase electric utility rates to cover a $6 million a week budgetary shortfall and subsidize renewable energy sources, including the use of solar panels by Los Angeles' residents to contribute to the power grid.  While noting that solar energy should be a thriving local industry, the article further observes "that has never been the case, and experts cite cost as the main reason."

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The Charleston Daily Mail is reporting that legislation to require reporting on source water and disposal plans related to hydraulic fracturing, as well as the additives used in the frac fluids, has cleared the Senate Natural Resources Committee.  Next stop:  the Senate Energy, Industry and Mining Committee.

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The NYT has an article on the challenges for expanding U.S. wind power generation, including a push for American jobs, rather than sending jobs to China; and low prices for competitive fuels such as natural gas.

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The Department of the Interior has found that the greater sage-grouse warrants protection under the Endangered Species Act (ESA), but that its listing is precluded by the need to address higher priority species first.  See here.  As a consequence, it will be placed on a list of candidates for future action and not receive statutory protection under the ESA.

For commentary, see this NYT article.

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On December 28, 2009, U.S. EPA issued a Notice of Availability of Preliminary 2010 Effluent Guidelines Program Plan (74 Fed. Reg. 68599) (see here) and asked for comments on both its preliminary 2010 Plan and on its 2009 review of existing effluent guidelines and pretreatment standards, including comments on industrial categories not currently regulated by effluent guidelines and pretreatment standards.  See Docket No. EPA-821-R-09-006 at www.regulations.gov.

Comments were submitted by both industry and environmental groups on the appropriateness of effluent guidelines for the oil and gas industry.  Earthjustice, for example, submitted comments urging U.S. EPA to expand its study of CBM operations "to include all techniques that may result in contamination of surface water or groundwater, including hydraulic fracturing in all formations."  See here.  The American Petroleum Institute filed comments, on the other hand, noting that CBM operations should not be subject to national effluent limitations guidelines and objecting to an expansion of U.S. EPA's study of CBM extraction to oil and gas operations more generally.

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Senator Rockefeller (D-WV) has introduced legislation to delay action by U.S. EPA on greenhouse gas regulation for stationary sources for a period of two years, according to this press release from the Senator's office.  "The legislation directs that for two years after enactment the EPA can take no regulatory action and that no stationary source shall be subject to any requirement to obtain a permit or meet a New Source Performance Standard under the Clean Air Act with respect to carbon dioxide or methane, except for the widely-supported motor vehicle emission standards."

The press release provides a link to the proposed legislation.

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The Dallas Morning News is reporting on claims made by researchers that mobile methane detectors have found plumes near natural gas facilities located in Barnett Shale counties.  Looks like they may be centered around compressor stations.

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We couldn't resist the title.  The WSJ is reporting that U.S. EPA under the Obama administration has forced polluters to pay in fiscal 2009 less than in the previous year:  "In fiscal 2009, the EPA's enforcement office required polluters to spend more than $5 billion on cleanup and emission controls—down from $11.8 billion the previous year, according to a report recently published by the agency."

That won't last, will it?

(Note:  Subscription required.)

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The WSJ has an interesting article on the tension between wind power producers and the owners of natural gas power plants in Texas.  For one thing, while power producers generally are responsible for their own backup costs in the event that they fail to deliver as promised, it appears that wind power producers in Texas are not - creating an unfair advantage according to some.

(Note:  Subscription required.)

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The Chairman of the House Committee on Energy and Commerce, Rep. Henry Waxman (D-Ca), and the Chairman of the House Subcommittee on Energy and Environment, Rep. Edward Markey (D-Ma), have sent a letter to the American Public Power Association (APPA), demanding to know whether the APPA disputes the scientific validity of U.S. EPA's greenhouse gas endangerment finding, and if so, the basis for that dispute.  See here.  The Congressmen expressed a deep concern that "APPA appears to be actively misinforming its members about this issue."

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On February 19, 2010, the USEPA proposed a rule to revise the procedures for developing Enforceable Consent Agreements ("ECA") to generate test data under TSCA.  The rule would generally apply to those who manufacture or process chemical substances.  ECAs are legally enforceable agreements entered into with USEPA wherein a manufacturer or processor of chemical substances agrees to conduct specific testing on a chemical substance to fill an USEPA data need (without requiring EPA to first make a risk determination under TSCA Section 4).  The proposed rule is intended  to shorten the average time to complete negotiations for ECAs and to use deadlines to terminate negotiations for ECAs if not completed. 

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The House Subcommittee on Energy and Environment held a hearing today to discuss endocrine disrupting chemicals in drinking water and their risks to human health and the environment.  Testimony can be found here.

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On Monday, USEPA Administrator Jackson outlined decisions she has made related to greenhouse gas regulation/permitting. The short read is as follows:

In the letter, the Administrator outlines several of the decisions she has made for 2010-2011:

No facility will be required to address greenhouse gas emissions in Clean Air Act permitting of new construction or modifications before 2011.

For the first half of 2011, only facilities that already must apply for Clean Air Act permits as a result of their non-greenhouse gas emissions will need to address their greenhouse gas emissions in their permit applications.

EPA is considering a modification to the rule announced in September that required large facilities emitting more than 25,000 tons of greenhouse gases a year to obtain permits demonstrating they are using the best practices and technologies to minimize GHG emissions.

EPA is considering raising that threshold substantially to reflect input provided during the public comment process.

EPA does not intend to subject smaller facilities to Clean Air Act permitting for greenhouse gas emissions any sooner than 2016.

[Update:  The Administrator was responding to a letter sent by a group of Senators (D) from coal producing states challenging EPA's potential regulation of greenhouse gases.  A copy of the related news release, with a link to the Senators' letter, can be found here.  Senator Rockefeller's response to the Administrator's letter can be found here, stating in part, “As I evaluate the EPA’s letter, I remain committed to presenting legislation that would provide Congress the space it needs to craft a workable policy that will protect jobs and stimulate the economy.”  Read:  Legislation to suspend EPA's authority to regulate GHG's for some period of time.]

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The Obama Administration is stepping up its efforts to pass a hybrid energy and climate bill, according to this article in the NYT.  "Fred Krupp, president of the Environmental Defense Fund, said the ongoing efforts are aimed at a bill that is a 'hybrid of ideas' that would attract enough votes from fence-sitting Democrats whose states are heavily reliant on coal and from Republican ranks to secure passage through the Senate."  The precise contours of that legislation remain indeterminate, however.

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The NYT is reporting that ConocoPhillips, Caterpillar Inc., and BP America are leaving the U.S. Climate Action Partnership - a coalition industry and environmental groups formed to lobby Congress on climate change legislation.  The reason (one among many in all likelihood):  Not enough was being done to encourage natural gas use.

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The Southeastern Legal Foundation has filed suit, together with more than a dozen U.S. representatives and nearly two dozen associations, to challenge U.S. EPA's efforts to regulate carbon dioxide as a pollutant under the Clean Air Act (i.e., EPA's related "Endangerment Finding"), according to this opinion piece in the Washington Examiner.

A copy of the petition, and related materials, can be found here.

[Update:  Texas is filing suit too, according to this article in the Houston Chronicle.  (Moved up.)  And more here from the NYT (note the "skeptic" pejoratives).]

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The WSJ is reporting that the Director of U.S. EPA's Drinking Water Protection Division believes that states are doing a good job of regulating hydraulic fracturing:  "'I have no information that states aren't doing a good job already,' Steve Heare*** said on the sidelines of a [NARUC] conference here. He also said despite claims by environmental organizations, he hadn't seen any documented cases that the hydro-fracking process was contaminating water supplies."

Interesting.  (Note:  Subscription required.)

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The National Oceanic and Atmospheric Administration (NOAA) is proposing to form a new Climate Service to improve its ability to respond to requests for climate data, according to this NOAA news release.  "Unifying NOAA’s climate capabilities under a single climate office will integrate the agency’s climate science and services and make them more accessible to NOAA partners and other users."

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The Cleveland Plain Dealer is reporting on the threat to biodiesel development due to Congress' failure to extend related federal tax credits.  "The profit margins are so thin for the organic product that it cannot compete with petroleum-based diesel without the tax break."

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The WSJ has an article on Denbury Resources Inc.'s plan to use CO2 recovered from industrial plants to improve its oil recovery.  "Denbury wants to capture the entirety of the Dow plant's annual carbon-dioxide emissions, taking a liability off Dow's hands equivalent to the annual emissions of 27,000 cars."  Interesting.

(Note:  Subscription required.)

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The Obama Administration has announced several initiatives designed to enhance American energy independence while building a foundation for a new clean energy economy, including the creation of an Interagency Task Force on Carbon Capture and Storage.  For more, see this press release (which includes links to the source documents).

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The Washington Post has an article reporting on wastewater treatment and disposal issues related to Marcellus production.  A sample:  "Before that can happen [i.e., the Marcellus can become one of the most prolific natural gas fields in the U.S.], the industry is realizing that it must solve the challenge of what to do with its wastewater. As a result, the Marcellus Shale in on its way to being the nation's first gas field where drilling water is widely reused."

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The United Stated District Court for the Southern District of Ohio ruled on February 2, 2010 that the Ohio EPA was in violation of the Clean Air Act by improperly exempting from regulation businesses that emitted less than 10 tons per year of certain air pollutants.  A copy of the case can be found here.

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The Pennsylvania Department of Environmental Protection (DEP) is proposing new well construction regulations, including updated casing and cementing requirements.  For a copy of the published notice, see here; for the proposed regulations see here.  Comments are due March 2, 2010.

[Update:  The DEP is going to be hiring 68 more inspectors this year, according to this article in the Philadelphia Inquirer.  "With the new hires, the DEP will have 193 people dedicated to oil and gas."  (Moved up.)]

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On January 27, 2010, the Securities and Exchange Commission voted to provide public companies with interpretive guidance on disclosure requirements related to business or legal developments on climate change. According to the SEC’s press release, the interpretive guidance is intended to assist companies with disclosures of climate change impacts under the SEC's existing disclosure regulations.

The interpretive guidance highlights four areas as examples of when climate change disclosures may be triggered:

• Impact of Legislation and Regulation
• Impact of International Accords
• Indirect Consequences of Regulation or Business Trends
• Physical Limitations of Climate Change

The SEC expects to post a copy of the interpretive guidance on its website when is it available. 
 

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Legislative hearings have started on proposed wastewater regulations related to natural gas drilling in the Marcellus Shale in Pennsylvania.  For a brief account, see this article in the Scranton Times-Tribune.  For a copy of the proposed rulemaking, see here.  Comments are due February 12, 2010.

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This past weekend there was an oil spill offshore Texas caused by an 800-foot tanker heading for an Exxon Mobil Corp. refinery colliding into another vessel pushing two barges.  For more details see here (NYT) and here (Houston Chronicle).

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We reported previously on a Pennsylvania lawsuit challenging a settlement reached between the U.S. Forest Service and the Sierra Club that requires the Forest Service to analyze future drilling proposals on split estates in the Allegheny National Forest (ANF) under the National Environmental Policy Act (NEPA) prior to issuing a Notice to Proceed.

