U.S. EPA Extends Comment Period for Proposed WOTUS Rule

On October 14, 2014, U.S. EPA and the Army Corps of Engineers extended the comment period for the proposed rule defining “Waters of the United States” under the Clean Water Act. The comment period was extended from October 20, 2014 to November 14, 2014.

U.S. EPA Amends All Appropriate Inquiries Rule

On October 6, 2014, U.S. EPA published a final rule amending the All Appropriate Inquiries Rule, 40 CFR Part 312, to remove the reference to ASTM International’s E1527-05 standard for Phase I Environmental Site Assessments. The E1527-05 standard was replaced with the E1527-13 standard by ASTM in November 2013 and, on December 30, 2013, U.S. EPA approved the use of the E1527-13 standard to comply with the All Appropriate Inquiries Rule.

Today’s blog entry is an update to our January 13, 2014 post regarding U.S. EPA’s final rule approving the use of ASTM’s E1527-13 standard for Phase I Assessments. Effective October 6, 2015, any party using a Phase I Environmental Site Assessment to satisfy the All Appropriate Inquiries requirement to secure liability relief under CERCLA’s landowner liability protections must ensure the Phase I complies with the ASTM E1527-13 standard.

Pavillion, WY Update

We've commented previously on the contamination claims related to Pavillion, WY.  The Casper Star-Tribune has an update for us:  "Natural gas wells in the Pavillion Gas Field were properly drilled and maintained, but more study is needed to prove if energy operations contaminated drinking water in the region, according to a draft report released by Wyoming regulators Wednesday. *** Those findings were among the conclusions of a preliminary study released by the Wyoming Oil and Gas Conservation Commission. The report is one of three investigations Wyoming is conducting into polluted drinking water near the town of Pavillion. The state is also reviewing disposal pits and testing water quality in the area. All three investigations will be combined in a final report."

Ohio Residents Allege Unlawful Transfer of Discharge Permit Authority for CAFOs

On August 4, 2014, two Ohio residents filed a complaint in federal court alleging that Ohio EPA violated the Clean Water Act in 2001 when the agency transferred its discharge permitting authority for concentrated animal feeding operations (CAFOs) to the Ohio Department of Agriculture without notifying U.S. EPA until 2006.  The lawsuit seeks a court order directing that only Ohio EPA can issue discharge permits for CAFOs and, thus, prohibiting the Department of Agriculture from issuing any discharge permits, and declaring that U.S. EPA violated the CWA by not suspending Ohio EPA's permitting authority after learning of the improper transfer.

OH: Prison Time for Illegal Dumping

The Columbus Dispatch is reporting that an Ohio brine hauler will be serving time in prison for dumping brine down a stormwater drain.  "The owner of a northeastern Ohio business that collected and stored toxic fluids from oil- and gas-drilling operations was sentenced yesterday in Cleveland to 28 months in federal prison and fined $25,000."

ESA Determination Overturned by Alaskan Court

SitNews is reporting on a recent decision out of the U.S. District Court for the District of Alaska finding that a National Marine Fisheries Service rule declaring a population of bearded seals to be "threatened" under the Endangered Species Act (ESA) was inherently arbitrary and capricious.  "Judge Beistline emphasized that 'the lack of any articulated discernable, quantified threat of extinction within the reasonably foreseeable future' was a critical failing of NMFS’s listing decision. The court also held the agency’s listing decision was procedurally defective in failing to comply with a statutory duty to adequately consider and respond to comments submitted by the State of Alaska."

Nice.  The President and CEO of the Alaska Oil and Gas Association noted, "This decision is a win for science."

Sue and Settle

If you haven't heard of this yet, now is the time.  From Forbes:  "The U.S. House of Representatives should be applauded this week for passage of HR 4315, the 21st Century Endangered Species Transparency Act. As its title indicates, the bill is designed to require public transparency and real-time information related to proposed listings under the Endangered Species Act (ESA). The reforms proposed in the bill would become the first changes to this archaic and much-abused federal statute in 26 long years, during which time radical groups like the Center for Biological Diversity and WildEarth Guardians have made the law into a cottage industry for lawsuit abuse. (We detailed this so-called 'sue and settle' racket here last year.)."

PA: Review of DEP Oversight of Unconventional Gas Drilling

According to this news release, the Pennsylvania Auditor General’s Office recently issued a report finding "no instances where DEP [i.e., the Pennsylvania Department of Environmental Protection] failed to protect public health, safety or the environment with respect to unconventional gas drilling activities."  But there were some hiccups ... not necessarily agreed with by the DEP:  E.g., "Findings that DEP disagrees with include that 'DEP did not routinely and consistently issue orders requiring oil and gas operators to restore or replace adversely impacted water supplies as required by law.' In these instances, orders were not necessary. The operators in those instances had already remediated the affected water supplies without an order."

Interesting.  Read it all.

Colorado Court Overturns Local Ban on Hydraulic Fracturing

The Denver Post is reporting on a recent court decision striking down a ban on hydraulic fracturing approved by the voters of the city of Longmont, Colorado.  "Judge D.D. Mallard issued the summary judgment Thursday. In the ruling, she said Longmont's charter amendment clearly conflicted with the state's regulations and its interest in the efficient development of oil and gas deposits. *** 'While the court appreciates the Longmont citizens' sincerely held beliefs about risks to their health and safety, the court does not find this is sufficient to completely devalue the state's interest,' Mallard wrote."  Congratulations to the Colorado Oil and Gas Association for its win!

Harmonizing Gas Emissions

The Proceedings of the National Academy of Sciences recently published a peer-reviewed study on the life-cycle of methane emissions due to shale gas development.  "Recent technological advances in the recovery of unconventional natural gas, particularly shale gas, have served to dramatically increase domestic production and reserve estimates for the United States and internationally. *** Through a meta-analytical procedure we call harmonization, we develop robust, analytically consistent, and updated comparisons of estimates of life cycle GHG emissions for electricity produced from shale gas, conventionally produced natural gas, and coal. On a per unit electrical output basis, harmonization reveals that median estimates of GHG emissions from shale gas-generated electricity are similar to those for conventional natural gas, with both approximately half that of the central tendency of coal."  (Emphasis is ours.)

That won't stop the detractors ... but it will annoy them.

U.S. EPA Extends Comments Period for Proposed Chemical Disclosure Rule

On July 14, 2014, U.S. EPA extended the comment period for a proposed rule regarding the disclosure of chemicals used in the hydraulic fracturing process. The 30-day extension moves the deadline to submit comments from August 18, 2014, to September 18, 2014.

EPA Releases Final Risk Assessment on TCE

On June 25, 2014, U.S. EPA released a final risk assessment for trichloroethylene (TCE). The TCE risk assessment, developed as part of EPA’s Toxic Substances Control Act Work Plan, identified health risks from TCE exposures to consumers using spray aerosol degreasers and spray fixatives, and the health risks to workers when using TCE as a degreaser and as a stain remover in dry cleaning.

Additional information on the TCE risk assessment can be found on EPA’s website.

USFWS Announces 6-Month Extension for Northern Long-Eared Bat Endangerment Determination

On June 24, 2014, the U.S. Fish and Wildlife Service announced a six-month extension for making a final determination on whether to list the Northern Long-Eared Bat as endangered.  A decision will now be made before April 2015.  The Service has also re-opened the comment period and is seeking input regarding the status of the Northern Long-Eared Bat.  This extension should soon be published in the Federal Register.

Click here for more information on the six-month extension and re-opening of the comment period.

Supreme Court Limits U.S. EPA's Regulation of Carbon Emissions

On June 23, 2014, the U.S. Supreme Court issued a decision limiting U.S. EPA’s regulation of carbon emissions from stationary sources under the Greenhouse Gas (GHG) Tailoring Rule (Tailoring 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 (click here for more on the Tailoring Rule). While the Court upheld EPA’s authority to require sources, otherwise subject to PSD and Title V permitting due to their emissions of criteria pollutants, to comply with best available control technology for GHGs, the Court ruled that the Clean Air Act does not authorize EPA to require a source to obtain a PSD or title V permit solely on the basis of its potential GHG emissions.

New Way to Reduce Emissions?

The Farmington Daily Times has an interesting article on a way to address - possibly - emissions from compressor stations.  "Emissions from natural gas production could be reduced to near zero if a local man's patented idea proves successful. *** His idea involves installing piping hardware on the engine exhaust that feeds into the gas line headed to the refinery plant. At the plant, the emissions particulates would be filtered out, thus producing near zero emissions for gas compressors."  Hmmm ...

Texas RRC Finds No Evidence That E&P Operations Caused Methane Contamination (Again)

We reported previously on methane contamination claims being investigated (and ultimately rejected) by the Texas Railroad Commission (Texas RRC) (e.g., see here).  Last week, the Texas RRC again found those claims to be unsupported by the evidence with respect to additional wells.  See here.  From the report:  "The occurrence of natural gas in the complainants' water wells may be attributed to processes unrelated to recent Barnett Shale gas production.  Specifically, from natural migration of gas from the shallow Strawn Formation, exacerbated by water well construction practices whereby some water wells have penetrated 'red beds' in the transition interval between the aquifer and the Strawn Formation."

Read the whole thing.

D.C. Circuit Strikes Down U.S. EPA Aggregation Memo

On May 30, 2014, the U.S. Court of Appeals for the D.C. Circuit struck down U.S. EPA’s attempt to limit the jurisdictional scope of the Sixth Circuit’s 2012 decision in Summit Petroleum Corp. v. EPA. In Summit, the Court held that “EPA’s determination that the physical requirement of adjacency [for purposes of aggregating multiple emission sources as a single “major source”] can be established through mere functional relatedness is unreasonable and contrary to the plain meaning of the term ‘adjacent’” (click here to read more about the decision). Two months after the decision, the Director of EPA’s Office of Air Quality issued a memo to each of the Regional Air Directors explaining that the Summit decision would only apply to states within the Sixth Circuit – Kentucky, Michigan, Ohio and Tennessee.

An association of resource extraction and manufacturing companies challenged the memo, claiming that the memo’s directive would leave facilities outside of the Sixth Circuit at a competitive disadvantage. The D.C. Circuit agreed, and held that EPA could not limit Summit’s application.

Ohio EPA to Develop Rules for Beneficial Use of Material From Horizontal Wells

On May 13, 2014, Ohio EPA published notice of an Early Stakeholder Outreach (ESO) regarding the beneficial use of material from a horizontal well that has come into contact with refined oil-based substances that are not TENORM. Ohio EPA, pursuant to R.C. 3734.125, is considering either (1) developing a rule requiring an Ohio EPA authorization for such beneficial use (case specific to the material, beneficial use, and location of the use), or (2) including the beneficial use of such material in Ohio EPA’s broader beneficial use regulatory program.

The ESO is the first stage of the rulemaking process and gives stakeholders an opportunity to provide input prior to Ohio EPA’s development of interested party draft rules. Comments must be submitted on or before June 16, 2014.

PA: DEP Regulatory Report

NorthCentralPA.com is reporting on a recent report issued by the Pennsylvania Department of Environmental Protection:  "This week, the Pa. Department of Environmental Protection (DEP) released its first-ever 2013 Oil and Gas Annual Report, highlighting both the incredible opportunity that safe, tightly-regulated shale development presents for the entire Commonwealth as well as the strong and effective enforcements policies in place to ensure that we continue to protect our environment."

For a copy of the report itself, see here.

Supreme Court Upholds EPA's Transport Rule

On April 29, 2014, the U.S. Supreme Court held that U.S. EPA did not violate the Clean Air Act (CAA) when it issued the Cross State Air Pollution Rule (Transport Rule), overturning the D.C. Circuit Court’s ruling in 2012. The Transport Rule, enacted pursuant to the “Good Neighbor” provision of the CAA, requires reduced emissions of SO2 and NOx from power plants in 28 states that EPA determined were “significantly contributing” to a downwind state’s nonattainment of the National Ambient Air Quality Standards (NAAQS).

Interpreting the Good Neighbor provision, the Supreme Court held that (1) after EPA disapproves a state implementation plan, “the Act empowers the Agency to promulgate a federal implementation plan ‘at any time’” and (2) while “EPA cannot require a state to reduce its output of pollution by more than necessary to achieve attainment in every downwind State . . . [o]nly reductions unnecessary to downwind attainment anywhere fall outside the Agency’s statutory authority.” Accordingly, the Court approved EPA’s cost-effective methodology for allocating emissions reductions among upwind states.

States are now faced with the daunting task of determining how to allocate emissions allowances to sources within the state in accordance with the EPA-imposed FIPs.

PA Water Monitoring Report

The Pennsylvania Department of Conservation and Natural Resources released its first Shale Gas Monitoring Report this week.  Among the findings (quoted from the Department's press release):  "Water is the resource that most people cite when expressing their concerns about shale gas production. Although incidents have occurred, the monitoring data shows that water quality has not been affected due to this activity."  (Emphasis is ours.)  For a copy of the report, see here.

IPCC Report Supports Hydraulic Fracturing

The Intergovernmental Panel on Climate Change's (IPCC) latest assessment finds that U.S. greenhouse gas emissions have dropped in large part to the use of hydraulic fracturing to produce natural gas:  "A key development since AR4 is the rapid deployment of hydraulic‐fracturing and horizontal‐drilling technologies, which has increased and diversified the gas supply and allowed for a more extensive switching of power and heat production from coal to gas (IEA, 2012b); this is an important reason for a reduction of GHG emissions in the United States."  (Emphasis is ours.)

If you listen, you can almost hear the gnashing of teeth by our environmentalist friends ...