The court recently granted a preliminary injunction enjoining the Forest Service from implementing the terms of that settlement.  It found, among other things, that the Service does not have the regulatory authority claimed over the processing of drilling requests, and that "[c]onsequently, its involvement in the approval process does not constitute a major federal action requiring NEPA compliance."  It further found that industry members "have suffered significant financial losses as a result of the Forest Service's decision to halt drilling while an EIS is performed," with the potential that some may be forced out of business if the drilling ban continues.  This was sufficient to find irreparable harm to the mineral owners.

More on the court's decision, including a copy of the opinion, can be found here.

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We meant to mention:  The West Virginia Department of Environmental Protection released on January 8, 2010, an industry guidance document for oil and gas producers looking at possible Marcellus Shale production.  Its purpose:

[T]o assist well operators in planning for the drilling and operation of these wells and the associated need to either dispose of or reuse large water volume fracture treatment wastes. It is intended to facilitate compliance with applicable statutory and regulatory requirements and to generally minimize negative environmental impacts associated with these activities, by promoting the use of necessary best management practices.

A copy can be found here.

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The Washington Post is reporting that 36 Senators introduced legislation yesterday to block USEPA from regulating greenhouse gas emissions under the Clean Air Act.  Essentially, the Senators don't think the Clean Air Act was drafted to address greenhouse gases and that Congress should act - not the USEPA under ineffective laws.  You can read the Washington Post article here.

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The WSJ has a good article discussing the history (briefly) and issues surrounding the use of hydraulic fracturing.  A sample:  "Hydraulic fracturing and some other technology improvements have created a way to tap a domestic fuel source that has proved abundant. U.S. natural-gas production has risen about 20% since 2005 in large part because of these developments, making gas a much bigger player in energy-policy planning."  And:  "What most worries environmentalists isn't the water in the fracturing process—it's the chemicals mixed in the water to reduce friction, kill bacteria and prevent mineral buildup. The chemicals make up less than 1% of the overall solution, but some are hazardous in low concentrations."

(Note:  Subscription required.)

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The California Coastal Commission has denied a request by a Santa Cruz County couple to install a wind turbine above their ocean-view home, according to this article in the San Jose Mercury News.  The reason (at least in part):  The "visual jolt" that it would cause in the neighborhood.

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The NYT is reporting that proposed ozone standards may pose a problem for oil and gas producers in Colorado, Wyoming, New Mexico and Utah.  "While the effects of a tougher health standard would be most immediately felt in smog-choked urban areas, where motor vehicles contribute billions of tons of ozone-forming pollutants annually, the odorless gas is a growing problem in many more rural states, especially where oil and gas producers have sunk thousands of wells into the ground, resulting in releases of ozone-forming pollutants."

Air issues are becoming more prevalent.

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T. Boone Pickens has shelved his Pampa Wind Farm project, reducing his order of wind turbines by half and slating them for Canada or Minnesota instead, according to this article in the WSJ.  The cause - Cheap natural gas and lack of transmission infrastructure.  For a related article, see here (NYT).

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The California Building Standards Commission recently approved “CAL Green,” a new, environmentally friendly building code.  According to the San Francisco Chronicle, the new standards, which go into effect in January of next year, are the most stringent building codes in the nation and apply to new construction.  Builders will be required to install plumbing that reduces indoor water use, recycle 50% of construction waste, use low-pollutant paint, carpet and flooring, and install separate water meters for different uses in non-residential buildings.  In addition, CAL Green requires local officials to inspect heaters, air conditioners and other mechanical equipment in non-residential buildings to ensure efficient operation.  Local jurisdictions are also authorized to retain or adopt more stringent requirements.

More information on CAL Green can be found here.

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The Houston Chronicle is reporting that the Texas Commission on Environmental Quality will be taking a closer look at air quality issues in the Barnett Shale.  Among other things, it will implement a rapid response plan for complaints regarding air quality and issue a report on extensive air monitoring later in January.  The issue now is benzene.

[Update:  TCEQ:  No dangerous ambient air pollution found.  Monitoring will continue, however.  (Moved up.)]

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New legislation in Ohio considers the possibility of brine produced from the Marcellus Shale in Pennsylvania coming to Ohio for disposal, according to this article in the Columbus Dispatch.

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We previously reported on Cincinnati's Environmental Justice Ordinance, believed to be the first of its kind for a City.  That ordinance was supposed to take effect in December 2009.  On January 5th, the City Council's Quality of Life Committee unanimously passed a motion to delay the effective date until February 2011 due to lack of funding in the City's budget for implementation.  Additional City Council action will be necessary to amend the existing ordinance.

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US EPA announced today its commitment to "strengthen and reform chemical management."

According to the press release, "EPA intends to establish a 'Chemicals of Concern' list and is beginning a process that may lead to regulations requiring significant risk reduction measures to protect human health and the environment. The agency’s actions represent its determination to use its authority under the existing Toxic Substances Control Act (TSCA) to the fullest extent possible, recognizing EPA’s strong belief that the 1976 law is both outdated and in need of reform."

TSCA will undoubtedly be a hot topic in 2010!

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Congress' failure to renew federal tax credits for biofuels is leading to the closure of a large biodiesel fuel plant in Port Neches, Texas, according to this article in the Houston Chronicle.

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The Houston Chronicle has a noteworthy article on a conflict we are seeing more and more between environmental interests - the encouragement of alternative energy and the goals of conservation groups.  In this case, the construction of a solar energy project is viewed as jeopardizing 6 square miles of habitat for a threatened desert tortoise species.

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The deadline is fast approaching for filing comments on the NY rulemaking proposal regarding hydraulic fracturing (December 31, 2009).  There have been a number of articles on the comments that have been filed to date, including this one from the Albany Times Union.  For more on the issue generally, see here (NYDEC website).

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The LAT has an interesting article on the increasing reliance on "green managers" in industry at the executive level.  "Sustainability officers and green supervisors, some say, are successors to the diversity managers and innovation specialists of the 1990s -- with their focus equal parts corporate responsibility, public relations and profit."

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It may be that green technologies are not so green after, all due to their reliance on "rare earths" mined in China, according to this article in the NYT.  "These elements come almost entirely from China, from some of the most environmentally damaging mines in the country, in an industry dominated by criminal gangs."  Wow.

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U.S. EPA has published notice of a proposed consent decree with WildEarth Guardians and San Juan Citizens Alliance filed in the United States District Court for the District of Columbia under citizen suit provisions of the Clean Air Act (WildEarth Guardians, et al. v. Jackson, No. 1:09– CV–00089–CKK).  Among other things, if approved it would require EPA to address the need for new source performance standards (NSPS) and national emission standards for hazardous air pollutants (NESHAP) for the Oil and Natural Gas production source category.

You can get a copy of the proposed decree here (EPA–HQ–OGC–2009–0918).

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We are moving towards greater regulation of emissions from oil and gas exploration and production operations, according to this article in The Grand Junction Daily Sentinel.  That looks quite possible.

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We've reported previously on a geothermal project in California and the concerns raised over potential earthquake risks (see here).  The NYT is now reporting that Altarock Energy, the Obama administration's first test of geothermal energy as a major alternative energy source - and despite millions in Department of Energy grants and private investment from Google and Kleiner Perkins (among others), is abandoning the project.

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The Susquehanna River Basin Commission has announced that it will be installing electronic monitors to assess water quality on streams located in production areas, according to this article in the Philadelphia Inquirer.  "The commission said the 30 monitors would provide real-time data on water quality to alert officials to any sudden changes that might indicate a spill or a leak, said Susan Obleski, spokeswoman for the basin commission."  East Resources, Inc., is paying for the monitors.

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Back on December 19, 2008, USEPA issued a final rule revising the requirements of the major NSR program regarding the treatment of fugitive emissions (‘‘Fugitive Emissions Rule’’). 73 FR 77882.  The final rule required fugitive emissions to be included in determining whether a physical or operational change results in a major modification only for sources in industries that have been designated through rulemaking under section 302(j)of the Clean Air Act (CAA).  The final rule amended all portions of the major NSR program regulations: Permit requirements, the PSD program, and the emission offset interpretive ruling.  On February 17, 2009, the Natural Resources Defense Council submitted a petition for reconsideration of the December 2008 final rule.  On April 24, 2009, USEPA responded to the February 17, 2009 petition indicating they were convening a reconsideration proceeding for the inclusion of fugitive emissions and granting a 3-month administrative stay of the rule contained in the PSD program.  The letter also indicated that USEPA would publish a notice of proposed rulemaking‘ ‘in the near future’’ to address the specific issues for which they were granting reconsideration.  The administrative stay of the Fugitive Emissions Rule became effective on September 30, 2009. See 74 FR 50115.  

USEPA’s authority under section 307(d)(7)(B) to stay a rule or portion thereof solely under the Administrator’s discretion is limited to 3 months.

USEPA announced today (December 11, 2009, 74 FR 65692) they were making an interim final determination to provide an additional stay for 3 months.  The 3-month stay that began on September 30, 2009 is to expire on December 30, 2009.  At that time, facilities would be required to comply with the final rule as published [73 FR 77882] unless an additional stay is set in place.  USEPA has now indicated its intent to publish a notice in the near future that will propose an additional stay of the Fugitive Emissions during the time period while USEPA reconsiders the rule. Since that proposed rule has not yet been published, any resulting final action that EPA takes will likely occur after December 30, 2009.
 

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Baker Hughes is developing drills and measurement technology that can be used in an emerging geothermal market, according to this article in the WSJ.  "Finding a drill that can function reliably in such hot conditions deep under the earth's crust has been a problem throughout the industry. And failing drill bits eat up time and waste money."  Very interesting.

(Note:  Subscription required.)

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The NYT has an article on the growing debate surrounding the use of hydraulic fracturing to produce shale plays.  The hook - After noting the benefits of lower prices and "global warming" emissions, it asks, "What the drilling push will do to local environments is another matter."  And yet, the article acknowledges:  "So far, the evidence of groundwater pollution is thin."  Read and enjoy.

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U.S. EPA has issued its endangerment finding, announcing that greenhouse gases threaten the public health and welfare of the American people:

The Administrator finds that six greenhouse gases taken in combination endanger both the public health and the public welfare of current and future generations.  The Administrator also finds that the combined emissions of these greenhouse gases from new motor vehicles and new motor vehicle engines contribute to the greenhouse gas air pollution that endangers public health and welfare under CAA section 202(a).

You can find copies of both the finding itself and EPA's technical support documents here.

[Update:  We neglected to mention - These findings do not themselves impose any requirements on industry or other entities. However, this action is a prerequisite to finalizing the EPA’s proposed greenhouse gas emission standards for light-duty vehicles, which were jointly proposed by EPA and the Department of Transportation’s National Highway Safety Administration on September 15, 2009.]

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We've noted before the concerns raised about air pollution from E&P operations in the shale plays (see here, e.g.).  The Dallas Morning News has a good summary article observing that the issue has not gone away, noting a call for a moratorium on permits in the Barnett Shale.

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We've noted before the concerns raised about air pollution from E&P operations in the shale plays (see here, e.g.).  The Dallas Morning News has a good summary article observing that the issue has not gone away, noting a call for a moratorium on permits in the Barnett Shale.

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The NYT has an interesting article on green jobs, and the fact that they are not growing as expected in the U.S.  Telling paragraph:  "'The clean energy market is gigantic and growing,' said Phyllis Cuttino, a director of the Pew Charitable Trusts’ Environmental Group. 'The U.S. has a rich manufacturing base, a well educated work force and we are an innovation center. But if we don’t have the policies in place to make investment here a sure thing, then we could potentially lose to other countries.'"

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The Senate Committee on Environment & Public Works heard testimony yesterday on improving the framework for assessing and managing chemical risks under the Toxic Substances Control Act (TSCA).  Written statements of the witnesses, including from the Administrator of U.S. EPA, can be found here.

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The Philadelphia Inquirer is reporting on a study recently issued by PennEnvironment urging greater restrictions on natural gas production in Pennsylvania, including a moratorium on forest land leasing until the impacts of current drilling operations can be assessed.  For a copy of the report, see here.

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The NYT has a good article on the debate taking place in New York over drilling in the Marcellus Shale.  Interesting:  "As New York environmental officials draft regulations to allow drilling in the shale as early as next year, thousands of residents like the Laceys in upstate counties have banded together in coalitions to sign leases with gas companies for drilling on their land — for $5,000 to $6,000 an acre for a term of five years, and royalties of up to 20 percent on whatever gas is found."

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The Pennsylvania Fish & Boat Commission will soon begin inspections of exploration and drilling sites in the Marcellus Shale to protect state waterways and wetlands, according to this article in the Wayne Independent.  "'Because of the importance of this issue, waterways conservation officers and field staff have set aside other job duties and functions for a period of time in order to conduct these field inspections,' said Austen [the agency's executive director]."

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Air pollution is becoming an issue of increasing concern for some with respect to exploration and production operations.  The Star-Telegram has an article, for example, noting that the Texas Commission on Environmental Quality is seeking voluntary reductions in air emissions from E&P operators in the Barnett Shale.

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The Washington Times has an interesting article on the stimulus' creation of green jobs.  Takeaway paragraph:  "But the reality is that after a big dose of spending in the stimulus bill, no more than 100,000 or so jobs have been created, economists say, and the prospects are for only modest growth in alternative energy jobs for years to come."  And to make matters even more interesting, the article notes that the jobs are fairly expensive to create.

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The Patriot-News is reporting that the Pennsylvania Department of Environmental Protection is seeing a number of applications for wastewater treatment facilities related to the increased drilling in the Marcellus shale.

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New York Attorney General Andrew Cuomo has entered into another settlement requiring a company to include information on climate change risks in its annual financial reports. On November 19, 2009, the Attorney General announced a settlement with AES Corporation. Under the settlement, AES is required to disclose “timely and relevant information to investors about financial risks associated with the production of global warming pollution.” This is the third agreement the New York Attorney General has entered related to climate change financial disclosures. Under these agreements, the companies are required to disclose material risks associated with climate change in their annual Form 10K disclosure to the SEC.

More information on the settlement can be found here.

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The NYT has an article on locating wind turbines for energy production miles off the coast on floating facilities.  Very interesting.

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U.S. EPA published its most recent amendments to the Spill Prevention, Control, and Countermeasure (SPCC) Rule last Friday, November 13, 2009 (74 Fed. Reg. 58784).  Unintended foreshadowing, perhaps ...

By way of background, the SPCC Rule was originally adopted on December 11, 1973, to address the potential impacts of oil discharges to navigable waters of the United States. The Rule was amended - after years of comment and discussion - on July 17, 2002, in ways that substantially increased the demands imposed on crude oil producers and others when preparing and implementing their SPCC plans. Recognizing the increased burdens placed on producers, EPA extended the deadline for compliance several times to review and address the issues created by its regulatory amendments.

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Many thanks to Attorney.org for including us in their list of top environmental and land use law blogs.

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Climate change is not the end-all-be-all of regulating our air, says EPA. Yesterday, the EPA announced a proposed rule that will change the primary National Ambient Air Quality Standards for sulfur dioxide.  This rule would eliminate the current 24-hour and annual standards and replace them with a new, more stringent, one-hour standard of between 50 and 100 parts per billion (ppb).  EPA is also proposing changes to its monitoring and reporting requirements that may require more reporting for facilities surrounding urban areas and more frequent notification to the public of short term SO2 levels. A public hearing will be held in Atlanta on January 5, 2010 and a final rule is to be expected by June 2, 20010

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On November 11, the Department of Interior announced the brown pelican’s removal from the endangered species list.  The brown pelican was listed as endangered in 1970 after near decimation attributed to the pesticide DDT.  The pelican’s recovery is largely attributed to the 1972 ban on the general use of the pesticide.

 A copy of the DOI announcement can be found here.

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U.S. EPA has announced that it finalized amendments to the Oil Spill Prevention, Control and Countermeasure (SPCC) Rule designed to clarify and tailor regulatory requirements to particular industry sectors.  Once the rule gets posted, we will provide an update.

[Update:  For a pre-publication copy, see here.]

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The Chemical Facility Anti-Terrorism Act of 2009 (H.R. 2868) passed the House on Friday along party lines with 91% of Democrats voting for the measure and 100% of Republicans voting against it. The Act proposes to amend the Homeland Security Act of 2002 to provide for the regulation of security practices at chemical facilities and to amend the Safe Drinking Water Act and Federal Water Pollution Control Act to enhance security of public water systems and wastewater treatment works.

More information on H.R. 2868 can be found here.
 

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An Ithaca, NY researcher and environmentalist has created a list of more than 250 alleged wastewater spills, instances of well contamination, and methane migration related to E&P operations in NY over the last 30 years - challenging the notion that the industry is well-regulated, according to this article from pressconnects.com.  The apparent genesis of the analysis:  New drilling regulations proposed in NY and increased interest in the Marcellus shale.

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Senate Democrats on the Environment and Public Works Committee approved a climate bill (S. 1733) sponsored by Senator Boxer (D-CA) without any Republican support, according to this article in the NYT.  Interestingly, Senator Baucus (D-MT) voted against the measure.

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A study published in Nature Nanotechnology recently found evidence of harm to lungs associated with inhalation of multi-walled carbon nanotubes.  The study, conducted by North Carolina State University, the Hamner Institutes for Health Sciences, and the National Institute of Environmental Health Sciences discovered that multi-walled carbon nanotubes, when inhaled, reach the pleural lining surrounding the lungs.  Asbestos fibers, when inhaled, reach the same part of the lungs and have caused mesothelioma.  Researchers indicate that this study was too short to determine whether multi-walled carbon nanotubes would cause mesothelioma and state that additional study is needed to determine what causes the nanotubes to be toxic.  Lead investigator James Bonner recommended that the nanotubes be treated asbestos fibers and that inhalation of these nanotubes be minimized, until more is known.  

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We've posted several times on the challenges raised by environmental groups and others regarding hydraulic fracturing specifically and energy development more generally (see, e.g., here and here).  Along those lines, Environment Texas recently published a report entitled, "Toxic Chemicals on Tap:  How Gas Drilling Threatens Drinking Water."  Don't expect the challenges to abate any time soon.

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John Kerry announced plans for a “dual track” to revise the Clean Energy Jobs and American Power Act (S. 1733) along with Senator’s Lindsay Graham and Joseph Lieberman.  This announcement comes after Senate Republicans in the Environment and Public Works Committee walked out of Committee hearings that were to begin on Tuesday.  Senator Kerry indicated that they will work with business groups and the White House to develop a compromise on the climate legislation.  According to Senator Kerry, the Senate Committee is expected to continue its work on the bill and the revisions developed by the two “tracks” would be merged into a single bill.   

More information on the Clean Energy Jobs and American Power Act can be found at Senator Kerry’s website.  This legislation was introduced September 30, 2009.  Another hearing before the Senate Committee on Environment and Public Works is scheduled for November 5, 2009 at 9:00 AM.  This legislation mandates a 20% reduction of greenhouse gas emissions from 2005 levels by 2020 and includes measures to allow for greenhouse gas emissions trading.

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The NYT is reporting on new technology being developed to adjust home power use by collecting data on customer usage and local weather.  Looks like energy management may reach the residential level at a not too distant point in the future.

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Senate and House of Representative conferees have approved a $32.24 billion Interior and Environment Appropriations Bill for fiscal year 2010, including  monies for U.S. EPA to conduct a second study of hydraulic fracturing:

Hydraulic Fracturing Study .--The conferees urge the Agency to carry out a study on the relationship between hydraulic fracturing and drinking water, using a credible approach that relies on the best available science, as well as independent sources of information. The conferees expect the study to be conducted through a transparent, peer-reviewed process that will ensure the validity and accuracy of the data. The Agency shall consult with other Federal agencies as well as appropriate State and interstate regulatory agencies in carrying out the study, which should be prepared in accordance with the Agency's quality assurance principles.

For more, including a copy of the text of the bill, see here.

[Update:  The American Petroleum Institute (API) has published a new guidance document on best-industry practices for drilling and cementing wells that may be hydraulically fractured.  A copy can be found here.]

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The NYT is reporting that some policymakers are looking at oil refineries, natural gas processing plants, chemical plants, cement factories and ethanol plants as a new and different target for carbon sequestration.  The reason - It would be simpler and cheaper.

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U.S. EPA is proposing to survey three groups regarding their stormwater management practices, including the following: 1) the owners, operators, developers, and contractors of newly and redeveloped sites; 2) the owners and operators of municipal separate storm sewer systems; and 3) states and territories.

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U.S. EPA is seeking comments on a significant rulemaking proposal that would establish initial major source applicability thresholds for GHG emissions under the Clean Air Act's PSD (Prevention of Significant Deterioration) and Title V programs at 25,000 tons per year on a CO2-equivalent basis.  It justifies a departure from existing statutory thresholds - which are substantially lower - "[b]ased on the long-established judicial doctrines of 'absurd results' and 'administrative necessity.'"  It appears that concerns expressed by industry that U.S. EPA will move on this issue to force Congress to act were well founded.

For more, see here.  Comments are due December 28, 2009.

Question:  What will be the impact on global temperatures if the proposed rule is finalized?

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The Senate Committee on Environment and Public Works heard testimony yesterday from U.S. EPA Administrator Lisa P. Jackson and others on the Clean Energy Jobs and American Power Act.

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Climate legislation introduced in the Senate is discussed in this article in the NYT, including a link to the draft text of the bill.  Wildlife and conservation issues more specifically are addressed in this NYT article.

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In a separate matter, U.S. EPA has imposed a $7,150 fine on the Hunt Oil Company for violating federal Spill Prevention, Control and Countermeasure (SPCC) regulations by failing to provide the required secondary containment and documentation of plan approval.