U.S. EPA Issues Methane White Papers

U.S. EPA issued five white papers earlier this week (on April 15th - tax day) on potentially significant sources of emissions in the oil and gas sector.  From the summary report on completion operations:  "Completion is the process of preparing a well for production. Completions of hydraulically fractured or refractured oil wells can be a source of methane and VOC emissions. Hydraulically fractured oil wells also may produce natural gas along with the oil; this gas is often vented during production. This paper resents data and mitigation techniques for emissions from completions and associated gas from ongoing production at hydraulically fractured oil wells, which are not covered under the 2012 NSPS."

U.S. EPA Proposes Rule Defining "Waters of the United States"

On March 25, 2014, U.S. EPA and the Army Corps of Engineers jointly released a proposed rule redefining "Waters of the United States."  Editorializing a bit, a cursory review of the proposed rule indicates little has been done to clarify whether and how certain streams and wetlands are protected under the Clean Water Act.  We will follow-up with a more detailed summary of the rule and potential implications once we have had an opportunity to thoroughly review the rule.

Comments on the proposed rule must be submitted on or before July 21, 2014.  Additional information related to the rulemaking can be found on EPA's website

[Update:  The Congressional Research Service has issued a report on the proposed rule that you may find of interest.]

PA: DEP Air Emission Study

NBC10 (Philadelphia) is reporting on a study that finds that oil and gas operations in Pennsylvania are contributing to reduced air pollution in the state:  "A new state report says Pennsylvania's natural gas industry remained a relatively small contributor of air pollution in 2012 from industrial facilities, despite including more compressor stations than 2011. *** The Department of Environmental Protection released the data Thursday. *** Overall, the amount of pollution from industrial facilities dropped in 2012, and the department said that was at least in part because of increased natural gas use."  (Emphasis is ours.)

Ohio EPA Issues Revised Oil & Gas Well Site General Permits

On April 4, 2014, Ohio EPA issued revised General Permits (GPs) for sources of air emissions at oil and gas well sites.  Ohio EPA revised the existing GP 12 (for well sites) and GP 5.1 (for unpaved roadways) to incorporate new rule requirements, including U.S. EPA's New Source Performance Standards for the oil and gas industry (40 CFR Part 60, Subpart OOOO).  The revised GPs, which replace the existing GP 12 and GP 5.1, and supporting documentation can be found on Ohio EPA's website.

WH Calls for New Methane Emissions Rules

The WSJ has an article on the Administration's plans to address methane emissions as part of its strategy to address global warming:  "The White House move is part of President Barack Obama's broader plan announced last June to tackle climate change. The administration's methane strategy reflects a reluctance to commit right now to new federal regulations targeting the natural-gas industry, which could be politically unpopular. New rules could also contradict the administration's rhetoric and actions supporting natural gas in the past few years, including the Energy Department's conditional approval earlier this week of the seventh U.S. project to export gas.  *** Reaction from oil and natural-gas companies was muted, while environmentalists cheered the news."

For more, see here (Climate Action Plan:  Strategy to Reduce Methane Emissions).

Ohio EPA Completes Soil Background Report for Lucas County

Ohio EPA released a final report summarizing the agency's investigation and statistical evaluations that were performed to determine the representative background concentrations of certain metals in surface soils in Lucas County.  This information may be used as a reference for properties in Lucas County and the Toledo area that are being assessed and remediated under the Ohio Voluntary Action Program.

The report can be found by following this link, and then clicking on Lucas County.

TSCA: ANPR Submitted to OMB

U.S. EPA has submitted to the Office of Management and Budget (OMB) an Advance Notice of Proposed Rulemaking (ANPRM) to initiate a rulemaking under the Toxic Substances Control Act (TSCA) designed to obtain data on chemical substances and mixtures used in hydraulic fracturing.  See here.  From U.S. EPA's website:

Although EPA has granted the petitioners' request to initiate a rulemaking proceeding under TSCA sections 8(a) and 8(d), the Agency is not committing to a specific rulemaking outcome. EPA intends to first develop an Advance Notice of Proposed Rulemaking (ANPRM) and initiate a stakeholder process to provide input on the design and scope of the TSCA reporting requirements that would be included in a proposed rule. EPA anticipates that States, industry, public interest groups, and members of the public will be participants in the process. The stakeholder process will bring stakeholders together to discuss the information needs and help EPA to ensure any reporting burdens and costs are minimized, ensuring information already available is considered in order to avoid duplication of efforts. The dialogue will also assist EPA in determining how information that is claimed Confidential Business Information could be aggregated and disclosed to maximize transparency and public understanding.

EPA Proposes Revisions to GHG Reporting Rule for Oil and Gas Industry

On March 10, 2014, U.S. EPA published proposed revisions and confidentiality determinations for the petroleum and natural gas source category of the Greenhouse Gas (GHG) Reporting Rule, 40 CFR Part 98, Subpart W. The amendments to Subpart W include the following:

·         Changes to provide consistency throughout Subpart W, including changing the units of measurement for GHG reporting from metric tons of CO2e of each GHG reported to metric tons of GHG reported, and amending the definition of the Onshore Production Source Category to include all equipment on or associated with a single well pad;

·         Revisions to the calculation methods and reporting requirements for certain sources, including, pneumatic devices, dehydrators, gas well completions, storage tanks, and gas venting and flaring; and

·         Adjustments to Subpart W provisions allowing the use of best available monitoring methods to provide facilities with time to adjust to the new requirements of the rule.


EPA also proposed several confidentiality determinations for the new and substantially revised data elements contained in the proposed amendments to the rule. If finalized, the amendments would become effective on January 1, 2015. 


Comments on the proposed revisions must be submitted to U.S. EPA on or before April 24, 2014.

OH: TENORM Guidance Documents

The Ohio Department of Health recently published two guidance documents on TENORM sampling methods and analytical requirements (see here).  Regarding sampling, for example, "ODH strongly recommends that samples of waste containing TENORM be collected for analysis in accordance with any of the protocols and guidance presented in: USEPA 530-D-02-002, August 2002, RCRA Waste Sampling Draft Technical Guidance Planning, Implementation, and Assessment http://www.epa.gov/osw/hazard/testmethods/sw846/pdfs/rwsdtg.pdf.  In this USEPA document, you’ll find recommended procedures for sampling solid waste. The regulated and regulatory communities can use this guidance to develop sampling plans to determine if a solid waste contains concentrations of TENORM that meet the exemption criteria listed in paragraph (A) of rule 3701:1-43-07 of the Ohio Administrative Code."

New Water Fact Graphic

Energy In Depth has published a new graphic on water use in hydraulic fracturing activities.  Below is only a part of the graphic - you may want to get a copy in its entirety:

PA: New Methane Study

The Patriot-News is reporting on a new study published in the February 2014 Bulletin of the American Association of Petroleum Geologists:  "Natural gas, the study shows, is often already in the water before any drilling begins. *** The study *** is based on more than 2,300 gas and water samples collected from 234 gas wells and 67 private groundwater-supply wells, the largest data set of any such study thus far."

Moreover:  "Krancer [PA Environmental Protection Secretary] said, 'Many have hastily concluded that the presence of thermogenic methane in shallow groundwater in the vicinity of drilling activities means that the methane contamination is caused by the drilling operations. This study shows that this is not necessarily so.'"  (Emphasis is ours.)

Pretty significant findings.  You can get a copy of the study here.

U.S. EPA Guidance on Diesel Use and HF Activities

U.S. EPA has released revised guidance materials on the use of diesel fuel in hydraulic fracturing activities.  "EPA is issuing the guidance alongside an interpretive memorandum, which clarifies that class II UIC requirements apply to hydraulic fracturing activities using diesel fuels, and defines the statutory term diesel fuel by reference to five chemical abstract services registry numbers. The guidance outlines for EPA permit writers, where EPA is the permitting authority, existing class II requirements for diesel fuels used for hydraulic fracturing wells, and technical recommendations for permitting those wells consistently with these requirements."  (EPA News Release)

For a copy of the guidance document itself, see here.

OH: Gas-Fired Power Plant Proposal

The Dayton Daily News is reporting on a proposed natural-fired power plant proposal for Butler County, Ohio:  "NTE Energy plans to develop, own and operate what it’s calling 'one of the most efficient natural gas-fired power plants in the United States.' The facility, to be called the Middletown Energy Center and located on Cincinnati Dayton Road, near Oxford State Road, will generate enough power to supply approximately 400,000 homes, the company said."

Construction is anticipated to begin in 2015.  Interesting.

"Popular anti-fracking study discredited by Colorado health department"

That's the title to a recent article in the Washington Examiner:  "The researchers with the Colorado School of Public Health cited 'minuscule' statistical differences and ignored other factors in producing a report on the negative side effects of fracking, according to a statement released by the Colorado Department of Public Health and Environment on Thursday."

For a copy of the statement, see here (Energy In Depth, Mountain States).

EPA Data - No Spike in Methane Emissions

Responding to recent claims by environmentalists, the Heartland Institute notes:  "Natural gas fracking is not causing a spike in U.S. methane emissions, the latest U.S. Environmental Protection Agency data show. The data debunk assertions by global warming alarmists that recent declines in U.S. carbon dioxide emissions—caused largely by the increasing use of low-carbon natural gas power—are being offset by rising methane emissions from natural gas fracking."  More?  "According to EPA’s “Inventory of Greenhouse Gas Emissions and Sinks: 1990-2011,” U.S. methane emissions are in long-term decline – with minor year-to-year variations – with 2011 emissions (the most recent year for which EPA has data) down 8 percent from 1990 levels. Methane emissions are down 5 percent since 2007, when the fracking boom began."

For a copy of the inventory data, including updates, see here.

U.S. EPA Final Rule Approves Use of New ASTM Standard for Phase I Environmental Assessments

On December 30, 2013, U.S. EPA published a final rule approving the use of ASTM International’s recently updated standard for conducting Phase I Environmental Site Assessments (ASTM E1527-13). The final rule amends the “All Appropriate Inquiries Rule” at 40 CFR Part 312, by establishing that parties seeking liability relief under CERCLA’s landowner liability protections can satisfy the criteria for all appropriate inquiries by following the procedures in the ASTM E1527-13 standard. 

ASTM International’s E1527-13 standard made several revisions to its previous E1527-05 standard for conducting Phase I Environmental Site Assessments including, but not limited to, updated definitions and clarification on the requirement to assess vapor releases as a possible type of release at the subject property. The final rule notes that, in the near future, EPA intends to publish a proposed rulemaking to remove the reference to the previous ASTM 1527-05 standard from the All Appropriate Inquiries Rule.      

New Air Study

The Daily Climate is reporting on a new study that finds that "[n]atural gas plants emit a tiny fraction of the smog-causing gases and slightly more than half of the greenhouse gases emitted by their coal-burning counterparts."  More?  "'Since more and more of our electricity is coming from these cleaner power plants, emissions from the power sector are lower by 20, 30, even 40 percent for some gases since 1997,' said Joost de Gouw, lead author of the study and an atmospheric scientist with the National Oceanic and Atmospheric Administration's Cooperative Institute for Research in Environmental Sciences at the University of Colorado, Boulder."

Interesting ...

Ohio EPA Director Resigns

It is being widely reported that Ohio Environmental Protection Agency Director, Scott Nally, resigned today.  Craig Butler was appointed as interim Director.  Mr. Butler was pulled from his position as the Governor's senior policy advisor on, inter alia, environmental issues.  Mr. Butler previously worked at Ohio EPA as Director of the Agency's Central District Office and Southeast District Office.

Continue Reading...

HF Uses Less Water Than Coal Power Plants

A recent article at Environmental Leader starts off:  "Transitioning from coal to natural gas in Texas for electricity generation is saving water and making the state less vulnerable to drought, according to a University of Texas at Austin study published this month in the journal Environmental Research Letters."  More?  "The researchers estimate that water saved by shifting a power plant from coal to natural gas is 25 to 50 times as great as the amount of water used in fracking to extract the natural gas. Natural gas also enhances drought resilience by providing so-called peaking plants to complement increasing wind generation, which doesn’t consume water."

For a copy of the University of Texas study, see here.

Hazardous Waste and EPCRA Chemical Inventory Reports Due

With 2013 coming to a close, this blog entry is to remind owners/operators of hazardous waste facilities and facilities that are subject to EPCRA hazardous chemical inventory reporting, including producers of oil and natural gas, of their reporting obligations for the 2013 calendar year. Specifically, the 2013 Annual Hazardous Waste Report (and Supplementary Ground Water Monitoring Report, if applicable) and the EPCRA Tier II Chemical Inventory Report are both due by March 1, 2014. 

·         Ohio EPA has posted instructions for completing the 2013 Annual Hazardous Waste Report.

·         Instructions for completing the Tier II Inventory Report and U.S. EPA’s Tier II Submit Software, which allows owners/operators to complete the Tier II Report electronically, are available on U.S. EPA’s website.    

USGS: New Methane Study

The U.S. Geological Survey recently issued a new study finding high background levels of methane in New York.  "A new USGS study found that 15 percent of groundwater samples from 66 household wells across south-central New York contained methane at levels high enough to warrant monitoring or mitigation. Methane was more common and had higher concentrations in wells located in valleys rather than wells located in uplands. Valley wells that tap confined bedrock were the most likely to contain high levels of methane. *** The wells were tested in June and July of 2012 to provide baseline data on methane concentrations in groundwater. The study area includes about 2000 square miles and is considered favorable for Marcellus Shale gas resources. None of the water wells tested was located within a mile of existing natural gas wells."

Hmmm ...