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Members of the U.S. House of Representatives launched a new caucus yesterday to promote the use of natural gas as a low emission energy source.  The Oklahoman has a good article on the caucus' first hearing, which focused on how to expand this energy resource to take advantage of new shale discoveries.

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The NYT is reporting on the global potential for natural gas vehicles.  It finds that the enthusiasm for NGV's, especially in Europe, is waning as oil prices decrease.  We'll see.

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On Friday, October 16, 2009, the 5th Circuit ruled that plaintiff landowners had standing under Mississippi tort common law to assert causes of action for negligence, private and public nuisance, and trespass against oil companies for their release of greenhouse gases, which caused rising sea levels and increased the ferocity of Hurricane Katrina. The action is pending as a putative class action against the oil companies and has been remanded to a Mississippi district court for further proceedings. See the decision here.

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On October 15, 2009, US EPA announced its intention to step up enforcement under the Clean Water Act.  The Clean Water Action Enforcement Plan announced by US EPA outlines how it will strengthen the way it addresses water pollution, with the goals of (1) targeting enforcement to the most significant pollution problems; (2) improving transparency and accountability through better public access to water quality information; and (3) strengthening state and federal enforcement performance levels and improving consistency.  US EPA’s Office of Enforcement and Compliance Assurance developed the plan at Administrator Jackson’s direction following data indicating the nation’s water quality is unacceptably low in many areas.  

More information on the Plan can be found at http://www.epa.gov/compliance/civil/cwa/cwaenfplan.html.  This plan is seen as a first step in the revamping of the compliance and enforcement program.

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The biofuels industry is seeing increased investment from an unexpected source - the oil majors - according to this article in the WSJ.  Interesting.

(Note:  Subscription required.)

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The NYT is reporting on impact that fugitive methane emissions have on climate change.  "Natural gas consists almost entirely of methane, a potent heat-trapping gas that scientists say accounts for as much as a third of the human contribution to global warming."  The article urges, in part, an aggressive campaign to rein in methane emissions from well production equipment.

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Research suggests that oil demand peaked in industrialized nations in 2005, according to this article in the NYT.  This is due in large part to efficiency gains in the transportation sector, aging populations and growth in renewable fuels.  Not surprisingly, growth in oil demand will come from the developing world.

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The Canadian and Alberta governments have stated that they would contribute approximately $822 million to help fund a commercial-scale carbon capture and storage project by Royal Dutch Shell PLC, according to this article in the NYT.  The project itself is designed to capture and store 1 million metric tons of carbon dioxide from the Athabasca Oil Sands.  Very interesting.

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Click here to read a speech by the EU Commissioner for the Environment at the Stakeholder Conference on Nanomaterials held in Brussels today.  The speech also touches upon REACH's application to nanomaterials.

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The U.S. Department of Labor's Occupational Safety & Health Administration (OSHA) has proposed to amend its Hazard Communication Standard (HCS) with provisions of the United Nations Globally Harmonized Communication System of Classification and Labeling of Chemicals ("GHS"). 

Under the HCS, chemical manufacturers and importers must evaluate hazards of chemicals and provide information to future users.  Most are familiar with the hazard communication program with which employers must comply.  The proposed rules would address inconsistencies in the OSHA HCS program and the GHS program to align the two standards.

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Yesterday, Public Citizen - a nonprofit consumer advocacy organization - sued the Texas Commission on Environmental Quality (TCEQ) to force the commission to regulate CO2 emissions when considering permits for new coal-fired power plants and other facilities.  A copy of the organization's press release can be found here, including a copy of the complaint that was filed.

If successful, expect to see similar suits around the country.

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The New York Department of Environmental Conservation (NYDEC) has released for comment its draft Supplemental Generic Environmental Impact Statement (SGEIS) for natural gas drilling operations in the Marcellus Shale.  The SGEIS looks at the range of potential environmental impacts of shale gas development using large volume hydraulic fracturing and proposes standards and mitigation strategies that may be required of producers applying for related permits.

Comments are due by November 30, 2009.  A copy of the draft SGEIS can be found here.  A related NYT article can be found here.

[Update:  The press is already reporting on the conflicts generated by the SGEIS.  See, for example, here (from pressconnects.com).  (Moved up.)]

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Climate legislation was introduced into the Senate today by Senators Boxer (D-CA) and Kerry (D-MA), according to this article in the NYT.  It calls for a 20% reduction in greenhouse gas (GHG) emissions by 2020 and an 80% reduction by 2050 (using 2005 as a baseline).  Note - the terms "climate change" and "global warming" do not appear in the title ...

[Update:  The Fort Worth Business Press has an article finding that the Senate's climate legislation may help the natural gas industry.  (Moved up.)]

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President Obama signed an Executive Order yesterday "that sets sustainability goals for Federal agencies and focuses on making improvements in their environmental, energy and economic performance."  The stated goal is to lead by example with some deadlines requiring initial action by governmental agencies within 90 days.

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U.S. EPA just announced core principles that outline the President’s goals for Congressional reform of the Toxic Substances Control Act (TSCA):

• Chemicals should be reviewed against risk-based safety standards based on sound science and protective of human health and the environment;
• Manufacturers should provide EPA with the necessary information to conclude that new and existing chemicals are safe and do not endanger public health or the environment;
• EPA should have clear authority to take risk management actions when chemicals do not meet the safety standard, with flexibility to take into account sensitive subpopulations, costs, social benefits, equity and other relevant considerations;
• Manufacturers and EPA should assess and act on priority chemicals, both existing and new, in a timely manner;
• Green Chemistry should be encouraged and provisions assuring Transparency and Public Access to Information should be strengthened; and
• EPA should be given a sustained source of funding for implementation.

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The US EPA just announced a new research strategy designed to generate information about the health and environmental risks of nanomaterials.  See the strategy here.

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We've reported previously on air quality concerns raised with respect to natural gas development (see here, for example).  The Fort Worth Star-Telegram is reporting also on the issue, noting several recent air quality reports finding high levels of disulfide compounds associated with natural gas production.

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We have reported several times on the conflict between environmentalists looking for greater disclosure of the chemicals used in hydraulic fracturing and the service companies looking for protection for their trade secrets.  According to a NYT report, based on a few industry statements, "The natural gas industry is moving to disclose information about chemicals used in controversial extraction technologies in the wake of spills at drilling sites in Pennsylvania and as New York is proposing new regulations."

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In the last three days the U.S. EPA has made two announcements to change its pesticides program.  On September 30, 2009, they announced that they will publish proposed rule making within the next few months to require disclosure of all pesticide inert ingredients.  Typically, inert ingredients are only disclosed to U.S. EPA and are not disclosed to the public.  U.S. EPA believes disclosure requirement will discourage the use of inert materials that may be hazardous.  You can see the U.S. EPA announcement here.

The second announcement came today.  To further increase transparency, the agency is establishing a process for the public to review and comment on pesticide risk assessments and proposed registration decisions.  Starting TODAY, pesticide risk assessments and proposed registratioon decisions will be added to the public docket for a 30-day comment period.  Read more here.

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The Houston Chronicle is reporting on cleanup efforts regarding a spill of 10,500 gallons of fuel oil in the Houston Ship Channel after a ship collided with a barge.  The Coast Guard has reported that the ship's owner is taking responsibility for the cleanup, and that it doesn't look like a major problem at the moment.

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US EPA announced today that beginning January 1, 2010, large sources of greenhouse gas (GHG) emissions will be required to collect and report GHG emission data. These first reports, covering calendar year 2010, are to be submitted to US EPA in 2011. GHG reporting will be phased in for vehicle and engine manufactures (outside of the light-duty sector) beginning with model year 2011.

US EPA issued a proposed GHG Reporting Rule in April 2009. The public comment period for this rule expired on June 9, 2009. US EPA has indicated that GHG reporting requirements for some sources identified in the proposed are still under review.

 A copy of US EPA’s announcement can be viewed here.

We will continue to monitor US EPA’s activities and provide updates on the GHG Reporting rule as they become available.

[Update: Under the final rule, covered entities can cease reporting through reductions in GHG emissions. Additionally, US EPA reduced the number of source and supply categories initially subject to the mandatory reporting requirement - deferring final action on oil and gas systems, for example.

More information on the Final Rule may be found here.]

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The U.S. Court of Appeals for the Second Circuit has issued its decision in State of Connecticut, et al. v. American Electric Power Company Inc., et al. (Case Nos. 05-5104-CV and 05-5119-CV), finding that plaintiffs (several states and land trusts) may sue power companies for the public nuisance of global warming due to emissions of carbon dioxide.  From the court's decision, and setting the stage:

In 2004, two groups of Plaintiffs, one consisting of eight States and New York City, and the other consisting of three land trusts (collectively “Plaintiffs”), separately sued the same six electric power corporations that own and operate fossil-fuel-fired power plants in twenty states (collectively “Defendants”), seeking abatement of Defendants’ ongoing contributions to the public nuisance of global warming. Plaintiffs claim that global warming, to which Defendants contribute as the “five largest emitters of carbon dioxide in the United States and . . . among the largest in the world,” Connecticut v. Am. Elec. Power Co., 406 F. Supp. 2d 265, 268 (S.D.N.Y. 2005), by emitting 650 million tons per year of carbon dioxide, is causing and will continue to cause serious harms affecting human health and natural resources.

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American Electric Power (AEP) is poised to begin a carbon capture and storage project at its West Virginia Mountaineer Power Plant to test the viability of the technology, according to this article in the NYT.  Its plan - to inject about 100,000 tons of carbon dioxide, converted to a fluid, annually for two to five years, or roughly 1.5% of Mountaineer’s yearly CO2 emissions.  Very interesting.

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We previously posted on the criticisms leveled at the natural gas industry for being late to the climate legislation game in Washington (see, e.g., here).  Recent efforts by America's Natural Gas Alliance should come as no surprise, therefore, and are being noticed by the media.  See, for example, this article in the Houston Chronicle:  "Executives from some of the nation's largest energy producers are lobbying Congress for changes to a House-passed climate change measure that they say overlooks the benefits of natural gas and gives an unfair advantage to coal."

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The PA Department of Environmental Protection has announced that wind farms in two Pennsylvania counties will "receive funding under an American Recovery and Reinvestment Act program that provides cash assistance to energy production companies in place of earned tax credits."  The two grants total over $100 million.

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The European Chemicals Agency has today proposed to harmonize the classification and labeling of three chemical substances: Tris[2-chloro-1-(chloromethyl)ethyl] phosphate (TDCP); Tetrahydrofuran; and Abamectin.  The proposal is open for comments for 45 days.

For a press release see here.

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The European Chemicals Agency (ECHA) has proposed 15 chemicals to be designated as Substances of Very High Concern (SVHC).  

These substances were proposed to ECHA by EU Member States and by the European Commission. The public has until October 15 to provide comments, in particular focusing on why these chemicals should or should not be deemed SVHC. 

After the public comment period closes, ECHA’s Member States Committee will decide whether these substances should be placed on the Candidate List.

Once a substance is placed on the Candidate List, a manufactured or importer of an article that contains that substance in an amount greater than 0.1% has an obligation to notify its customers by providing the name of the substance and sufficient available information to ensure safe use of the article.