Federal Rulemakings

We thought you might be interested in this link to the Agency Rule List - Fall 2013.  Among the rules of note:  Definition of "Waters of the United States" Under the Clean Water Act (2040-AF30); Oil and Natural Gas Sector: Reconsideration of Additional Provisions of New Source Performance Standards (2060-AS01); and Hydraulic Fracturing Chemicals; Chemical Information Reporting under TSCA section 8(a) and Health and Safety Data Reporting under TSCA section 8(d) (2070-AJ93).

Ohio ERAC Issues Wetlands/Stream Impact Permit Decision

The Ohio Environmental Appeal Review Commission (ERAC) recently decided a case that affects Clean Water Act (CWA) section 404/401 wetlands and stream impact permits and water quality (WQ) certifications/permits in Ohio. The decision includes favorable rulings for regulated entities that need to obtain section 404/401 permits and WQ certifications (e.g., Ohio EPA cannot apply un-adopted stream designations/classifications to establish the existing use and conditions).

The case is Oxford Mining Company v. Nally, ERAC Case No. 12-256581 (September 18, 2013). ERAC ordered the WQ certification be returned to Ohio EPA for further consideration, and both parties have appealed the decision to the 10th District Court of Appeals. It will take some time for the appeallate court to consider this case, and for a modified WQ certification to be issued by Ohio EPA. The ERAC decision will affect Ohio EPA wetland and stream impact permits throughout Ohio, including permits and WQ certifications for proposed oil and gas wells and related sites when Clean Water Act (CWA) section 404/401 WQ permits/certifications are required.

Continue Reading...

WY: Another Study Finds No Link to Groundwater Contamination

The Star-Tribune is reporting on another recent study finding no link between E&P operations and groundwater contamination claims:  "Natural gas operations are not linked to groundwater contamination in the Pinedale area, according to a new Bureau of Land Management report. *** The report, released Wednesday, said low levels of hydrocarbons detected in groundwater wells in what's known as the Pinedale Anticline Production Area were largely attributable to natural processes. It found there was no widespread evidence linking those chemicals to spills, leaks or other byproducts of natural gas development. And it concluded no further mitigation efforts were needed to address water pollution in the area."

Coast Guard Proposes Policy for Transporting Shale Gas Extraction Wastewater via Barge

On October 30, 2013, the U.S. Coast Guard announced the availability of a proposed policy letter that would allow bulk transportation of shale gas extraction wastewater (SGEWW) via barge. To ensure that SGEWW is transported in compliance with the Coast Guard’s regulations governing ships and tank vessels carrying bulk liquid, liquefied gas, or compressed gas hazardous materials (46 CFR Part 153), the policy letter specifies:

1.      The conditions under which a barge owner may request and be granted a Certificate of Inspection (COI) endorsement or letter allowing the barge to transport SGEWW in bulk as Conditionally Permitted SGEWW;

2.      The information the Coast Guard may require a barge owner to provide to obtain the COI endorsement; and

3.      Additional requirements that may be imposed on barge owners carrying SGEWW on board the barge, including analyses for hazardous materials and radioisotopes to ensure the radioactivity concentration limit is below certain thresholds, venting requirements, and tank survey requirements prior to carrying a change in cargo after carrying SGEWW.


The Coast Guard is seeking comments on the requirements under consideration. If approved, this could be an economical alternative to rail and trucking for transporting shale gas extraction waste fluids to storage/reprocessing centers and UIC wells in Ohio, and as far away as Texas and Louisiana.  


Comments must be submitted to the Coast Guard by November 29, 2013.

OH: ODNR Data Confirms HF Safety

The Akron Beacon Journal has an article reaffirming the safety record of hydraulic fracturing in Ohio:  "[The Ohio] Division of Oil and Gas Resources Management has investigated 183 water-well complaints that Ohio landowners filed from 2010 through mid-October. Only six water supplies were impacted by drilling over the nearly four-year period, state spokesman Mark Bruce said. *** All of those problems stemmed from old, vertical-only wells, not today’s big horizontal wells that rely on fracking to free natural gas, oil and other liquids from rocks deep underground, he said."

Read the whole thing.

New Emission Study

The Denver iJournal is reporting on a new study intended to quantify methane emissions from natural gas gathering and processing facilities:  "This month, a team led by Anthony Marchese, mechanical engineering professor and new director of the CSU Engines and Energy Conversion Laboratory, will begin collecting data from potential methane sources associated with natural gas midstream facilities, between the wellhead and long-distance transmission pipelines."

Hmmmm ....

PA Water Supplies

The Times-Tribune has an interesting article noting that Pennsylvania has more than enough water to meet oil and gas development needs:  "'We have plenty of water,' assured Andrew Dehoff, executive director of Susquehanna River Basin Commission, an independent multi-state agency that regulates withdrawals of water in the watershed. Mr. Dehoff and others discussed the natural gas industry's water use in Pennsylvania at the Shale Insight 2013 conference, which concluded in Philadelphia on Thursday."

PA: Peer Review Commends State Program

The Gant Daily is reporting on a recenty review of the Department of Environmental Protection's (DEP's) regulatory program.  Among the program's strengths:  "Advancing its hydraulic fracturing program and requiring that well operators conducting well casing and cementing maintain control at all times, and prevent migration of gas or other fluids into sources of fresh groundwater."

For a copy of the review itself, see here.

Barnett Shale Air Study

The Star-Telegram is reporting on a recent air study  published in the journal Science of the Total Environment:  "A review of air quality in the Barnett Shale using data from the Texas Commission on Environmental Quality finds that emissions related to natural gas production are below levels that would pose health concerns. *** The study looked at 4.6 million measurements of targeted chemical compounds captured by seven monitors at six sites in the area from 2000 to 2011. Those monitors, part of a TCEQ network, either automatically sample the air once an hour daily or collect one air sample for 24 hours every sixth day."

New Methane Emissions Study

The Fort Worth Star Telegram has a good article on a new study out of the University of Texas finding that methane emissions from oil and gas development is not nearly as bad as environmentalists have claimed:  "So-called 'green' completion equipment is very effective at capturing methane emissions on new natural gas wells, but other devices at well sites allow more gas to escape than previously estimated, a new study shows. *** Overall, the emissions from natural gas well sites were in line with current estimates by the U.S. Environmental Protection Agency, and are much lower than earlier estimates by drilling critics."

For a copy of the study, see here (Proceedings of the National Academy of Sciences).

For other reports, see here (Capital Public Radio News) ("Some scientists have argued that so much gas leaks out during production that it is actually worse for the environment than coal. But a new nationwide study shows that methane leaks from natural gas production aren't as bad as some feared."), and here (Environmental Defense Fund) ("First, methane emissions during ‘well completion’ – the process of getting the well ready to produce gas after it is drilled and fractured - are lower than current EPA estimates. This is because the majority of wells tested were using “green completion” technology or flares which were shown to be highly effective in reducing methane emissions at this point in the production process.").

Shouldn't this be celebrated as good news?

Ohio EPA Releases Draft Guidance Documents on the Impact of HB 59

House Bill (HB) 59, which becomes effective on September 29, 2013, amended several sections of Ohio law governing the disposal of waste substances generated from oil and gas production operations. On September 16, 2013, Ohio EPA released three draft Guidance documents to facilitate the implementation of the new oil and gas-related waste management requirements:

  1. Impact of HB 59 on Solid Waste Landfills and Transfer Facilities
  2. Municipal Solid Waste Landfill Daily Log of Operations
  3. Fact Sheet: Drill Cuttings from Oil and Gas Exploration in the Marcellus and Utica Shale Regions of Ohio

Specifically, the guidance documents clarify the definition and management of drilling muds and drill cuttings and address the disposal of wastes containing TENORM at solid waste landfills.

It is our understanding that the draft guidance documents will be subject to Early Stakeholder Outreach public comment, which will commence at the end of September.

New SPCC Guidance Document

U.S. EPA has released a revised version of its SPCC Guidance for Regional Inspectors.  It is "intended to assist regional inspectors in reviewing a facility's implementation of the Spill Prevention, Control, and Countermeasure (SPCC) rule at 40 CFR part 112 *** [and is made]available to owners and operators of facilities that may be subject to the requirements of the SPCC rule, and the general public on how EPA intends the SPCC rule to be implemented. The document is designed to provide a consistent national policy on several SPCC-related issues."

For a copy, including explanatory materials, see here.

EPA to Withdraw Recent "All Appropriate Inquiries" Direct Final Rule

This blog entry provides an important update to our August 19, 2013 entry reporting on U.S. EPA’s Direct Final Rule to amend the All Appropriate Inquiries Rule. 

After receiving adverse comment, EPA has reported that it will withdraw its Direct Final Rule that would have approved the use of ASTM International’s new E1527-13 “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process” to satisfy the All Appropriate Inquiries Rule. At least two comments have been submitted criticizing the rule for endorsing the use of two different standards – ASTM E1527-13 and the existing version E1527-05 – to satisfy the standard of “all appropriate inquiry.” Accordingly, U.S. EPA has indicated it will publish in the Federal Register a formal rescission of the Direct Final Rule.

WV: Air Study Finds No Drilling Impact

The News and Sentinel is reporting on a recent air study in West Virginia concluding that the state's air quality will not be impacted by natural gas drilling operations in the state:  "The report was created by the West Virginia Department of Environmental Protection's Office of Oil and Gas. It looked at the impact of fracking, a process in which water and sand are injected underground to access deposits of shale oil and gas. *** The report relied on U.S. Environmental Protection Agency data at a Monongalia County elementary school. *** The report says there were no indications of a public health emergency or threat based on air quality monitoring data."


[Update:  The same appears to be true for a recent study regarding a Pennsylvania compressor station.  See this article from the Lewistown Sentinel ("The Department of Environmental Protection says tests near a natural gas compressor plant in eastern Pennsylvania don't show excessive levels of nitrogen oxide pollution.").]

U.S EPA Amends Standards and Practices for All Appropriate Inquiries

On August 15, 2013, U.S. EPA took direct final action to amend the All Appropriate Inquiries Rule, 40 CFR Part 312, by adding reference to ASTM International’s E1527-13 “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process.” ASTM’s E1527-13 Phase I standard is an updated version of the E1527-05 standard issued in 2005. 

Parties who seek protection from CERCLA liability when purchasing real property must satisfy the all appropriate inquiries requirements of CERCLA.   These requirements can be met by following the rules and procedures set forth in (1) 40 CFR Part 312, (2) ASTM E1527-05, (3) ASTM E2247-08, or (4) pursuant to EPA’s direct final action, the ASTM E1527-13 standard. This amendment is effective on November 13, 2013, unless EPA receives adverse comments by September 16, 2013.

US EPA Updates Oil and Gas Standards for Storage Tanks

On August 5, 2013, U.S. EPA issued updates to its 2012 New Source Performance Standards (NSPS) for the oil and gas industry, amending the performance standards for emissions of volatile organic compounds (VOCs) from storage tanks. Updates to the 2012 NSPS include clarification of the types of tanks that are considered “affected facilities,” alternative emission limits for tanks where emissions have declined, and phased-in compliance deadlines and VOC performance standards for tanks subject to the rule, among others.  The revised rule establishes the following compliance deadlines:

·         April 15, 2014 for tanks that come online after April 12, 2013, or within 60 days after startup, whichever is later.

·         April 15, 2015 for tanks constructed between August 23, 2011 and April 12, 2013.

Ohio Court Upholds Air Toxics Rule, Regulation of Additional Toxics Possible

On June 27, 2013, the Ohio Court of Appeals for the Tenth Appellate District issued a decision regarding the lawfulness of Ohio EPA’s adoption of the Air Toxics Rule (OAC 3745-114-01), pursuant to Ohio Revised Code Chapter 3704.03(F)(3)(c). See Sierra Club v. Koncelik, 2013-Ohio-2739. While the adoption of the Air Toxics Rule was, in large part, upheld, the rule may need to be modified to include additional chemical compounds on the list of regulated air toxics.  

Under the Air Toxics Rule, only air contaminants that pose a threat of “adverse human health effects” are required to be on the list of regulated air toxics. Ohio EPA, in its evaluation of the chemical compounds to be regulated as air toxics under the final Air Toxics Rule, excluded compounds categorized as irritants, acute exposure events, non-inhalation routes of exposure, consumer products, and compounds not currently used in Ohio. However, the court determined that Ohio EPA’s categorical exclusion of compounds (1) demonstrated toxic through non-inhalation routes of exposure and (2) no longer used or produced in Ohio is inconsistent with express statutory language, and recommended that Ohio EPA “examine each individual compound in these two categories and determine if the compound is required to be placed on the list.”

OH: To U.S. EPA - Stop Your "Sue and Settle" Tactic

According to the Akron Beacon Journal, Ohio joined 11 other states in warning U.S. EPA not to employ the tactic of "sue and settle" to regulate hydraulic fracturing:  "The letter, signed by 12 energy-producing states, was sent to the EPA after several northeastern states threatened to sue the agency for not taking over regulatory responsibility of oil and gas production. The Clean Air Act provides states, not the federal government, with primary regulation responsibility. *** The letter states, 'It is abundantly clear that EPA should not succumb to the pressure intended by the Northeastern States. … Any discussions to regulate methane emissions from oil and gas facilities would obviously have a significant impact on the economy and citizens of those states. … EPA must, at a minimum, include Oklahoma and other states with similar interests in any negotiations.'”

The tactic is real ...