Further, once a substance has been placed on the Candidate List, it may eventually be subjected to Authorization and/or banned.

To see the press release, click here.

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U.S. EPA is seeking comment on new data related to its July 25, 2008, proposed rule, Federal Requirements Under the Underground Injection Control (UIC) Program for Carbon Dioxide (CO2)  Geologic Sequestration (GS) Wells (73 FR 43492).  In particular, it seeks comment on "a waiver process to allow GS injection above and between USDWs [Underground Sources of Drinking Water] under specific conditions in lieu of a blanket prohibition on injection above and between USDWs."

Comments are due October 15, 2009.

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Duke Energy Corp. is planning a fourth wind farm in Wyoming, dubbed "Top of the World," according to this article in the WSJ.  When finished, estimates are that it will provide enough energy to power 50,000 to 60,000 homes annually.

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In its Joint Explanatory Statement for the 2009 Omnibus Appropriations Act, Congress directed the Government Services Administration (GSA) to promote energy efficiency through the use of revolving doors.  In response, GSA is implementing its Revolving Door Initiative.  According to this Slate Article citing an MIT study, on average 8x as much air is exchanged when a swing door is opened as opposed to a revolving door and energy savings can be as much as 1.5% of total energy required to heat and cool a building.  Can GHG cap and trade legislation  be far behind!

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The Ninth Circuit Court of Appeals in a case titled Rialto v. West Coast Landing, recently discussed in detail and upheld the U.S. EPA's right to issue unilateral cleanup orders under CERCLA.  (42 U.S.C. 9606(a).)  The case is a good primer of the government's position on unilateral orders.

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On August 17, 2009, US EPA announced a pre-publication of a Notice of Public Rulemaking that would create technology-based effluent standards for discharges from airport deicing operations.  The proposed rule, if adopted, would require airports that conduct deicing operations and have 1,000 or more annual jet departures and 10,000 or more total departures to collect spent aircraft deicing fluid and treat the wastewater from these operations.  The proposed rule would give airport operators the option of conducting treatment on-site or sending the wastewater off-site to a treatment contractor or publicly owned wastewater treatment works.  In some cases, the proposed rule would also require a reduction in the amount of ammonia discharged from urea-based airfield pavement deicers or the use of airfield deicers that do not contain urea.

More information on the proposed rule can be found at:  http://www.epa.gov/guide/airport/

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If you have an appeal before ERAC, take note!

As part of Ohio's Budget Bill, Am. H.B. 1, amendments were made to Ohio Revised Code 3745.05(F) which placed strict time limits on the Ohio Environmental Review Appeals Commission.  The amendments mandates that the Commission issue a written order affirming, vacating or modifying the action appealed no later than the following schedule (1) December 15, 2009 for appeals filed before April 15, 2008, or (2) July 15, 2010 for appeals filed between April 15, 2008 and October 15, 2009, or (3) one year not later than twelve months after the filing of the appeal.

Due to these statutory amendments, the Commission is now issuing orders limiting de novo hearings to one hour total, split among the parties.  No discovery or dispositive motions, requests for continuance of hearing date or extensions of applicable deadlines will be considered or ruled upon by the commission.  Parties must file a case summary 5 days before the hearing date.  The case summary shall not exceed pages and must contain the assignments of error for review, a statement of facts and citations of pertinent authorities.  Some cases are being scheduled for hearing within a few weeks of notice of same. 

There is a movement to amend the statute due to due process and constitutionality concerns.  Time will tell -- the first hearings are scheduled for mid-September.

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Local opposition has put a stop to a carbon capture and storage demonstration project in Germany, according to this article in the Guardian.  It's good to know that 'numbyism' - i.e., 'Not under my back yard' - isn't just a U.S. phenomenon.

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The NYT has an interesting article on addressing global warming through geoengineering, i.e., through the use of technology.  At the same time, it rightly cautions us against unintended consequences.

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The Waynesboro News Virginian has a good article on the development of wind energy in Virginia's national forests and the conflicts it creates for environmental groups.

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The Energy Information Administration (EIA) has published an analysis of the Waxman-Markey climate legislation recently passed in the House.  It focuses on the impacts of the legislation's energy and environmental policy proposals on consumer energy choices and the implications for the economy.  While not comprehensive, it does reach some interesting conclusions.  For example:  "ACESA [i.e., the Waxman-Markey bill] increases the cost of using energy, which reduces real economic output, reduces purchasing power, and lowers aggregate demand for goods and services."

A copy of the full report can be found here.

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The NYT is reporting on the possible impact shale gas may have on the passage of climate legislation.  For example:  "[S]ome politicians on Capitol Hill are pushing for new natural gas incentives in climate legislation moving through Congress. They note that the fuel resource sits in many states, like Michigan and Pennsylvania, whose lawmakers are needed for passage of a bill."

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On July 31, 2009, Representative Louise Slaughter introduced legislation to amend CERCLA and create a grant program to assist with the investigation and remediation of waterfront brownfield sites. Under the proposal, eligible entities could receive up to $500,000 to assist with the design and implementation of water quality improvements, low impact development approaches, green infrastructure, remediation and management of sediments, or flood damage prevention associated with waterfront brownfields remediation and reuse. The legislation has been referred to the House Energy and Commerce Committee.

A copy of the proposal can be viewed here.

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The NYT has an interesting article on the money spent by various industry and environmental groups lobbying for and against climate legislation before the House last month.

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On July 20, 2009, Representative Xavier Becerra (D-CA) introduced legislation to amend the Internal Revenue Code to make permanent a tax incentive for environmental remediation costs.   If passed, it would affect expenditures paid or incurred after December 31, 2009.  See the proposed legislation HERE.

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On July 23, 2009, the House Subcommittee on Energy and the Environment will hold a hearing on the proposed Chemical Facility Anti-Terrorism Act of 2009 (HR 2868).  The proposed legislation would make permanent the prior temporary grant of authority to the Department of Homeland Security to regulate security practices at chemical facilities.  Included in the proposed legislation are provisions that would require certain covered chemical facilities to implement inherently safer technology to reduce the consequences of a terrorist attack. 

A copy of the legislation can be viewed HERE. 

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The United Nations’s Clean Development Mechanism Panel gave in-principle approval to the first set of emission reduction (or removal) projects in developing countries may earn certified emission reduction (CER) credits that may be traded, sold and used by industrialized countries to meet emission reduction targets under the Kyoto Protocol.  This first project involves the deployment of 30 million compact fluorescent light bulbs in Mexico, which will be distributed over the next three years with a goal of generating up to 7.5 million CERs.  For more, see here.

For more information on the Clean Development Mechanism, see here.

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On July 10, 2009 the EPA identified hard rock mining as the first new class of facilities for which EPA will develop financial assurance regulations under CERCLA Section 108(b).  Hard rock mining includes facilities that  extract, beneficiate or process metals (e.g., copper, gold, iron, lead, magnesium, molybdenum, silver, uranium, and zinc)and non-metallic, non-fuel minerals (e.g., asbestos, gypsum, phosphate rock, and sulfur).  Additional classes of facilities that EPA intends to examine by the end of 2009 for inclusion are:  hazardous waste generators, hazardous waste recyclers, metal finishers, wood treatment facilities, and chemical manufacturers.  Additional details on EPA’s reg development effort can be found HERE.

Final regulations are supposed to follow in 2 years with implementation dates not later than 2 years thereafter.  Requirements are driven by a February 25, 2009 court order (see .pdf) arising from the case Sierra Club v. Johnson (ND California, Case No. C 08-01409 WHA).

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Wind farms may not be the energy panacea that we are looking for, according to this article in Examiner.com (Cleveland, Ohio).  The problem - Impact on wildlife such as the Oklahoma prairie chicken.

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This article in the Houston Chronicle discusses Senate challenges to climate legislation recently passed in the House.  Regional differences play a key role.

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The Washington Post is reporting that plans by T. Boone Pickens to construct the world's biggest wind farm in Texas - 4,000 megawatts at a projected cost of $10 billion - has been put on hold due to tight credit markets and low natural gas prices.

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The U.S. Senate Committee on Environment and Public Works is holding a hearing today to address the need for climate legislation, entitled, “Moving America toward a Clean Energy Economy and Reducing Global Warming Pollution: Legislative Tools.”  The speakers include the Secretary of the Department of Energy, Steven Chu, the Administrator of the Environmental Protection Agency, Lisa Jackson, and the Director of Climate Programs for the Natural Resources Defense Council.

Cap-and-trade appears to be favored by many - but not all - of the participants.

Copies of the prepared testimony can be found here.

[Update:  A related Washington Post article can be found here.]

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Ohio EPA announced a new Environmental Insurance Program (EIP) offered through the Ohio EPA’s Site Assistance and Brownfield Revitalization (SABR) Office.  The EIP makes Ohio EPA Voluntary Action Program (VAP) staff available to make an “insurance readiness” review of assessment and remediation documentation.  In turn, participants are able to get quotes from three insurance providers for Pollution Legal Liability insurance at up 10% off the standard premium rates.  Providers currently participating in the program include:  ACE Environmental Risk, Great American Insurance Company and Navigator’s Specialty Insurance Company.  For more information on the program, click here and here.

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This interesting NYT article suggests the incandescent light bulb is “not dead yet” despite the congressional mandate on energy efficiency due to take effect in 2012.  We’ll see.  But what is clear is that necessity remains the mother of invention.

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The NYT is reporting that environmentalists have lost every case before the U.S. Supreme Court this past term, speculating that it is connected to the Court's new conservative membership.  Maybe its simply the merits of the cases?

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A California Superior Court Judge has halted an expansion at Chevron's Richmond oil refinery until it produces a new environmental impact report and receives a new permit from the Richmond City Council, according to this article in the San Francisco Chronicle.  The downside - workers will lose $50 to $75 million in income and the city will lose $61 million pledged to community programs until the issues get resolved.

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On June 24, 2009 the City of Cincinnati passed an Environmental Justice Ordinance ("EJ Ordinance").  Believed to be the first of its kind for a City, the EJ Ordinance requires certain “proposed projects” to undergo an environmental review by a City examiner and receive an EJ Permit before the project can operate in the City.  An EJ Permit will be denied if the project would cause a public nuisance, which is defined as significantly interfering with public health by: 1) causing an excess cancer risk; 2) causing an excess risk of acute health effects; 3) causing an excess risk in the event of an accident; or 4) constituting an Air Pollution Nuisance as defined in Ohio Administrative Code 3745-15-07. The EJ Ordinance is set to take effect in six months. In the mean time, the City will need to allocate funding in the 2010 budget required to hire an EJ examiner, pay for required public notices, and cover costs for environmental consulting support.

A copy of the EJ Ordinance as it passed is attached.

A June 30, 2009 letter to Cincinnati Beacon by Vice Mayor David Crowley, who spearheaded the legislative effort, may be found here.
 

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Today the U.S. EPA reversed itself and granted California’s Greenhouse Gas (“GHG”) waiver request, allowing the State of California to enforce its own GHG emission standards for new motor vehicles – starting this model year. President Obama recently announced a new national policy to increase motor vehicle fuel efficiency and reduce GHG pollution; new national motor fuel standards would start with model year 2012 vehicles. Once the national program goes into effect, California has stated that it will find automakers in compliance with its state standards, so long as automakers are in compliance with national standards. It will be interesting to see how the two standards will dovetail together at that time. For a history of California’s waiver request, see here.

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Environmental Protection Agency has proposed stronger National Ambient Air Quality Standards for nitrogen dioxide. The proposed rule establishes, for the first time, a one-hour NO2 standard at a level between 80 – 100 parts per billion (ppb) and adds additional monitoring requirements for areas within 50 meters of major roads in cities with at least 350,000 residents.

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We reported previously on U.S. EPA's proposed finding that greenhouse gas (GHG) emissions are pollutants that endanger the public's health and welfare (a first step to potential regulation under the Clean Air Act).  Comments were due yesterday, and can be found here (search Docket No. EPA-HQ-OAR-2009-0171).  Just a quick look at the docket suggests that hundreds of comments were filed.

[Update:  There is a controversy brewing over whether EPA suppressed internal documents challenging its decision to move forward with the endangerment finding.  See here for a good roundup of the issue (CBS News Political Hot Sheet).  Also, you can find what may be the source of the controversy here (including the internal EPA emails and study) at the Competitive Enterprise Institute.  Interesting.  (Moved up.)]

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The LA Times is reporting that the Administration has set aside 1,000 sq. miles of public lands in the West for two years of solar energy study and environmental review.

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On June 22, 2009, the U.S. Supreme Court, in its last environmental ruling of the term, discussed the permitting authority distinction between a Clean Water Act Section 402 (NPDES discharge) permit, a Section 306 (pollutants from certain categories of new sources) permit and a Section 404 (fill/dredge) permit.  In Coeur Alaska, Inc. v. Southeastern alaska Conservation Counsel, the issue was whether gold mining slurry that was to be discharged into a lake was properly regulated under the Army Corps' CWA Section 404 permit program or whether U.S. EPA had the obligation to regulate the slurry under its CWA Section 402 and/or 306 authority.   In finding that the Section 404 permit was proper, the Court reversed the Ninth Circuit ruling which had vacated the Army Corps Section 404 permit and found that a Section 306 permit was required.  The case has a nice discussion of the allocation of authority in the Section 404 permitting process.

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Valero Energy Corp. is using a windfarm to produce electricity for its oil refinery, according to this article in the WSJ.  Ready to operate at capacity in August, Valero believes that the investment will pay for itself in 10 years.  (Note:  Subscription required).

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The NYT is reporting that the House passed the Waxman-Markey climate bill with a vote of 219-212.  The take away:  "The legislation, which passed despite deep divisions among Democrats, could lead to profound changes in many sectors of the economy, including electric power generation, agriculture, manufacturing and construction."  Now we wait to see what the Senate will do.

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We've noted previously the challenges faced by Canadian oil sands projects (see here, e.g.).  This NYT article reports that 18 environmental groups - led by the Sierra Club - launched a campaign this week aimed at discouraging imports of crude oil derived from Canadian tar sands into the U.S.

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As Congress considers the nation's first cap-and-trade legislation, California regulators are thinking about imposing the nation's first fee on carbon dioxide emitters as a means of funding the state's greenhouse gas emissions law, according to this article in the Mercury News.  If adopted, it would raise approximately $50 million annually to fund the regulatory program.

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This article in the NYT discusses the risks of a geothermal project in California that intends to use a method to drill into the subsurface that was shut down in Basel, Switzerland, in 2006, due to earthquake concerns.  The take-away:  "[While s]eismologists have long known that human activities can trigger quakes, [] they say the science is not developed enough to say for certain what will or will not set off a major temblor."

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The Hill is reporting that the Waxman-Markey climate bill may make it to the House floor by the end of this week.  It is still unclear whether the legislation has enough votes to pass, however.

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The U.S. Supreme Court has upheld a permit issued under the Clean Water Act by the Army Corps of Engineers that allows mining waste to be dumped into Lower Slate Lake, north of Juneau, Alaska, according to this article in the NYT.  Environmental groups opposed the permit because it might turn the lake "into a lifeless waste dump."

A copy of the decision can be found here (Coeur Alaska, Inc. v. Southeast Alaska Conservation Council).

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SolarReserve is hoping to construct one of the largest solar plants in the world in Nevada, using heat-transfer technology developed for space rockets, according to this article in the Washington Post. The plant would consist of a field of mirrors focusing sunlight on a receiver what would heat molten salt to 1,050 degrees Fahrenheit, which would then be flowed to a storage tank and used to generate steam and power conventional steam turbines.

But there are issues raised by the Air Force.

Very interesting article.

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U.S. EPA has set November 10, 2010, as the date by which facilities must prepare or amend, and implement changes to, their SPCC Plans to comply with substantive amendments finalized on December 5, 2008 (and earlier, where applicable).  Contrary to previous agency proposals, this date applies to all facilities, including those that meet the "qualified facilities" criteria - meaning that small production facilities are required to meet this deadline as well.

Moreover, EPA emphasized:

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The WSJ is reporting that several of the lawmakers involved in drafting climate legislation have a financial stake in companies that will be affected.  (Note:  Subscription required).

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This article from the NYT reports on a study commissioned by the American Petroleum Institute (API) finding that the U.S. oil and gas industry invested $58.4 billion over the past 8 years in greenhouse gas-mitigating technologies, while the federal government invested only $19.2 billion over the same period.  Not bad.

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This article from The Hill reports that more and more Democrats are poised to vote against the Waxman-Markey climate legislation now being pushed by Speaker Pelosi.  A possible alternative being discussed - the Senate bill being put together by Senate Energy and Natural Resources Committee Chairman Jeff Bingaman (D-N.M.).

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Companion bills were introduced yesterday in both the U.S. House and Senate to repeal the exemption for hydraulic fracturing in the Safe Drinking Water Act and to require the disclosure of chemical constituents used in frac fluids (the "FRAC ACT" - Fracturing Responsibility and Awareness of Chemicals Act).  More information can be found here.  Copies of the legislation can be found here (Senate - S. 1215) and here (House - H.R. 2766).

[Update:  For more, see here (article from WSJ, subscription required); and here (from the Wayne Independent).]

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Some alternative energy sources are having better success at encouraging investment than others, according to this article from the NYT.  Not surprisingly, there is growing competition between alternative-energy technologies.

[Update:  A related article on local community opportunities can be found here, from the Akron Beacon Journal.]

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This article in the Fort Worth Business Press points out one of the major issues presented by recent efforts to more-strictly regulate the use of hydraulic fracturing in oil and gas development - who should have jurisdiction, the federal government or state oil and gas commissions?  Not a bad article.

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The Eleventh Circuit Court of Appeals, in a case styled Friends of the Everglades v. So. Fla. Water Mgmt., is the first court to rule on the USEPA's water transfer rule (40 CFR 122.3(i)), which provides that the discharge of one meaninfully distinct water into another meaningfully distinct water does not require a NPDES permit.  The issue in this case was whether the pumping of dirty canal water into a lake required a NPDES permit.  The 11th Circuit, in finding the Clean Water Act language on this issue ambiguious, said the USEPA's rule was a reasonable interpretation of the Act and, therefore, no permit was required. 

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The Department of Interior has forwarded to Congress a report containing recommendations on a national program to reduce greenhouse gas emissions through a carbon capture and storage program on public lands.  More information, including a copy of the report, can be found here.

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The Ground Water Protection Council (GWPC) has released a new study on state ground water protection regulatory programs, a copy of which can be found here.  The electronic copy has hyperlinks to background materials.  A nice resource.

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European Chemical Agency’s (ECHA) Member State Committee adopted a consensus opinion that the following seven Substances of Very High Concern should be included in the Authorization List:

·       musk xylene – a fragrance enhancer which is used for example in detergents, fabric softeners and fabric conditioners

·       4,4'-diaminodiphenylmethane (MDA) – a hardener which is used for example in epoxy resins and adhesives

·       short chained chlorinated paraffins (SCCPs) – a substance mostly used as flame retardant and/or plasticizer in various applications such as high-performance rubber, sealants, paints or textile coating

·       hexabromocyclododecane (HBCDD) – a flame retardant which is used for example in polystyrene, which is then further processed for the production of insulation panels/boards or packaging products, and in textile applications

·       bis(2-ethylhexyl)phthalate (DEHP) – a plasticizer which is used in a wide range of PVC and other polymers applications, such as for example flooring, roofing, coated fabrics, medical devices or primary packaging of medicinal products, as well as in various preparations such as for example sealants, adhesives and inks

·       benzylbutylphthalate (BBP) – a plasticizer which is used for example in polymer products, and in particular in PVC for flooring applications, in textile and leather coating, as well as in various other preparations such as sealants, coating and inks or adhesives

·       dibutylphthalate (DBP) – a specialist plasticizer which is used in particular in various polymer (PVC/non-PVC) applications (such as floor covering or primary packaging of medicinal products), and as a component of various preparations such as adhesives or paints

ECHA is expected to finalize its recommendation regarding these substances and submit it to the European Commission by June 1. The final decision as to whether these substances will be subject to Authorization will be made by the European Commission. 

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The Environmental Design of Electrical Equipment Act (EDEE) was introduced into the United States House of Representatives on May 14, 2009.  A companion version has not yet been introduced in the Senate. The bill, which would amend the Toxic Substances Control Act of 1976, seeks to prohibit the manufacture of any “electroindustry” product that contains “a concentration value greater than 0.1% by weight of lead, mercury, hexavalent chromium, polybrominated biphenyls (PBB), and polybrominated diphenyl ethers (PBDE) as measured in any homogeneous material contained in the electroindustry product, or a concentration value greater than 0.01% of cadmium as measured in any homogeneous material contained in the electroindustry product.” The stated purpose behind this act is to establish a national standard so that manufacturers are not subjected to conflicting state standards. The bill also specifies certain exemptions although there is no specific exemption that applies to aerospace.  Rather, the exemptions primarily relate to the areas of interest to the group behind this bill, the Association of Electrical and Medical Imaging Equipment Manufacturers (NEMA). This bill bears watching and it may be worthwhile for the AIA work with NEMA and seek an amendment to the bill that provides for an aerospace exemption.

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OSHA’s Notice of Proposed Rulemaking for Globally Harmonized System (“GHS”) was recently sent from OHSA to the Office of Management and Budget (the “OMB”). OMB has up to 90 days to review the notice and then the notice is expected to be published in the Federal Register. This is just the next step in the process to have OSHA’s Hazard Communication Standard be revised to utilize GHS and have the United States system of hazard communication be consistent with the rest of the world’s.

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This article in the NYT takes a look at the renewed interest by major oil companies in ethanol production.  The motivation - ambitious federal mandates for refineries regarding biofuel-gasoline blends.