OH: Youngstown CNG Station

The Youngstown Vindicator is reporting on the construction of the area's first CNG filling station:  "Compressed natural gas, which is stored onboard a vehicle in cylinders at a pressure of between 3,000 and 3,600 pounds per square inch, has about the same fuel economy as a conventional gasoline vehicle, but it sells for far less. According to the U.S. Department of Energy, the U.S. national average for CNG on Tuesday was $2.10 per gasoline gallon equivalent — $1.51 less than a gallon of regular-grade gasoline."


PA: Methane's Everywhere

The National Ground Water Association has a press release discussing a new article in Groundwater finding:  "Testing of 1,701 water wells in northeastern Pennsylvania shows that methane is ubiquitous in groundwater, with higher concentrations observed in valleys vs. upland areas and in association with calcium/sodium/bicarbonate, and sodium chloride-rich waters."  (Emphasis is ours.)  The press release continues:  "The article goes on to say that 'on a regional scale, methane concentrations are best correlated to topographic and hydrogeologic features, rather than shale-gas extraction.'"

HF: New Study Concludes Little Risk Posed

Energy In Depth has a post on a new study done assessing the risks of hydraulic fracturing:  "A new, comprehensive report from Gradient examines two potential exposure pathways for hydraulic fracturing fluids to impact human health: upward migration from the shale formation itself, and surface incidents such as spills or other releases. Even by taking a conservative approach (which by design overestimates risk) the report concludes that hydraulic fracturing fluids 'are not expected to pose an adverse risk to human health' and that, in the event of a spill, natural processes would dilute fluids to 'below levels of human health concerns.'"

For a copy of the study, see here.

Ohio EPA Issues Compliance Advisory Notice for Emergency Electrical Generators

On May 15, 2013, Ohio EPA issued a Compliance Advisory Notice (Notice) regarding the operation of emergency electrical generators, permitted under Ohio EPA’s permit-by-rule (PBR), for peak shaving or other non-emergency demand response situations. The Notice was issued in light of the Director’s April 30, 2013 Final Findings and Orders clarifying how Ohio EPA would implement U.S. EPA’s revised National Emission Standards for Hazardous Air Pollutants for Reciprocating Internal Combustion Engines (RICE NESHAP).  Pursuant to the Director’s Final Findings and Orders, Ohio EPA will not consider peak shaving operations to be a violation of the Emergency Generator PBR, from April 30, 2013 through May 3, 2014, if the owners or operators comply with the RICE NESHAP's operating restrictions and reporting requirements.

PA: Hydraulic Fracturing Did Not Cause Town's Methane Problems

Businessweek is reporting on recent findings by the Pennsylvania Department of Environmental Protection regarding alleged methane contamination:  "Methane in the water wells of a Pennsylvania town visited by Yoko Ono in her campaign against hydraulic fracturing wasn’t caused by nearby drilling for natural gas, the state environmental regulator said. *** In the northeastern town of Franklin Forks, samples from three private water wells are comparable in their chemical makeup to the natural spring at a nearby park where methane had been detected long before fracking began in the area, according to the Pennsylvania Department of Environmental Protection."  (Emphasis is ours.)

Read the whole thing ...

EPA: Methane Leaks Less Than Previously Thought

The Examiner has a notable report on an EPA study revising downward the methane leaked during natural gas production operations:  "'The scope of the EPA's revision was vast. In a mid-April report on greenhouse emissions, the agency now says that tighter pollution controls instituted by the industry resulted in an average annual decrease of 41.6 million metric tons of methane emissions from 1990 through 2010, or more than 850 million metric tons overall. That's about a 20 percent reduction from previous estimates. The agency converts the methane emissions into their equivalent in carbon dioxide, following standard scientific practice. *** The EPA revisions came even though natural gas production has grown by nearly 40 percent since 1990.'"  (Emphasis is ours.)

For more, see here (EPA:  "National Greenhouse Gas Emissions Data").

Ohio EPA Proposes Revisions to Best Available Technology Program

On May 1, 2013, Ohio EPA published notice of proposed revisions to its Best Available Technology (BAT) program. Under Ohio’s air pollution control law, owners or operators applying for air pollution permits for new or modified sources are required to provide their recommendations for BAT to minimize air emissions from the source. Ohio EPA’s proposed revisions would impact two of the four case-by-case options for BAT determinations – the Work Practices option and the Source Design Characteristics or Design Efficiency of Applicable Air Contaminant Control Devices option – and would be implemented through modifications to OAC 3745-31-05 and Ohio EPA’s BAT Requirements for Permit Applications Filed On or After August 3, 2009 guidance document.

Comments are due by May 31, 2013.

CERCLA Liability - Current Owner's Inaction Bars Liability Defense

On April 4, 2013, the U.S. Court of Appeals for the Fourth Circuit held that a bona fide prospective purchaser’s (BFPP) inaction with respect to certain conditions on a contaminated property barred application of the BFPP defense to CERCLA liability. (PCS Nitrogen Inc. v. Ashley II of Charleston LLC). After incurring response costs, Ashley II of Charleston, Inc. (Ashley), the current owner of a contaminated site, brought a CERCLA cost recovery action against PCS Nitrogen, Inc. (PCS), a successor corporation of a former owner of the property. PCS counterclaimed and Ashley asserted it was exempt from liability as a BFPP.

With respect to CERCLA liability, BFPP status exempts a party that that would otherwise be liable simply because it is an “owner or operator” of a facility. To qualify for the exemption, a current owner must satisfy a number of criteria, including the requirement that the owner “exercises appropriate care with respect to hazardous substances found at the facility by taking reasonable steps to (i) stop any continuing release; (ii) prevent any threatened future release; and (iii) prevent or limit human, environmental, or natural resource exposure to any previously released hazardous substance.” Ashley argued that the “appropriate care” standard should be less stringent when considering BFPP status. The court disagreed, explaining that the “appropriate care” standard is at least equivalent to CERCLA’s “due care” inquiry which asks whether a party “took all precautions with respect to the particular waste that a similarly situated reasonable and prudent person would have taken.” With that, the court held that Ashley’s inactions with respect to sumps and a debris pile at the facility show that it failed to exercise “appropriate care.”

Texas Petitions U.S. Supreme Court for Review of GHG Tailoring Rule

On April 19, 2013, the state of Texas filed a Petition asking the U.S. Supreme Court to review the greenhouse gas (GHG) tailoring rule. The tailoring rule requires new sources that emit more than 100,000 tons per year of carbon dioxide-equivalent and modified sources that increase their emissions by more than 75,000 tons per year to satisfy prevention of significant deterioration (PSD) and Title V permitting requirements. Under the Clean Air Act, however, the emissions thresholds for the PSD and Title V permit programs are 250 tons per year and 100 tons per year, respectively.  The Petition asserts that U.S. EPA does not have the authority to regulate GHGs under the CAA and that the tailoring rule arbitrarily increases the permitting thresholds for GHG emissions.

Alabama, Florida, Georgia, Indiana, Louisiana, Michigan, Nebraska, North Dakota, Oklahoma, South Carolina and South Dakota are also listed as petitioners. 

Industry Group Challenges U.S. EPA's Aggregation Memorandum

The National Environmental Development Association’s Clean Air Project (NEDA/CAP) recently filed suit against U.S. EPA claiming the Agency’s memorandum regarding the applicability of the Sixth Circuit’s decision in Summit Petroleum Corp. v. U.S. EPA, violates the Clean Air Act (CAA). In Summit,the United States Court of Appeals for the Sixth Circuit held that U.S. EPA cannot satisfy the “adjacency” prong of its aggregation analysis through a mere finding of “functional relatedness.” Aggregation is a regulatory scheme by which separate sources are treated as a single source when calculating total emissions to determine whether a source is a “major source” and, thus, subject to additional permitting requirements. (See our coverage of another aggregation issue here).

U.S. EPA’s memorandum notified the Agency’s 10 Regional Air Division Directors that the impetus of the Summit decision would only be applicable in permitting decisions in states under the jurisdiction of the Sixth Circuit – Michigan, Ohio, Kentucky, and Tennessee. In its lawsuit, NEDA/CAP, a trade association representing energy producers and manufacturers, asserts U.S. EPA’s memorandum creates uncertainty for facility operators and an unfair regional split. The group claims that this split violates CAA § 301(a)(2) which requires U.S. EPA to “assure fair and uniform application by all EPA Regional Offices of the criteria, procedures, and policies applied by the various regions.”

PA Radiation Study

According to a recent press release, the Pennsylvania Department of Environmental Protection has "released detailed sampling and quality assurance plans for its ongoing comprehensive radiation study of oil and gas development. The agency will sample and analyze radioactivity levels of flowback waters, treatment solids, drill cuttings and drilling equipment, along with the transportation, storage and disposal of drilling wastes."  Importantly:  "Based on current data, regulations and industry practices, there is no indication that the public or workers in the oil and gas industry face health risks from exposure to radiation from these materials. The study is aimed at ensuring that public health and the environment continue to be protected."  (Emphasis is ours.)

Sixth Circuit Holds U.S. EPA Can Question Pre-Construction Emission Projections

On March 28, 2013, the U.S. Court of Appeals for the Sixth Circuit held that U.S.EPA has the authority to challenge pre-construction emissions projections and may bring an enforcement action against a company operating without a construction permit.  Under the Clean Air Act, a proposed project that would result in a “significant emissions increase” constitutes a "major modification" and requires a pre-construction permit.  In March 2010, DTE Energy Company (“DTE”) began construction on the replacement of two boiler components at its Monroe Power Plant in Monroe, Michigan after determining that the projected emissions increase was below the major modification threshold.  U.S. EPA subsequently reviewed DTE’s calculations and determined that the project constituted a major modification.  In June 2010, U.S. EPA issued a Notice of Violation and sued DTE seeking injunctive relief.

In U.S. v. DTE Energy, the Michigan District Court denied U.S. EPA’s request for an injunction explaining that U.S. EPA cannot bring an enforcement action without post-project emissions data demonstrating that the pre-construction emissions projections were incorrect.  The Sixth Circuit reversed the District Court’s ruling and held that “while the regulations allow operators to undertake projects without having EPA second-guess their projections, EPA is not categorically prevented from challenging even blatant violations of its regulations until long after modifications are made.”  It should be noted, however, that the Court recognized that the Clean Air Act does not authorize U.S. EPA to impose a prior-approval permitting scheme.  The Court’s narrow interpretation of the Clean Air Act appears to limit U.S. EPA’s authority to bring an enforcement action to instances where projected emissions were not calculated in accordance with the requirements contained in the regulations.

Petition Asserts Ohio's Oil and Gas Law Violates Federal Law

On March 6, 2013, an Ohio citizen submitted a petition (“Petition”) to U.S. EPA requesting the agency publish a formal determination that Ohio’s oil and gas law violates the Emergency Planning and Community Right-to-Know Act (“EPCRA”).  The Petition asserts that the oil and gas industry exemption from complying with EPCRA is unlawful because the information required to be reported under the state oil and gas law fails to satisfy the emergency planning information required to be reported annually under EPCRA.  The Petition also requests that U.S. EPA take enforcement action against oil and gas companies that continue to operate in violation of EPCRA.

Proposed Legislation to Eliminate Aggregation Exemption

On March 14, 2013, Representative Jared Polis (D-CO) introduced a bill (H.R. 1154) to amend the Clean Air Act (CAA) to eliminate the exemption for aggregation of hazardous air pollutants from oil and gas sources. CAA § 112(n)(4) currently prohibits the aggregation of emissions from "any oil or gas exploration or production well (with its associated equipment) and emissions from any pipeline compressor or pump station." In addition to eliminating this exemption, H.R. 1154 would require U.S. EPA to issue a final rule adding hydrogen sulfide to the list of hazardous air pollutants under CAA § 112(b) and a separate rule to include oil and gas wells as major sources and area sources of hydrogen sulfide under CAA § 112(c).

For more, see this Oil and Gas Alert.

PA: New Water Study

The Proceedings of the National Academy of Sciences has published a recent study on the impacts of shale development on surface water quality in Pennsylvania.  Of note:  "The density of shale gas wells upstream in a monitor’s watershed has a statistically insignificant effect on Cl- concentration downstream ***."  What does that mean?  From a related Council on Foreign Relations article:  "The team’s conclusions are fairly straightforward. They find enhanced chlorine concentrations downstream of waste water treatment facilities but not downstream of drilling sites. Chlorine is a good marker of contamination from well flowback. What the RFF analysis suggests is that leaks or spills aren’t statistically detectable, at least at the watershed level, but that impacts of poorly processed wastewater are."

Interesting ...

Senate Energy and Natural Resources Committee Testimony

The Politico has an interesting report on recent testimony before the Senate Energy and Natural Resources Committee on natural gas exports.  "The goal, Senate Energy and Natural Resources Chairman Ron Wyden (D-Ore.) said, is to allow the U.S. to reap the benefits of natural gas development and exports while protecting consumers and reducing the trade deficit."  For more, including an archived webcast of the testimony, see here.

PA: Industry Emissions Down

The Pennsylvania Department of Environmental Protection has issued a news release reporting that air emissions from unconventional shale development operations are only a small part of the total air emissions in the state, and they are on the decline:  "'The data show that emissions from drilling represent a small fraction of air pollution in the state, which has gone down considerably since shale gas development began in earnest several years ago,' DEP Secretary Mike Krancer said."

There will be a web-based presentation this Thursday at 2 pm regarding the findings.

OH: General Air Permit Modifications Available for Comment

Ohio EPA has made draft model general permits for Oil and Gas Well Site Production Operations and Unpaved Roadways and Parking Areas available for public comment:  "The Ohio EPA, Division of Air Pollution Control (DAPC) is soliciting comments from interested parties concerning proposed changes to Model General Permits and a new Permit-By-Rule to address operations at oil and gas well sites. These changes are designed to (1) incorporate changes associated with the recently issued New Source Performance Standards (NSPS), Subpart OOOO, for Crude Oil and Natural Gas Production, Transmission, and Distribution, (2) split the single oil and gas well site operations general permit into two separate general permits, (3) revise the unpaved roadway general permit to eliminate unnecessary monitoring, record keeping, and reporting, and (4) to propose a new Permit-by-rule for flowback operations."

Comments are due March 22, 2013.

PA: DEP Finalizes Revisions to General Air Permit

The Pennsylvania Department of Environmental Protection has announced that it has finalized certain revisions to a general air permit for natural-gas-fired engines and equipment at compressor stations:  "DEP also announced it will accept public comment on a proposed plan approval and operating permit exemption for air emission sources at well drilling sites. Well sites would only be eligible for the exemption for the air quality plan approval process if the wells will meet emission control and monitoring criteria that are stricter than federal air quality rules for controlling wellhead emissions. The plan approval authorizes construction of facilities that emit certain types and amounts of pollutants."

For more, click on the link above.

What the Regulators Are Saying About Hydraulic Fracturing

We thought you might be interested in this collection of some of the statements regulators have made about hydraulic fracturing from National Review Online.  A sample:  "'We have never had any cases of groundwater contamination from hydraulic fracturing,' Elizabeth Ames Jones said in 2011. The then-chairman of the Texas Railroad Commission, which supervises natural gas, added: 'It is geologically impossible for fracturing fluid to reach an aquifer a thousand feet above.'"

Read it all and enjoy.

NPDES Discharge Permit Not Needed for Discharges of Pollutants from Unimproved to Improved Portions of the Same Waterway

On January 8, 2013, the U.S. Supreme Court held that a discharge of polluted water from an improved (concrete lined) portion of a waterway into an unimproved (natural condition) portion of the same waterway does not require an NPDES permit.  Los Angeles County Flood Control District v. NRDC.  The Supreme Court followed its prior ruling in South Fla. Water Management Dist. v. Miccosukee Tribe, 541 U.S. 95 (2004) wherein it held the transfer of polluted water between two parts of the same water body does not constitute a discharge of pollutants. The United States agreed with this decision via an Amicus Curiae brief.

Environmental Groups File Ozone Petition with U.S. EPA

On December 19, 2012, a number of environmental groups filed a petition with U.S. EPA seeking, among other things:  1.  A "broad deployment of ozone air quality monitors in oil and natural gas development areas;" and 2. that U.S. EPA provide communities with "tools to help reduce smog-forming pollution from oil and gas development by issuing control technology guidelines (“CTGs”) for oil and gas equipment."  You can find a copy of the petition here.

U.S. EPA Releases Update on HF Study

U.S. EPA has released an update on its hydraulic fracturing study outlining the work currently underway.  You can find a copy of the press release here, and more on the study itself here (including more information on two webinars related to the update scheduled for early January).

Ohio Supreme Court Rules on Civil Penalties for Air Permit Violations

The Ohio Supreme Court recently decided a case involving the appropriate method for determining civil penalties for air permit violations.  State ex rel. Ohio Atty. Gen. v. Shelly Holding Co..  The central issue was whether the violation was considered a continuing violation.  The Court held a violation was continuing from the date of a failed stack test until evidence is presented to prove the violation was not continuous.

First Oil and Gas Producer GHG Enforcement Case

A California oil and gas producer recently settled USEPA’s first enforcement case for greenhouse gas (“GHG”) permitting violations. According to USEPA, the company failed to obtain a prevention of significant deterioration (“PSD”) permit before it installed three steam generators at its oil field in 2011.  Here's a link to the Consent Order.

MIT: Emissions Study

A new MIT study finds that fugitive emissions from natural gas shale production has been overstated:  "A new study by MIT researchers shows the amount of methane emissions caused by shale gas production has been largely exaggerated. *** 'While increased efforts need to be made to reduce emissions from the gas industry overall, the production of shale gas has not significantly increased total emissions from the sector,' says Francis O'Sullivan, a researcher at the MIT Energy Initiative and the lead author of the study released this week in Environmental Research Letters."  (Emphasis is ours.)

For a copy of the press release (and a link to the study itself), see here.

Green Completions

The Philadelphia Inquirer has an article on green completions that you may be interested in:  "The towering flares that turn night into day in the Marcellus Shale gaslands are becoming an increasingly rare sight.  Natural gas producers are turning to new techniques to capture the gas emitted during the well-completion process. In the past, a well's initial production was typically vented or burned off to allow impurities to clear before the well was tied into a pipeline."

PA: New Injection Wells Issued Draft Permits

State Impact is reporting that U.S. EPA has issued two draft permits for wastewater injection wells in Pennsylvania:  "The Environmental Protection Agency has issued draft permits for fracking wastewater disposal wells in both Elk and Clearfield counties. The state has only five permitted and operating underground injection disposal wells that take wastewater from oil and gas production. The EPA has issued final permits for two injection wells in Warren County, but they’re under appeal by residents. With the Marcellus Shale drilling boom, the gas industry needs more options to dispose of their waste water. But plans for the wells in Warren, and Clearfield counties have met substantial opposition from residents."


PA DEP Under Attack

The NYT has an article sensationalizing claims that the Pennsylvania Department of Environmental Protection has been hiding information regarding water contamination:  "Pennsylvania officials reported incomplete test results that omitted data on some toxic metals that were found in drinking water taken from a private well near a natural gas drilling site, according to legal documents released this week."  (The article is entitled, Pennsylvania Report Left Out Data on Poisons in Water Near Gas Site.)

For a more balanced approach, however, see this article from the local Pittsburgh Tribune-Review:  "White and the law firm Smith Butz complain the DEP made judgments and sent reports to landowners refuting claims of well water contamination based on just a few of the chemicals for which it tested. *** That’s common, several water experts said. Lab testing can be extensive and expensive, and anyone who requests a lab test for a specific type of contamination likely will focus on key, telltale chemicals and disregard the rest. *** 'They could have 100 different (contaminants) from an analysis, but they’re going to report what’s related to what they’re trying to investigate,' said David Yoxtheimer, a hydrogeologist at Penn State’s Marcellus Center for Outreach and Research. 'That’s pretty much standard industry practice.'"

TRI Attack

Several environmental groups have asked U.S. EPA to require toxic release inventory reporting of the oil and gas industry.  For more information on the program, see here.  For a copy of the petition to U.S. EPA, see here.

US EPA Wrong Again

America's Natural Gas Alliance (ANGA) and the American Petroleum Institute (API) recently released a study done by URS Corporation showing that methane emissions from natural gas production are at least 53 percent below U.S. EPA's estimates.  "The survey is an updated version of data first released in June. It shows that venting of methane into the atmosphere during liquids unloading is 93 percent lower than Environmental Protection Agency (EPA) estimates and that methane emissions from well re-fracturing are 72 percent lower."  For a copy of the press release, and study, see here.

NSPS Rules Challenged

We've reported previously on U.S. EPA’s final air emission rules for E&P facilities, implementing New Source Performance Standards (“NSPS”) for volatile organic compounds (“VOC”) and sulfur dioxide (“SO2”), and National Emissions Standards for Hazardous Air Pollutants (“NESHAP”).  Nine separate petitions were filed recently with the DC Circuit Court of Appeals challenging those rules for the oil and natural gas sector (consolidated for review in American Petroleum Institute v. Environmental Protection Agency, Case No. 12-1405).

We will keep you posted.

HF: Recent Reports on Hydraulic Fracturing

We thought you'd be interested in several recent reports on the topic of hydraulic fracturing:

  • GAO (U.S. Government Accountability Office):  Recently issued two reports touching on the topic.  This one addresses the environmental risks associated with hydraulic fracturing (and E&P operations in general), finding (in part) that there was insufficient data to connect groundwater pollution claims to hydraulic fracturing operations.  This one looks at how E&P operations are regulated.
  • LAT:  The LA Times is reporting on a recent study conducted as part of a settlement with Culver City and several environmental and community groups.  From the article:  "A long-awaited study released Wednesday says the controversial oil extraction method known as hydraulic fracturing, or fracking, would not harm the environment if used at the Inglewood Oil Field in the Baldwin Hills area. *** The yearlong study included several issues raised by residents living around the field, such as the potential risks for groundwater contamination, air pollution and increased seismic activity. *** For months, water wells on the 1,200-acre field were monitored. Data from ground and air monitors were collected and analyzed, but no effects were recorded before or after the technique was used, the study says."


OEPA Guidance to Public Water Systems Re: Furnishing Water to Oil & Gas Companies

Yesterday, OEPA issued a new Fact Sheet as guidance to Public Water Systems (PWS) before they enter into contracts to provide/sell raw or finished water to oil and gas companies. The fact sheet reminds PWSs they have an OEPA approved capacity for their public systems and need to protect that capacity for their public customers, and not exceed their approved capacity. In addition, there are guidelines for when a back flow device is needed for physical connections to a PWS to protect the water source from contamination. If a PWS wants to install a new bulk loading station, they probably will have to submit plans to OEPA for approval as such a project might be considered a substantial change to the PWS trigging the requirement to obtain plan approval under OAC Chapter 3745-91. OEPA also requests the PWS notify the OEPA district office of water sales to oil and gas companies where the water will be used for hydraulic fracturing.

WY: U.S. EPA Extends Pavillion Public Comment Period

U.S. EPA has extended the public comment period for a draft research report on the Pavillion, WY groundwater contamination investigation:  "The public comment period began December 14, 2011, and ends January 15, 2013. Comments should be submitted to the docket or received in writing by EPA by January 15, 2013."

EPA's summary:  "The draft research report was prepared by the National Risk Management Research Laboratory, within the EPA Office of Research and Development (ORD), and EPA Region 8. This draft research report is not final as described in EPA's Information Quality Guidelines, and does not represent and should not be construed to represent Agency policy or views. Eastern Research Group, Inc., an EPA contractor for external peer review, will convene an independent panel of experts for peer review of this draft research report. Public comments submitted during
the public comment period will be made available to the peer review panel for consideration in their review. An external peer review meeting will take place following the public comment period."

NYT Biased on Hydraulic Fracturing?

That's the thesis of this article in Forbes:  "The questionable reporting kicked off in spring 2011 when the Times hyped the research of once obscure Cornell University professor Robert Howarth whose anti-shale gas activism and out-of-the-mainstream findings have been sharply contested by independent researchers, including at environmental groups such as the Natural Resources Defense Fund and the Environmental Defense Council; a research team at MIT; the National Energy Technology Lab, and independent energy commentators such as Michael Levi at the Council on Foreign Relations."

Read it all and enjoy.

New Well Completion Notice Requirements - Effective 10/15/2012

Effective October 15, 2012, owners or operators of hydraulically fractured natural gas wells must notify USEPA prior to commencing well completion operations. The notice is required no later than two days prior to commencement of completion activities, and it must provide: the anticipated date of the well completion operation; contact information for the owner or operator; the API well number; the latitude and longitude coordinates for the well; and the planned date for the beginning of flowback. This information can be submitted by email to the appropriate USEPA region.  See HERE for details.  (40 CFR 5424(a)(2).)

USGS Pavillion, WY Reports Released

We've reported previously on U.S. EPA's efforts to connect groundwater contamination to E&P operations (see here, e.g.).  U.S. Geological Survey (USGS) has released two reports on related groundwater sampling.  From the USGS press release:  "The U.S. Geological Survey is making available two reports related to groundwater-quality, quality-control, and well yield data for two monitoring wells near Pavillion, Wyo. The first USGS report describes the sampling and analysis plan that was developed to collect groundwater data. A second report provides the raw data and information from the groundwater-quality samples."

You can also get copies of the reports at the link.

OH: New Water BMP

The Ohio Division of Oil and Gas Resources Management has published an updated Best Management Practices for Pre-Drilling Water Sampling containing new testing laboratory information.  Check it out.

Hydraulic Fracturing Approved for Wayne Forest Development

The Canton Repository is reporting that the U.S. Forest Service has approved the use of hydraulic fracturing in the Wayne National forest.  "The Forest Service released its report after a study of the Wayne National Forest’s land and resource management plan drafted in 2006. The forest’s supervisor, Anne Carey, said in a statement that she determined the plan could adequately address any damage and risks to the forest from the natural-gas extraction method known as hydraulic fracturing, or fracking. She also said there is no need for a new environmental impact study."

For a copy of the report, see here.

Update: U.S. EPA Frac Study

We've reported previously on U.S. EPA's research plan regarding hydraulic fracturing (see here, e.g.).  The EPA Science Advisory Board (SAB) Staff Office recently requested public nominations for technical experts to form an SAB ad hoc panel to provide advice on that research project.  "EPA ORD is currently developing a ``Progress Report: Potential Impacts of Hydraulic Fracturing on Drinking Water Resources,'' expected to be released in December 2012, which will describe the status of its research on the potential environmental and human health implications of hydraulic fracturing. EPA is seeking SAB advice on the status of the research described in its Progress Report. EPA plans to use such advice for the development of a report of results, estimated to be released in 2014, which will also be reviewed by the SAB. The SAB Staff Office is establishing an ad hoc advisory panel to provide such advice and review under the auspices of the SAB."

Court Decision on Cross-State Air Pollution Rule

Yesterday, the D.C. Circuit Court of Appeals struck down USEPA’s Cross-State Air Pollution Rule (“CSAPR”) in EME Homer City Generation L.P. v. EPA . The Court found that the CSAPR exceeded USEPA’s statutory authority by requiring that upwind States reduce emissions by more than their contributions to a downwind State’s nonattainment and by establishing the new standards through Federal Implementation Plans rather than allowing the States to implement them through their State Implementation Plans. A copy of the case can be found here.