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The Houston Chronicle is reporting that compromises made to get approval of the Waxman-Markey climate change legislation may partly defeat the purpose of having a cap-and-trade program according to a study done by Point Carbon, a Norway-based news and analysis service covering electricity and natural gas markets.  The reason - leveling the playing field between natural gas and coal reduces the financial incentive favoring lower-emitting fuels like natural gas.

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This article from the NYT looks at how energy plans proposed by prior Administrations and mandated by Congress have fared over the years.  As you might expect, the results are poor.

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The NYT is reporting that the Waxman-Markey climate legislation has been approved by the House Energy and Commerce Committee, largely along party lines.  Representative Rogers of Michigan said, “This is the biggest energy tax in the history of the United States."  Stay tuned.

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A new report from the consulting firm Wood Mackenzie suggests that this may not be a good time for state and federal mandates on renewable resources due to declining demand for electric power and new power plants scheduled to come online in the next few years, according to this article in the Houston Chronicle.  No surprise there.

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At the recent Fourth Meeting of the Conference of the Parties to the Stockholm Convention on Persistent Organic Pollutants, the delegates adopted an amendment to the Annexes to add nine additional chemicals to the list of Persistent Organic Pollutants. For the list of nine chemicals see here.  Responsibilities under the Convention with respect to these newly added chemicals will be effective May 9, 2010 in those countries that have ratified the Convention (“Party States”), unless such Party State (a) made a declaration in its ratification of the Convention that amendments to Annexes A, B and C of the Convention would not be effective without a ratification of such amendments; or (b) submits a written notification that it is unable to accept the amendment. Chemicals listed in Annexes A, B and C to the Convention are subject to varying degrees of regulations by the Parties to the Convention. 

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U.S. EPA has scheduled the first of two public hearing on its proposed greenhouse gas endangerment finding for next Monday, May 18, 2009, from 9:00 a.m. to 8:00 p.m. in Arlington, Virginia.  More information - including an audio link to the hearing - can be found here.

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U.S. EPA is reviewing whether to grant an ethanol industry request to raise the maximum amount of ethanol that can be added to gasoline to create a 15-percent blend from 10 percent allowed today, a move that could affect more than 500 million gasoline engines used in large pickups to lawn mowers, according to this NYT article.

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The NYT is reporting that the Obama administration will retain a wildlife rule preventing the government from invoking the Endangered Species Act to restrict GHG emissions allegedly threatening the polar bear and its habitat.

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The Washington Post is reporting that President Obama and Vice President Biden are pressing House Democrats to take action on the American Clean Energy and Security Act of 2009 issued for comment last month by Henry A. Waxman (D Ca.), Chairman of the Energy and Commerce Committee, and Edward J. Markey (D. Mass.), Chairman of the Energy and Environment Subcommittee.  Much of the concern appears to be that this initiative stands in the way of health care legislation that the Administration wants to move forward.

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U.S. EPA has proposed a strategy for increasing the nation's supply of renewable fuels that includes a percentage-based standard that refiners and others must ensure is used in transportation fuel; and that requires renewables to achieve greenhouse gas reductions when compared to the gasoline and diesel fuels they displace.

For more information, see here.

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A Vorys attorney recently had the opportunity to participate in a small group lunch with a member of the House Energy and Commerce Committee this week and shared several insights into the status of the Waxman climate change bill. First and foremost, it was clear to this Committee member that Chairman Waxman does not have the votes to move the bill as presently written out of the Energy and Commerce Committee.  Blue Dog Democrats from the Midwest have said quite clearly that they will not vote for the current bill unless it is changed to, as one Blue Dog member put it, "make it less punitive to coal states."

There are a significant number of issues now being negotiated between the Blue Dogs and Chairman Waxman, including the level of energy that must be produced from renewable sources and the target date for achieving that goal; the variety of technologies that will be included in the definition of biomass energy production; and perhaps the biggest issue, whether CO2 emission allowances will be auctioned or distributed for free. The Blue Dogs are almost uniformly opposed to using the auction of allowances to pay for other unrelated government programs, like healthcare reform.

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U.S. EPA has submitted a proposed finding to OMB that greenhouse gas emissions are pollutants that endanger the public's health and welfare, according to this report from the Washington Post.  If finalized, it could lead to the regulation of carbon dioxide under the Clean Air Act.

[Update:  EPA issued the proposed finding today, providing for a 60-day public comment period following publication in the Federal Register.  A pre-publication copy can be found here.  (Moved up).]

[Update:  The proposed finding has now been published in the Federal Register here (as well as supporting documents).  Comments are due on or before June 23, 2009, Docket No. EPA-HQ-OAR-2009-0171.  (Moved up).]

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California has adopted the nation's first low-carbon fuel mandate in an effort to reduce associated greenhouse gas emissions, according to this article from the LA Times.  The new rules require a reduction in the carbon content of fuels sold in the state by 10 percent by 2020 (including emissions related to the delivery of fuels to California consumers).

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The House Committee on Energy and Commerce is holding hearings on the American Clean Energy and Security Act of 2009 issued for comment late last month.  Related documents and videos of the testimony can be found here (including, for example, testimony from the new Administrator of U.S. EPA, the new Secretary of U.S. DOE, representatives of electric power producers and The Heritage Foundation and the American Enterprise Institute).  Interesting.

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Clean energy isn't cheap, according to this report from USA Today.  California, for example, has some of the highest electric rates in the country, in part because it requires twenty-percent of its power to be produced from clean energy sources by 2010.

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The PA Department of Environmental Protection has announced new discharge standards for industrial wastewater high in total dissolved solids (TDS), effective January 2011.  This could have an impact on energy development in the Marcellus Shale, and is being addressed by the Pennsylvania Oil & Gas Association.

DEP plans to undertake a rulemaking to amend the water quality regulations accordingly some time this summer, allowing interested parties an opportunity for public comment.

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President Obama's new science adviser, John Holdren, has indicated that geoengineering the climate - by introducing pollution particles into the atmosphere, for example -  is being considered as one method for addressing global warming concerns, according to this article in the Washington Times.  The law of unintended consequences suggests, though, that we might want to be very cautious in our conclusions regarding global warming before relying on this technology.

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Department of Interior Secretary, Ken Salazar, is hosting a series of regional public meetings to gather public comment on a comprehensive energy strategy for the Outer Continental Shelf.  Videos of his comments and copies of his presentations can be found here.

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Henry A. Waxman (D Ca.), Chairman of the Energy and Commerce Committee, and Edward J. Markey (D. Mass.), Chairman of the Energy and Environment Subcommittee, released a discussion draft of The American Clean Energy and Security Act of 2009.  Among other things, the Act seeks to encourage the development of renewable energy sources and carbon capture and storage technologies.  Both a copy of the draft and a summary can be found here.

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U.S. EPA has announced that it is extending the deadline for compliance with recent, substantial amendments to the SPCC Rule until January 14, 2010.  EPA will also be asking for comment on whether a further extension of the rule may be warranted for some regulated entities.

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Last month, an SMU researcher issued a report concluding that natural gas production in the Barnett Shale released significant volumes of volatile organic compounds.  Last week, the Barnett Shale Energy Education Council released a counter-study concluding that natural gas drilling in the Shale released far less air pollution than the SMU estimate, according to this report from the Star Telegram.

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Cabot Oil and Gas Company has been charged with violations of Pennsylvania water law in connection with drilling certain natural gas wells in Susquehanna County, according to this report from News Channel 34.  A more detailed report can be found here from the Wayne Independent.

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Today the U.S. EPA proposed a rule that would require approximately 13,000 large source facilities to annually report their greenhouse gas emissions.  The facilities covered include fossil fuel suppliers, industrial chemical suppliers, motor vehicle and engine manufactures and large direct GHG emitters (defined as facilities that emit 25,000 metric tons or more of GHG emissions).  The proposed rule will soon be published in the Federal Register; a pre-publication copy can be found here.

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On February 26, 2009, President Obama proposed to increase U.S. EPA's budget nearly 30% ($3 billion) to $10.5 billion.  One highlight of the budget initiative is "strengthening EPA's core research, enforcement and regulatory capabilities."  The proposal also includes reinstatement of the Superfund excise tax which would collect over $1 billion annually to fund contaminated site clean ups. 

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Yesterday the United States Supreme Court heard oral arguments in Burlington Northern and Santa Fe Railway Company v. U.S.  At issue is whether manufacturers of hazardous substances can be held liable for contamination that occurs after the manufacturer's product is sold.  Also at issue is apportionment of liability.  The Supreme Court's decision will be much anticipated.

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The NYT is reporting that U.S. EPA is expected to act for the first time to regulate carbon dioxide and other greenhouse gases.  If that happens, the article goes on to note that "it would set off one of the most extensive regulatory rule makings in history."

For related posts, see here.

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EPA has decided that greenhouse gas output cannot be considered by officials reviewing federal applications to build new coal-fired power plants, according to this article from the NYT.  This is in response to a decision by EPA's Environmental Appeals Board last month, Deseret Power Electric Cooperative.  A complete copy of the interpretive memorandum can be found here.

[Update:  U.S. EPA published a notice of the interpretive memorandum in the Federal Register indicating that challenges to the interpretation must be brought in the U.S. Court of Appeals for the D.C. Circuit by March 2, 2009.  (Moved up.)]

[Update:  U.S. EPA reconsidering its interpretation:  "EPA today granted a petition for reconsideration of a Bush Administration memo regarding the scope of the Clean Air Act. The interpretive memo, put forward by then-EPA Administrator Stephen Johnson in December 2008, addresses when the Prevention of Significant Deterioration program applies to carbon dioxide, a chief greenhouse gas."  (Moved up).]

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This article from the NYT reports that international oil executives are eager to work with the new Administration to fashion policies to address global warming.

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On February 6, 2009, the Sixth Circuit Court of Appeals issued an opinion in US v. Cundiff, et al. wherein the Court made significant effort to unravel the three non-majority opinions of the US Supreme Court's Rapanos decision concerning federal wetland jurisdiction.  The case is interesting for the Court's struggle to find guidance from Rapanos.  "Parsing any one of Rapanos's lengthy and technical statutory exegeses is taxing, but the real difficultly comes in determining which - if any - of the three main opinions lower courts should look to for guidance."   Id. at p. 8.  After many pages of anguished effort, the Court eventually found that two of Rapanos's three main opinions were met (meeting a majority), and thus a decision could be made without further head-banging.  

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This is interesting:  In 2008, the U.S. became the world leader for total wind production, overtaking Germany (the leader for 2007), according to this Daily Tech article.  It goes on to note that some time this year the U.S. is expected to become the world leader in installed solar power as well.

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From the NYT - geography may impact climate legislation:  "'There’s a bias in our Congress and government against manufacturing, or at least indifference to us, especially on the coasts,' said Senator Sherrod Brown, Democrat of Ohio. 'It’s up to those of us in the Midwest to show how important manufacturing is. If we pass a climate bill the wrong way, it will hurt American jobs and the American economy, as more and more production jobs go to places like China, where it’s cheaper.'"