CO2 Emissions At 20-Year Low

The Politico is reporting that carbon dioxide emissions are at a 20-year low:  "In a surprising turnaround, the amount of carbon dioxide being released into the atmosphere in the U.S. has fallen dramatically to its lowest level in 20 years, and government officials say the biggest reason is that cheap and plentiful natural gas has led many power plant operators to switch from dirtier-burning coal."

For related information from the Energy Information Administration (EIA), see here.

Final NSPS Rule

After publication in today’s Federal Register, U.S. EPA’s final air emission rules became effective for oil and gas production and natural gas transmission and storage facilities. The rules implement New Source Performance Standards (“NSPS”) for volatile organic compounds (“VOC”) and sulfur dioxide (“SO2”), and National Emissions Standards for Hazardous Air Pollutants (“NESHAP”). The new NSPS require that fractured and refractured gas wells use reduced emission completions (“RECs”) or completion combustion devices such as flaring until January 1, 2015. After January 1, 2015, owner/operators must use RECs and a completion combustion device together.

Continue Reading...

Another Fail: Smithsonian Article on Earthquakes

Smithsonian.com has an article misleadingly entitled, "‘Fracking’ for Natural Gas Is Linked With Earthquakes" - suggesting to the reader that the article will show how earthquakes have been tied to the process of hydraulic fracturing.  Not (as my daughter would say).  Rather, the study discussed in the article looks at the connection between recent, low level earthquakes and waste injection wells.  From the article itself:  "'You can’t prove that any one earthquake was caused by an injection well,' says Cliff Frohlich, the University of Texas geologist who conducted the study, 'but it’s obvious that wells are enhancing the probability that earthquakes will occur.'"  (Emphasis is ours.)

Don't tell the prosecutors in Bones ...

Air Act Aggregation Win for Summit Petroleum

Yesterday, the U.S. Court of Appeals for the Sixth Circuit issued its decision in the Summit Petroleum case rejecting USEPA’s attempt to aggregate production and processing facilities as one “stationary source” for Title V permitting. This decision overturns USEPA’s long-standing requirement that permitting authorities must look at the “functional relationship” between two or more separate facilities to determine whether they are “adjacent” and subject to aggregation for Title V or PSD permitting.  (See Summit Petroleum Corp. v. U.S. EPA, Nos. 09-4348; 10-4572 (Aug. 7, 2012)).

The Summit case involved USEPA’s aggregation of Summit’s sweetening plant with nearly one hundred sour gas production wells that were located in the surrounding area and connected to the sweetening plant by pipelines. By aggregating these multiple sources, USEPA determined that Summit’s combined facilities were a “major source” for Title V permitting. It is the definition of a “major source” that gives rise to the issue that was presented to the court in Summit.

Continue Reading...

Dimock: U.S. EPA Ok's Water

NBC4i is reporting on recent findings by U.S. EPA that the groundwater in Dimock, PA is safe to drink:  "The U.S. Environmental Protection Agency said Wednesday that it has completed tests on drinking water in the northeastern Pennsylvania village of Dimock and has determined it is safe to drink, despite the claims of some residents who say it has been polluted by gas drilling."  Read the whole thing.

You can find a copy of U.S. EPA's statement, including links to the study results, here.


Very interesting:  "In the HBO movie 'Gasland,' New York City filmmaker Josh Fox tried to scare people into thinking that natural gas development and hydraulic fracturing are new, unregulated and dangerous. It made one Pennsylvania mom living atop the Marcellus Shale wonder what she was getting into. She asked environmentalists, academics and everyday people what they think. Nobody got paid to talk — all they were asked was to tell the truth."

To see the movie, go here.

HF: Critics Using Bad Science

The WSJ is reporting that opponents of hydraulic fracturing may be misleading the public:  "In the debate over natural gas drilling, the companies are often the ones accused of twisting the facts. But scientists say opponents sometimes mislead the public, too."  (Emphasis is ours.)  More?  "One of the clearest examples of a misleading claim comes from north Texas, where gas drilling began in the Barnett Shale about 10 years ago. *** Opponents of fracking say breast cancer rates have spiked exactly where intensive drilling is taking place — and nowhere else in the state. The claim is used in a letter that was sent to New York's Gov. Andrew Cuomo by environmental groups and by Josh Fox, the Oscar-nominated director of "Gasland," a film that criticizes the industry. *** But researchers haven't seen a spike in breast cancer rates in the area, said Simon Craddock Lee, a professor of medical anthropology at the University of Texas Southwestern Medical Center in Dallas."

API: U.S. EPA Frac Study Needs Work

The American Petroleum Institute (API) and America's Natural Gas Alliance (ANGA) recently issued a report from Battelle Memorial Institute pointing out the weaknesses in U.S. EPA's proposed study of hydraulic fracturing operations.  For example:  "Congress requested a study 'relying on best available science and independent sources of information.' It appears questionable, because of its genesis and design, whether the proposed case study element of the study program will be able meet this expectation and provide the scientifically defensible data and information required to support the fundamental research questions regarding the possibility of impacts of hydraulic fracturing on drinking water resources."

For a copy of the study, see here.

PA UIC Permitting Not Going Well

U.S. EPA's Environmental Appeals Board (EAB) recently found that the agency had failed to conduct a sufficient review of two wastewater disposal well permit applications.  From the syllabus of In Re:  Bear Lake Properties, LLC (UIC Appeal No. 11-03) (Jun. 28, 2012):  "The Region had a responsibility to ensure that accurate data as to drinking water wells within the area of review of the proposed injection wells were identified and considered. The record does not support a finding that the Region satisfied its responsibility in this regard. In particular, the Region failed to clearly articulate its regulatory obligations or compile a record sufficient to assure the public that the Region relied on accurate and appropriate data in satisfying its obligations. The permit is therefore remanded."  (Emphasis is ours.)

For a copy of the decision, see here.

Vorys Attorneys Settle $11M CERCLA Case for GE Against US

Vorys attorneys were the subject of a LAW360 story entitled "GE to Get $11M From US In CERCLA Settlement." The settlement also include an agreement from the U.S. Government to pay 67% of future response costs. More information about the settlement can be found here. Click this link for a copy of the decision and order and click this link for a copy of the Consent Decree.

USEPA's GHG Regulations Upheld

Yesterday, the D.C. Circuit Court of Appeals upheld USEPA’s green house gas (GHG) regulations and its endangerment finding that supported the GHG regulations.  The Court dismissed industry arguments that challenged the science supporting the regulations.  As a result, many industries, including some oil and gas midstream facilities, will be required to comply with GHG permitting requirements in order to locate and construct new or modified facilities that emit significant amounts of GHG.  As part of the permitting process, each facility will need to identify and install the Best Available Control Technology (BACT) for its emission units to limit GHG emissions.  The opinion can be found here.

Report: Little Concern for Quakes and Hydraulic Fracturing

According to this article from MSNBC, a report from the National Research Council has come out finding little reason for concern that earthquakes and hydraulic fracturing are causally connected:  "The controversial practice of hydraulic fracturing to extract natural gas does not pose a high risk for triggering earthquakes large enough to feel."  Also interesting:  "The man-made quakes that [U.S. Geological Survey seismologist William] Ellsworth has been seeing are almost all related to wastewater injection, he said. Ellsworth said he agreed with the research council that 'hydraulic fracturing does not seem to pose much risk for earthquake activity.'"  (Emphasis is ours.)

Can You Trust U.S. EPA's GHG Numbers?

Not according to a study prepared by the American Petroleum Institute (API) and the America's Natural Gas Alliance (ANGA).  From the related press release:  "API’s Director of Regulatory and Scientific Affairs Howard Feldman told reporters this morning that a URS study prepared for API and the American Natural Gas Association showed that methane emissions from natural gas production were half what had been previously estimated by EPA. He called the new data the most robust the nation now has on this important subject."  For a copy of the study, see here.

Ohio S.B. 294 Signed Into Law - Ohio Wetland Laws Amended

Yesterday, Governor Kasich signed Ohio S.B. 294 into law.  It will become effective within 90 days.  Under the bill, amendments were made to Ohio's Wetland laws (ORC 6111.02 through .035).  The amendments (1) provide a preferred order for isolated wetland mitigation projects, (2) allows the establishment of an isolated wetland in-lieu fee program, (3) allows the ODNR to establish wetland mitigation banks, and (4) creates a "surface water improvement fund" that can be used by the OEPA to complete water quality protection and restoration projects.  Find the S.B. 294 text here.

House Bill 473 Signed - Bringing Ohio Into Compliance with the Great Lakes Compact

Yesterday, Governor Kasich signed HB 473.  The law, intended to comply with the 2005 Great Lakes Compact, imposes new permit requirements for water withdraws permit limits and is designed to protect excessive water use from the Lake Erie Basin.  Water withdraw limits vary from 100,000 gallons to 2.5 million gallons, depending on the source of the water.  A Columbus Dispatch article on the signing can be found here, and a copy of the bill can be found here.

House Bill 473 Signed - Bringing Ohio Into Compliance with the Great Lakes Compact

Yesterday, Governor Kasich signed HB 473.  The law, intended to comply with the 2005 Great Lakes Compact, imposes new permit requirements for water withdraws permit limits and is designed to protect excessive water use from the Lake Erie Basin.  Water withdraw limits vary from 100,000 gallons to 2.5 million gallons, depending on the source of the water.  A Columbus Dispatch article on the signing can be found here, and a copy of the bill can be found here.

New Clean Air Act Citizen Suit Ruling

On May 25, 2012, the Sixth Circuit Court of Appeals issued a decision in Sierra Club, et al. v. Korleski in which the court determined that the Clean Air Act does not authorize citizen suits against the Ohio EPA for alleged violations of emission standards or limitations. The case involved the Sierra Club’s challenge of Ohio EPA’s rules that exempt small sources (those that emit less than ten tons of pollutants per year) from Ohio’s best available technology (BAT) requirement. The Court ruled that the Ohio EPA had not “violated’ an emission standard or limitation and that the only recourse would be a suit against the USEPA for failing to enforce the SIP requirements. A copy of the decision is available here.

Ohio: New Legislation

The Ohio General Assembly has been busy this past week.  Two pieces of legislation you might be interested in:

  • Am. H.B. 473 - Designed to implement the Great Lakes Compact, HB 473 establishes permitting requirements for withdrawals and consumptive uses in the Lake Erie watershed that meet certain thresholds (e.g., 2.5 million gallons per day from a recognized navigation channel averaged over a 90-day period).  While there are some exemptions, our industry is not generally exempt from this program.  You can find a copy here.  (Note - It includes amendments to R.C. 1501.30 et seq., regarding other diversions and consumptive uses that you should review as well.)
  • Sub. S. B. 315 - SB 315 contains significant changes to Ohio's oil and gas conservation program.  Among other things, it contains substantial disclosure requirements relating to hydraulic fracturing fluids, identification requirements regarding water sourcing and volumes used in production operations, and certain changes to Ohio's underground injection control program (i.e., Ohio's UIC brine disposal program).  You can find a copy here.


University Study Finds PA Regulation Working

The University of Buffalo's Shale Resources and Society Institute has released a new study finding that Pennsylvania's regulatory oversight of E&P operations has been effective:  "'This study presents a compelling case that state oversight of oil and gas regulation has been effective,' says lead author Considine. 'While prior research has anecdotally reviewed state regulations, now we have comprehensive data that demonstrates, without ambiguity, that state regulation coupled with improvements in industry practices result in a low risk of an environmental event occurring in shale development, and the risks continue to diminish year after year.'"

The study is entitled, “Environmental Impacts During Shale Gas Drilling: Causes, Impacts and Remedies," and can be found here.

PA: Another Test Dispels Landowner Groundwater Contamination Claims

The Chicago Tribune has an article reporting on recent test results showing that groundwater contamination claims are linked to shallow, naturally occurring methane and not the producer's operations:  "The analysis, a form of chemical fingerprinting, studies stable isotopes in the methane for signs of its origin.The procedure has become a frequent tool for regulators and companies seeking to distinguish between deep gas harvested by drillers, shallow gas caused by the breakdown of organic material and gas trapped in middle rock layers closer to the surface than the mile-deep Marcellus. *** Susan Oliver, a spokeswoman for WPX, said in an email that 'the characteristics of the methane in the three water wells match the characteristics of the shallow methane that has been in Franklin Forks and the Salt Springs area for many decades. The results do not match the chemical footprint of the natural gas coming from the Marcellus Shale.'"

Don't expect that to end the issue, though ...

U.S. EPA Issues Draft Hydraulic Fracturing Guidance

U.S. Environmental Protection Agency (EPA) has issued a draft guidance document to be used when "permitting the underground injection of oil- and gas-related hydraulic fracturing using diesel fuels where EPA is the permitting authority."  From the related press release:  "Today, the U.S. Environmental Protection Agency (EPA) released draft underground injection control (UIC) program permitting guidance for class II wells that use diesel fuels during hydraulic fracturing activities. EPA developed the draft guidance to clarify how companies can comply with a law passed by Congress in 2005, which exempted hydraulic fracturing operations from the requirement to obtain a UIC permit, except in cases where diesel fuel is used as a fracturing fluid."

Comments are due 60 days from its publication in the Federal Register.

A Potential Stop to Clean Water "Power Grab" via EPA Guidance?

The Congressional Committee on Transportation and Infrastructure announced today that H.R. 4965 was introduced to "prohibit the Obama Administration from finalizing or implementing the EPA and Corps Clean Water Act 'guidance' in order to significantly broaden the scope of federal jurisdiction under the Act."  The press release is good reading if your position is that USEPA and the Army Corps are illegally expanding federal power under the CWA without any public vetting of what is being called "de facto federal regulation."  This will be an interesting bill to follow.

Indian Tribes Oppose BLM Frac Regulation

This is interesting.  The Minot Daily News is reporting that there is opposition to the application of hydraulic fracturing regulations proposed by the Bureau of Land Management to Indian reservations.  "The chairman of the Three Affiliated Tribes questions whether the Bureau of Land Management has authority to regulate hydraulic fracturing on Indian reservations.  *** 'I can find no authority for the Bureau of Land Management to regulate activities on Indian lands, including hydraulic fracturing,' Tex Hall told members of the House Natural Resource Committee's Subcommittee on Indian and Alaska Native Affairs at an oversight hearing in Washington, D.C., Thursday."  The concern - the negative impact these regulations might have on the reservations' economies.

The response from BLM might be considered by some to be a little patronizing.  A Department of Interior spokesman said, "As we continue to expand domestic natural gas production, it is essential that the public have full confidence that the right safety and environmental protections are in place."  What?  The tribes aren't doing enough to protect their own lands?

Shale Gas

CNN Money has an interesting article on hydraulic fracturing and the shale gas boom.  Best quote in response to distortions from opponents of oil and gas development:  "If you want to live by the precautionary principle, then crawl up in a ball and live in a cave."

EPA Issues Updated Air Pollution Standards for Oil and Natural Gas

Today USEPA issued its final rules that provide New Source Performance Standards (NSPS) for volatile organic compounds (VOC) and sulfur dioxide, and National Emission Standards for Hazardous Air Pollutants (NESHAP) for oil and gas production and natural gas transmission and storage. Integral to the rules is the requirement that producers capture VOC emissions and methane during well completions (Green Completions) for hydraulically fractured wells. However, in response to significant industry comments, USEPA has decided to allow flaring and phasing in the Green Completion requirements in 2015. This will allow ample time for all producers to obtain the necessary equipment to meet the Green Completion requirements. The final rules are the result of over 150,000 public comments including those from government agencies, industry and environmental groups. 

Air Pollution Rule Delayed Again

The USEPA announced that it is again delaying the issuance of its proposed rules regulating air emissions from hydraulically fractured wells.  The proposed NSPS and NESHAP rules were scheduled for issuance on April 3 according to the Consent Decree issued in WildEarth Guardians, et al. v. Jackson.  However, in response to more than 156,000 comments on the proposed rules, USEPA sought more time to address the public and industry comments.  USEPA entered into a stipulation with the Plaintiff environmental organizations that granted it until April 17 to issue the rules, and the Court granted the extension by modifying the Consent Decree.  The modified Consent Decree can be found here.

U.S. EPA Cannot Disapprove Texas' SIP

The United States Court of Appeals for the Fifth Circuit recently vacated U.S. EPA's disapproval of Texas' statewide implementation plan for administering federal air quality standards.  See Luminant Generation Co., LLC v. U.S. EPA, Case No. 10-60891.  Among other things, it found that "EPA had no legal basis on which to disapprove those regulations," and that no deference was owed to certain of EPA's interpretations of law.

Read the whole thing.

U.S. EPA Backs Off On Enforcement Action

We've mentioned before the trouble U.S. EPA has had in blaming Range Resources for alleged natural gas contamination, based on the science alone.  See here, e.g. (Lesson:  The Science Matters).  The WSJ is reporting that the agency may have finally learned that lesson:  "The Environmental Protection Agency has dropped its claim that an energy company contaminated drinking water in Texas, the third time in recent months that the agency has backtracked. *** On Friday, the agency told a federal judge it withdrew an administrative order that alleged Range Resources Corp. had polluted water wells in a rural Texas county west of Fort Worth. Under an agreement filed in U.S. court in Dallas, the EPA will also drop the lawsuit it filed in January 2011 against Range, and Range will end its appeal of the administrative order."

Read it all.

[Note:  Subscription may be required.]

U.S. EPA Proposes New GHG Standards for Power Plants

U.S. EPA has proposed new standards for greenhouse gas (GHG) emissions from new power plants.  See here (press release) and here (for more, including links to the proposed standard).  According to Bloomberg:  "The rules will permit emissions from new power plants at 1,000 pounds of carbon dioxide per megawatt hour, about the level for a modern natural-gas plant, the EPA said today in an e-mailed statement. The limit would effectively preclude construction of new coal-fired plants, which are struggling to compete with decade-low natural gas prices."  For more, see here.

The U.S Supreme Court Decided Today A Significant CWA Case

Today the U.S. Supreme Court unanimously (with two concurring decisions) decided Sackett v. EPA - a case that everyone in the environmental law business has been anxiously awaiting.  The issue concerns whether a USEPA unilateral compliance order issued under the Clean Water Act was subject to judicial review. USEPA had issued the Sacketts a compliance order asserting the Sacketts had illegally filled jurisdictional wetlands.  The compliance order directed the Sacketts to immediately restore the wetland and subjected them to stiff daily penalties for every day they failed to comply with the order.  The USEPA argued their compliance order was not subject to judicial review. (We note the Court did not provide any insight into what is a jurisdictional water subject to regulation. However, the Court did admonish Congress and the USEPA for failing to provide clear direction on the issue.)

The Supreme Court found the compliance order did require due process review - a direction the Court signaled during heated oral arguments.  This decision opens a brand new opportunity for persons who receive unilateral orders from EPA.  While the decision is based on the Clean Water Act, its implications will be interesting to watch!

[Update:  We thought you might be interested in some of the language in Justice Alito's concurring opinion:

The position taken in this case by the Federal Government - a position that the Court now squarely rejects - would have put the property rights of ordinary Americans entirely at the mercy of Environmental Protection Agency (EPA) employees.

The reach of the Clean Water Act is notoriously unclear. Any piece of land that is wet at least part of the year is in danger of being classified by EPA employees as wetlands covered by the Act, and according to the Federal Government, if property owners begin to construct a home on a lot that the agency thinks possesses the requisite wetness, the property owners are at the agency’s mercy. The EPA 


Continue Reading...

Update: U.S. EPA and Dimock, PA

The Patriot-News is reporting that U.S. EPA sampling in Dimock, Pennsylvania shows no contamination from oil and gas development:  "Federal environmental regulators say well water testing at 11 homes in a northeastern Pennsylvania village did not turn up elevated levels of contamination from gas drilling."  The report makes an interesting juxtaposition:  "A handful of residents are suing Cabot Oil & Gas Corp., saying the Houston-based driller contaminated their wells with potentially explosive methane gas and with drilling chemicals. *** Many other Dimock residents assert the water is clean."

U.S. EPA Will Take New Samples in Pavillion, WY

We've noted before the problems with a U.S. EPA study purporting to link groundwater contamination in Pavillion, WY to frac operations (see here, e.g.).  Apparently, U.S. EPA has noticed as well.  From a recent news release:  "The EPA, the State of Wyoming, and the Tribes recognize that further sampling of the deep monitoring wells drilled for the Agency’s groundwater study is important to clarify questions about the initial monitoring results. The EPA will partner with the State and the United States Geological Survey (USGS), in collaboration with the Tribes, to complete this sampling as soon as possible and will collaborate with the State and other stakeholders in designing the sampling methodology, the quality assurance plan, and other features of the next phase of testing."

New (Relatively) KY Oil Pipeline Spill Case

In Mid-Valley Pipeline Co. v. S.J. Louis Construction, Inc., the United States District Court for the Eastern District of Kentucky (Northern Division) recently held (among other things) that (a) the Clean Water Act (CWA) allows a pipeline owner to recover penalties, paid to U.S. EPA, from a third party through a contribution or indemnity claim; and (b) a right to contribution exists under federal common law (through the CWA).  See here.

Vorys Successful in Ohio Supreme Court Case Regarding Large-Scale Wind Farm

The Supreme Court of Ohio has affirmed the Ohio Power Siting Board’s approval of Buckeye Wind LLC’s application to construct and operate a commercial  wind farm in Champaign County, Ohio.  Vorys’ energy attorneys Howard Petricoff, Stephen Howard and Michael Settineri represented Buckeye Wind at all phases of the proceeding.  The Court’s press release and a copy of the opinion can be found at the following link: www.sconet.state.oh.us/PIO/summaries/2012/0306/101554.asp

UT Hydraulic Fracturing Study Finds No Groundwater Contamination

A recent study conducted by the University of Texas found no evidence to support claims of groundwater contamination from hydraulic fracturing operations:  "Researchers found no evidence of aquifer contamination from hydraulic fracturing chemicals in the subsurface by fracturing operations, and observed no leakage from hydraulic fracturing at depth."  Just as interesting (and something that many farmers already know):  "Methane found in water wells within some shale gas areas (e.g., Marcellus) can most likely be traced to natural sources, and likely was present before the onset of shale gas operations."

For more, see here.

USACE Reissues Nationwide Permits - Wells Pad Construction Now Covered

Last week the United States Army Corps of Engineers reissued 48 of the 49 existing nationwide permits that authorize certain activities requiring Clean Water Act 404 permits. The Federal Register notice, published February 21, 2012, can be found here.  The prior version of NWP 39, permitting certain Commercial and Institutional Development activities, excluded coverage for the constuction of oil and gas wells and attendant features.  The reissued NWP 39 was amended so that it now covers oil and gas well construction.  The Federal Register clarifies at 77 FR 10223 that USACE district engineers may add conditions to NWP authorizations "to require the removal of these pads and restoration of the site once oil or gas extraction operations have ceased and the wells will no longer be used."

Ohio EPA Oversight Costs a Thing of the Past?

Paying Ohio EPA its “oversight costs” (administrative costs) might be a thing of the past?  A recent Ohio First Appellate District decision (Ohio v. Mass Realty) suggests that parties under an Order are not obligated to make such payments.  This is a very interesting decision that Ohio EPA chose not to appeal to the Ohio Supreme Court.  If you are currently under orders to pay these costs . . . you need to read this decision.

Hydraulic Fracturing: Myth and Reality

We thought you might be interested in this column on several myths told about hydraulic fracturing.  A sample:  "Those who oppose the practice say that chemicals in fracking fluids can pollute water tables that lie just a few hundred feet or less below the surface. In rock formations like the Marcellus shale, a deposit in the Northeast that underlies parts of New York, Pennsylvania, Ohio and West Virginia, fracking takes place well below 7,000 feet and solid rock separates the shale deposits from shallow groundwater aquifers. The buffer makes contamination from fracking virtually impossible. In addition, the wells being drilled are constructed with at least four thick layers of steel casing and concrete such that they are cemented in place to create a solid divider between gas production and the fresh water aquifers."

House Hearing on U.S. EPA Hydraulic Fracturing Research in Pavillion, WY

We thought you might be interested in the testimony at a recent House Subcommittee hearing on U.S. EPA's hydraulic fracturing research in Pavillion, WY.  For example, from Tom Doll, State Oil & Gas Supervisor, Wyoming Oil & Gas Conservation Commission:  "The Pavillion Draft Report was issued with incomplete data and technically inadequate conclusions.  There was no opportunity to review and verify the data by Wyoming state agencies. The data was not verified by further testing or vetted through a peer review process. Based on a limited sampling and an inconclusive data set from Pavillion Wyoming ground water, EPA’s conclusion is now national and international fodder for the hydraulic fracturing debate. Now the quality of the hydraulic fracturing debate suffers and the EPA’s science itself is questioned."

For more, see here (including video).

Ohio EPA Pulls Water Quality Rules Package

Ohio EPA first introduced a water quality rule package in 2006 - intended to cover water quality standards, 401 certifications and antidegradation.  The most recent reintroduction of that rule package was filed in December 2011, three days before Ohio's Common Sense Initiative (CSI) program was to take affect.  The CSI program requires rules to undergo economic impact analysis.  At industry request, the Ohio EPA Director pulled the rule package on February 1, 2012 and will refile them so they can go through the full CSI analysis.  Here is the Ohio EPA Press Release.

New Ohio Air Permit

Ohio EPA has issued its final air pollution shale oil and gas well-site general permit.  "This general permit covers all operations involved in an oil and gas well site during the production phase of the well. This includes glycol dehydration units, natural gas and diesel engines, storage tanks, flares, and ancillary equipment."  You can view it and supporting documentation here.

Note:  Ohio EPA's Assistant Chief of Permitting wants to remind you that "if you previously submitted a letter stating that you were going to put a well into production and planned to apply for the general permit when it becomes available, now is the time for you to submit your application."

FirstEnergy to Close Six Coal-Fired Power Plants

Remember, it's not a bug - it's a feature:  "FirstEnergy Corp. announced today that its generation subsidiaries will retire six older coal-fired power plants located in Ohio, Pennsylvania and Maryland by September 1, 2012. The decision to close the plants is based on the U.S. Environmental Protection Agency Mercury and Air Toxics Standards (MATS), which were recently finalized, and other environmental regulations."  (FirstEnergy Press Release.)

Yes, U.S. EPA's regulations do have consequences for jobs.

The EPA's Common Sense Initiative and Its Legacy on the Finishing Industry

Anthony J. Giuliani, a partner in the Columbus office of Vorys, Sater, Seymour and Pease LLP, analyzed  the U.S. Environmental Protection Agency’s 1994 “Common Sense Initiative”  in an article published in the February edition of Products Finishing Magazine. Giuliani, a member of the firm’s energy and environmental practice group, found that – although the program was largely deemed a failure – a handful of valuable research and development projects came as a result of the initiative.