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The PA Department of Environmental Protection has concluded that several wells near gas-drilling operations in Susquehanna County have become contaminated with methane, but have not identified the source, according to this article in the Times Leader.

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Yesterday, the ECHA released its draft recommended list of substances to be subject to authorization (also known as Annex XIV substances). The draft list contains seven of the fifteen substances currently contained on the Candidate List. The seven substances are:

• 5-tert-butyl-2,4,6-trinitro-m-xylene (musk xylene)
• Alkanes,C10-13,chloro (short chain chlorinated paraffins; SCCPs)
• Hexabromocyclododecane (HBCDD) and all major diastereoisomers identified
• 4,4'-Diamino diphenyl methane (MDA)
• Bis (2-ethylhexyl) phthalate (DEHP)
• Benzyl butyl phthalate (BBP)
• Dibutyl phthalate (DBP)

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On December 28, 2008, U.S. EPA published direct final amendments to the All Appropriate Inquiry Rule, recognizing ASTM International’s E2247-08 Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process for Forestland and Rural Property as compliance with the All Appropriate Inquiries regulation and allowing its use to satisfy the statutory requirements for conducting all appropriate inquiries under the Comprehensive Environmental Response, Compensation and Liability Act. This standard may be used to investigate large tracts, greater than 120 acres, of forestland or rural property. The amendment will go into effect on January 22, 2009.

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On January 7, 2009, the U.S. Court of Appeals for the Sixth Circuit vacated a final U.S. EPA rule (published on November 27, 2007) by deciding that the U.S. EPA had no authority to exempt the application of pesticides from NPDES permitting.  The Court found that pesticides, even those in compliance with FIFRA, are "pollutants" under the Clean Water Act and require a permit to be discharged to a water of the United States.

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Interesting.  Efforts to address California's significant budget shortfall are being opposed because they involve - at least for now - a waiver of certain environmental protections for 10 big highway projects, according to this article in the LA Times.

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Increased wastewater volumes from Marcellus Shale drilling activities have led to an interesting partnership.  According to this press release, "The Department of Environmental Protection and the natural gas drilling industry have launched a partnership to explore innovative methods to treat wastewater generated from oil and gas well drilling operations in the commonwealth. Working with the partnership, the department will develop a technology-based standard for total dissolved solids in oil and gas wastewater."

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Unwanted by some.  This article from the NYT observes that many activists single out production from oil sands when it comes to environmental impact, noting that a recent RAND Corporation study estimated that oil from the oil sands generates about 10 to 30 percent more greenhouse gases than conventional crude.  Still, as the article points out, however, there are energy security benefits.

[Update:  There are similar issues raised in the U.S. regarding oil shale development on public land in Colorado, Utah and Wyoming, according to this article from the AP.]

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Nancy Pelosi, Henry Waxman, Barbara Boxer.  According to this article in the Washington Post, each is in a position to legislate on global warming, promote 'green' industries and alternative energy, and/or limit the use of toxic chemicals.

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We have noted in previous posts the challenges presented in New York for producers looking at the Marcellus Shale.  One involves the possible use of a Supplement to the Generic Environmental Impact Statement (GEIS) applicable to natural gas and oil drilling issued by the NY Department of Environmental Conservation.  A draft of the Supplemental GEIS was published for public comment in October of this year, and included topics such as the use of water from surface and groundwater sources; and the removal and proper disposal of spent fracture fluids from the well site.  The public comment period closed this past Monday, December 15, 2008.

At least one congressman has urged the Department to delay issuing any new gas drilling permits in the shale until after completion of the Supplemental GEIS, according to this article in the Hudson Valley Press Online.  He has also introduced legislation to eliminate the exemption for hydraulic fracturing in the Safe Water Drinking Act.

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Central City, Ky., may be the site of a new coal-to-natural-gas facility to be constructed by ConocoPhillips and Peabody Energy Corp., according to this article in the Houston Business Journal. Designated Kentucky NewGas, the facility is expected to adopt low-emissions design criteria that will result in less than 5 percent of the emissions of a similarly sized traditional coal plant.

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The Susquehanna River Basin Commission has adopted several amendments to its regulations governing approval of E&P projects targeting the Marcellus and Utical shale formations and involving the withdrawal, diversion or consumptive use of waters of the Susequehanna River Basin.  Effective January 1, 2009, the new rules require - among other things - use of the approval-by-rule process for consumptive water uses associated with these projects.  For more, see a copy of the final rules here.

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President-elect Obama appears likely to name the current director of the Lawrence Berkeley National Laboratory, Steven Chu, as his Energy Secretary; and Carol M. Browner, the former U.S. EPA Administrator, as the top White House official on climate and energy policy.  Officials state that he is also likely to name  Lisa P. Jackson, New Jersey’s commissioner of environmental protection, as the new head of U.S. EPA.  From the NYT:  "[T]hey will have the task of carrying out Mr. Obama’s stated intent to curb global warming emissions drastically while fashioning a more efficient national energy system. And they will be able to work with strong allies in Congress who are interested in developing climate-change legislation, despite fierce economic headwinds that will amplify objections from manufacturers and energy producers."

No mention in the article of likely costs to the economy, however.

[Update:  Appointments were formally announced here.]

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Not everyone is against development.  Last summer, NY imposed a moratorium on horizontal drilling in order to study its environmental impacts.  The NY Chemung County Chamber of Commerce  is encouraging Albany to finish the study and begin drilling, according to this report on WENY-TV.  Lost revenue and jobs is the concern - measured potentially in the billions of dollars.

[Update:  Is it driving development to Pennsylvania?  According to this article from Pressconnects.com, Fortuna is looking south to PA because of the regulatory matters in NY.  (Moved up from an earlier post.)]

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In earlier posts we have noted concerns regarding the hydraulic fracturing of natural gas wells and the potential for its regulation.  Legislation has been introduced in Congress to repeal the exemption for hydraulic fracturing under the SWDA, and referred to the House Committee on Energy and Commerce.  More from the Star-Telegram:  "A study by the Environmental Protection Agency determined that hydraulic fracturing posed little risk to water. Environmentalists say that the study is flawed and that the exemption poses health risks."  Not a bad article overall.

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Last year, U.S. EPA and the Army Corps of Engineers issued a guidance document addressing the scope of the agencies' jurisdiction under CWA s.404 after the U.S. Supreme Court's decision in Rapanos v. United States.  That document has been revised following receipt and review of over 66,000 public comments, and can be found here.  Some of the points identified by the agencies as "key" -

The agencies will assert jurisdiction over traditional navigable waters, which includes all the waters described in 33 C.F.R. s.328.3(a)(1), and 40 C.F.R. s.230.3(s)(1); [and,]

The agencies will assert jurisdiction over wetlands adjacent to traditional navigable waters, including over adjacent wetlands that do not have a continuous surface connection to traditional navigable waters.

And don't forget the significant nexus analysis that the agencies will use to assert jurisdiction over certain "non-navigable tributaries" that are intermittent in nature!

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Among other things, residents are concerned about the use of local lake and ground water by drilling companies, according to this article in the Shreveport Times.  This isn't the only basin that shale production raises issues over water with local citizens.

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Concerns over the impact of hydraulic fracturing have been raised with increasing frequency over the last several years.  This article from Scientific American is just one example of the kind of reporting we are seeing, challenging the exemption for frac water contained in the SWDA and a producer's community-right-to-know obligations.

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U.S. EPA has redefined the term "navigable waters" for purposes of the Spill Prevention, Countermeasure and Control rule (SPCC rule) (40 C.F.R Part 112). Restored to the regulatory definition promulgated by EPA in 1973, the term now includes:

1. All navigable waters of the United States, as defined in judicial decisions prior to passage of the 1972 Amendments to the Clean Water Act;
2. interstate waters;
3. intrastate lakes, rivers, and streams used by interstate travelers; and
4. intrastate lakes, rivers, and streams from which fish or shellfish are taken and sold in interstate commerce.

On its face, and for the time being, this is a significant reduction in the definition's reach.

[Update: A Federal Register copy of the rule can be found here.]
 

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On July 25, 2008, U.S. EPA proposed regulations for the underground injection of CO2 for sequestration under the Safe Water Drinking Act's UIC program. EPA has extended the deadline for filing comments from November 24, 2008, to December 24, 2008. A copy of the original rulemaking proposal can be found here.

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On July 17, 2002, U.S. EPA unexpectedly amended the Oil Pollution Prevention Regulation (40 C.F.R. Part 112), substantially increasing the demands imposed on producers when preparing and implementing their spill prevention, control and countermeasure (SPCC) plans. Recognizing the increased burdens placed on producers, EPA extended the deadline for compliance several times to review and address the issues created by its regulatory amendments.

Yesterday, EPA announced new, final SPCC rule amendments designed "to provide clarity, tailor requirements to particular industry sectors, and streamline certain requirements while maintaining protection of human health and the environment." Among other things, EPA states that the revised rule will exempt intra-facility gathering lines already regulated by U.S. DOT; and "[p]roduced water containers that do not contain oil in harmful quantities." It will also contain requirements tailored for marginal production facilities and compliance alternatives for produced water containers that are not otherwise exempt.

An update will be provided once the revised rule is posted.

[Update: A pre-publication copy of the rule can be found here.]

[Update: U.S. EPA is proposing to extend the deadlines for compliance for certain facilities, including certain oil production facilities. Comments are due December 26, 2008.]

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We can expect a more aggressive stand on environmental issues.  According to this article from MSNBC, Rep. H. Waxman (D-CA) has replaced Rep. John Dingell (D-MI) as chairman of the House Energy and Commerce committee on a vote of 137-122 in the Democratic Party caucus.  The energy sector can expect significant, proposed changes as a result, particularly with respect to issues of global warming and water quality.

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In the Energy Policy Act of 2005, Congress clarified that storm water discharges from field activities associated with E&P operations, including construction activities, are exempt from NPDES permitting requirements absent a contaminated discharge.  The next year, U.S. EPA completed a rulemaking codifying that statutory exemption in its regulations; and further establishing an exemption for storm water discharges containing sediment only, finding that such discharges did not constitute a violation of a water quality standard.

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MMS has announced that it would begin the process to issue more leases at a site at least 50 miles off the coast of Virginia, according to this article in the LA Times.  The comment period ends December 29th.  You can find a copy of the notice here.

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The Texas Railroad Commission has held that more than two dozen east Fort Worth landowners who didn’t sign a mineral-rights lease nonetheless may be forced to join a drilling unit, according to this article in the Star-Telegram.

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We're seeing a lot of articles like this:  "Oil prices last week hovered just over $60 a barrel after peaking around $140 this summer. Will today’s falling oil prices also bury fledgling efforts to convert the US auto fleet from gas guzzling SUVs into fuel-sipping hybrids? Will investors still want to invest in advanced biofuels? Will the new president slow the push for energy security?"  (From the Christian Science Monitor.)  It depends in large part on whether you believe - or investors believe - that lower prices are here to stay.

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There are there are few signs of environmental damage from the Cosco Busan oil spill in San Francisco Bay from only one year ago.  A complete recovery is estimated to take several years.

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