Read the entire article.

USEPA Seeks Peer Review of Pavilion, WY Ground Water Investigation

As previously reported on this Blog, on December 14, 2011 USEPA a draft research report entitled "Investigation of Ground Water Contamination near Pavilion, Wyoming."  USEPA announced yesterday that it now "invites public nominations of scientific experts to be considered as peer reviewers of the external review" of this draft research report.  See the Federal Register Notice here

Future of USEPA Compliance Orders at Issue . . .

Earlier this week the U.S. Supreme Court heard oral arguments in a major environmental case, Sackett v. EPA.  The arguments concerned whether a U.S. EPA complaince order (requiring action and imposing penalties) issued without meaningful judicial review, is constitutional or not.  Attached is a link to the oral argument . . . very interesting reading.



Clean Ohio Funding Update

The Clean Ohio Assistance Fund (COAF) has announced that it is no longer accepting applications for grant funding (under $300K).  The Clean Ohio Revitalization Fund (CORF) has enough funds for one more round (due January 20th) for a shot at the remaining $20 million (grant amounts up to $3M). The challenge for Ohio’s elected leadership will be to locate replacement funding for the “liquor sales profits” funding stream that was moved to Jobs Ohio in 2011. A link to Ohio's Brownfield Revitalization webpage is here.


We've reported previously on the Draft Supplemental Generic Environmental Impact Statement (SGEIS) issued by New York (see here, e.g.).  The NYT is reporting that more than 20,000 comments have been received regarding that draft:  "After taking over 20,000 public comments, more than on any issue they have ever faced, New York environmental officials are getting ready for the final phase of work on their proposal to allow hydrofracking of natural gas in the state."  How many are "form" comments sent in by multiple parties ...

That's Not Right ...

The NYT is reporting that transportation fuel companies paid an estimated $6.8 million last year in penalties for failing to blend a special type of biofuel that doesn't even exist:  "Penalizing the fuel suppliers demonstrates what happens when the federal government really, really wants something that technology is not ready to provide. In fact, while it may seem harsh that the Environmental Protection Agency is penalizing them for failing to do the impossible, the agency is being lenient by the standards of the law, the 2007 Energy Independence and Security Act."

That can't be right, can it?

Ohio's New Industrial Activity Storm Water General Permit

Ohio's new industrial activity storm water general permit went into effect January 1, 2012.  If you have an existing industrial activity general permit that is expired, you will need to submit to Ohio EPA a new Notice Of Intent (NOI) application form before March 31, 2012.  Ohio EPA's webpage that provides a Fact Sheet, NOI Forms and other information can be found here.

If you are covered under this permit, be sure to read it carefully as provisions have changed and will require additional compliance obligations. 

Update: Pavillion

We reported earlier this month on a U.S. EPA study purporting to link groundwater contamination in Pavillion, WY to frac operations (see here).  The Star-Tribune has an interesting article noting some of the defects in that study:  "Yet the EPA’s own data —including details not mentioned in the draft report — indicates the agency’s conclusions are partially based on improperly analyzed samples from six private drinking-water wells and two EPA-drilled deep monitoring wells in Pavillion. *** The EPA also found contamination in pure water control samples, didn’t purge the test wells properly before gathering samples and didn’t mention in its report whether it tested water carried by a truck used in well drilling, say officials with the Wyoming Water Development Commission who, because of their expertise on water wells, reviewed the EPA’s publicly available information."

As we noted before, U.S. EPA's record on these types of issues isn't that good ...

Study: Natural Gas GHG Impact

The Times Leader has an interesting article on a new study done by researchers at Wilkes University on the greenhouse gas footprint of natural gas:  "'The main message is that seven independent studies now agree that shale gas has a lower greenhouse footprint than coal. That conclusion largely contradicts the findings by a team of researchers at Cornell who published a paper last April that argued shale gas has a higher footprint than coal due to inadvertent releases of methane at gas wells,' [Professor] Klemow said."

Seven?  Nice.

Demand for Cheap Natural Gas

The WSJ has a report on how the interests of large domestic manufacturers and natural gas exporters may diverge:  "U.S. officials will soon weigh in on a fight between companies that want to export some of America's fast-growing supply of natural gas and big manufacturers that oppose the exports because they rely on cheap domestic gas.  *** The Energy Department is looking at whether exports will drain U.S. supplies and inflate domestic prices. The Energy Information Administration, part of the department, is expected to deliver its analysis in a few weeks."

(Note:  Subscription may be required.)

New Ohio Pipeline

The Columbus Dispatch is reporting on a new Spectra Energy Corp. pipeline intended to connect Ohio resources to Spectra’s Texas Eastern pipeline system, which runs from Texas to New York.  "The Texas Eastern pipeline already goes through Ohio from east to west. This new addition will create a connection between the pipeline and the northeastern Ohio counties that are expected to have the most shale-gas resources, though the specific path is still being determined, said Wendy Olson, spokeswoman for Houston-based Spectra."

For more, see here (Spectra press release).

Ohio EPA Issues Renewal Industrial Storm Water General Permit with New Requirements

The Ohio Environmental Protection Agency (Ohio EPA) has issued its final National Pollutant Discharge Elimination System Industrial Storm Water General Renewal Permit. This permit is significantly different than Ohio EPA’s previous industrial storm water general permit, which included broad, non-facility specific, permit requirements. This final renewal permit now mirrors U.S. EPA’s Multi-Sector Industrial Storm Water General Permit and establishes industry-specific requirements for managing and monitoring storm water discharges.

Continue Reading...

New WV Rules to be Signed

The WSJ is reporting that Governor Earl Ray Tomblin is prepared to sign a new rule package governing Marcellus drilling in West Virginia:  "Large-scale drilling for natural gas in West Virginia's Marcellus shale deposit will require $10,000 and $5,000 permit fees, buffer zones around wells and advance notices to property owners and the public, under a broad regulatory package the Legislature approved Wednesday.  *** Gov. Earl Ray Tomblin heralded the measure at a packed Capitol news conference shortly after the House of Delegates passed it 92-5 and the Senate then voted unanimously to send it to his desk, ending a four-day special session."

For a copy of the legislation, see here.

HF Disclosure Rules

The WSJ is reporting that both Texas and Colorado have now adopted rules requiring disclosure of frac fluid constituents:  "The rules are part of a broader effort by states to show they are serious about regulating the rapidly expanding hydraulic fracturing ahead of possible new federal rules governing chemical disclosure, water disposal, air emissions and well construction."  (Note:  Subscription may be required.)  For more on the Texas program, see here (the Houston Chronicle) and here (for a copy of the rules).  For more on the Colorado program, see here (the Colorado Independent) and here (for a copy of the rules).

Ohio EPA Issues for Public Comment a Draft General Permit for Wetland and Stream Impacts Related to Gas Well Sites

Ohio EPA has issued a Draft General Permit for Water Quality Certification related to oil and gas exploration and production (E&P) wells and attendant features.  The stated purpose of the General Permit is to expedite the review of applications for the construction of E&P wells and attendant features pursuant to Clean Water Act Section 401.  Only minimal adverse impacts to waters of the State will be covered by this general permit.  Unfortunately, this general permit will not speed decisions for CWA Section 404 permits required from the Army Corps of Engineers.  Comments are due to Ohio EPA by January 13, 2012.  To see the Public Notice, Draft General Permit and other information related to this, see here.

U.S. EPA Links Fracing to Contamination

The NYT is reporting on a recent study by U.S. EPA regarding complaints of water contamination in Pavillion, Wyoming:  "Chemicals used to hydraulically fracture rocks in drilling for natural gas in a remote valley in central Wyoming are the likely cause of contaminated local water supplies, federal regulators said Thursday."  For more, including a copy of the EPA report, see here.

A note of caution, however:  U.S. EPA's record on these issues isn't good so far.  See also here.

[Update:  For Encana's response to the report, see here (E.g., "Several of the man-made chemicals detected in the EPA deep wells have never been detected in any of the other wells sampled. They were, however, detected in many of the quality control (blank) samples - which are ultra purified water samples commonly used in testing to ensure no contamination from field sampling procedures."  Hmmm ...).  (Bumped.)]

PA Air Emission Data Required

We've reported previously on air emissions studies done in Pennsylvania (see here, e.g.).  The Pennsylvania Department of Environmental Protection (PA DEP) is now requiring certain E&P companies to submit air emissions data regarding their facilities for 2011 by March 1, 2012:  "'The use of natural gas for fuel will have very beneficial impacts on air quality, and we want to ensure we are protecting the quality of Pennsylvania’s air as we access and bring to market this abundant, domestic fuel source,' DEP Secretary Mike Krancer said. *** This week, the agency is initially asking 99 operators identified as being involved in natural gas development, production, transmission, processing and related activities to respond with the necessary data."  (From this press release.)

For more, see here.

Colorado Disclosure Rules

The Colorado Independent is reporting on new frac fluid disclosure rules being considered by the Colorado Oil and Gas Conservation Commission (COGCC):  The commission "will take at least another week to decide on the issue after hearing more than 11 hours of testimony from Colorado residents, elected officials, oil and gas industry representatives and drilling regulators in Denver."  Notably, one COGCC director defended various staff positions preserving trade secret protections according to the article.


Health Impacts

MedPage Today has an interesting article on the claimed health impacts of increased Marcellus exploration in Pennsylvania.  The take-away conclusions:  "A few people have had clearly documented health problems related to the Marcellus gas boom, but these were occupational exposures in rig workers.  Some aspects of gas drilling and production release toxins into the environment, but the level of exposure to the public is uncertain and no links to specific instances of disease have been confirmed, and may never be."  (Emphasis is ours.)  And regarding groundwater contamination due to frac operations in particular:  "But in that scenario the fracking chemicals would presumably be highly diluted. Rob Jackson, PhD, of Duke University, said preliminary results from a study he and his colleagues conducted in northeastern Pennsylvania showed no evidence of fracking fluids or brine in well water sampled from more than 200 sites."  (Emphasis is also ours.)

Read the whole thing.

Penn State Study Update

We reported previously on a study done by Penn State researchers reporting that "[t]ests of water wells near gas drilling sites generally didn't find detrimental changes in water quality."  See here.  The WSJ is reporting that the researchers found an error in the report resulting in "far less evidence of well contamination by bromides, salty mineral compounds that can combine with other elements to cause health problems, than first suggested."  (Emphasis is ours.)  (The error stemmed from an independent lab analysis.)

DRBC Update II

The Delaware River Basin Commission (DRBC) has issued revised draft regulations regarding the construction and operation of natural gas development projects (for previous entries, see here and here, e.g.).  According to the WSJ:  "Energy companies collectively would be permitted to drill a maximum of 300 natural gas wells after receiving initial approval to explore the Delaware River basin under draft rules released Tuesday by the agency that monitors the drinking-water supply of 15 million people."  (Emphasis is ours.)  (Subscription may be required.)

A hearing to consider the rules has been scheduled for November 21, 2011.  For more, including a copy of the revised regulations, see here.

[Update:  The hearing has been postponed because a couple of the commissioners opposed the proposal.  See here. (Moved up.)]

U.S. EPA - Environmental Justice

We've mentioned before U.S. EPA's efforts to incorporate concepts of "environmental justice" into its administration of the country's environmental laws (see here, e.g.).  Recently, EPA released Plan EJ 2014, described by the Administrator as offering "a road map that will enable us to better integrate environmental justice and civil rights into our programs, policies and daily work."  For more, see here (U.S. EPA site).

For the first of a three-part commentary series that you might enjoy on this topic, see here (Power Line).  Very nice.

New Director of Ohio Department of Natural Resources Named

Governor Kasich has appointed Agriculture Director Jim Zehringer to lead the Ohio Department of Natural Resources.  Assistant Director Scott Zody had served as interim director when former director David Mustine stepped down.  For more information on new Director Zehringer, please see here

The NY Debate

The Buffalo News has an article pointing out the opposing views of environmentalists and New York landowners over the development of the landowners' mineral interests:  "'The extreme environmentalists have misinformed and panicked people,' said Dan Fitzsimmons, president of the Joint Landowners Coalition of New York, which represents people who have leased their lands to gas companies for potential drilling. *** Still, the environmentalists have one other argument on their side: fear of the unknown."

GWPC Report

The Ground Water Protection Council (GWPC) has issued a report on agency groundwater investigation findings in two states, Ohio and Texas.  It has interesting things to say regarding alleged groundwater contamination from well stimulation activities.  From the Executive Summary, for example:

Neither state has documented a single occurrence of groundwater pollution during the site preparation or well stimulation phase of operations. Despite this, Ohio has implemented more detailed notification, inspection, record keeping, and reporting requirements in response to the national debate on the process of hydraulic fracturing. Texas is currently placing summary data online for new completions, has implemented new disposal well requirements in the Barnett Shale play, and recently enacted statutes requiring public disclosure of hydraulic fracturing chemicals.  (Emphasis is ours.)

For a copy of the report, see here (generally) and here (a copy of the report).

Wastewater Disposal - Ohio

We've noted before that Ohio will not allow POTWs to be used for the disposal of wastewater (see here, e.g.).  You might be interested to know that Ohio EPA has asked the Environmental Appeals Review Commission to vacate as unlawful the permits issued to the city of Warren, Ohio, and Patriot Water Treatment, LLC, to allow such disposal:

Revised Code 1509.22(C) specifically states that brine may only be disposed of by one of the following three methods:  (1) underground injection; (2) surface application on roads for dust control and ice; or (3) any other method approved by the Chief of the Division of Oil and Gas Resources Management ***.  Disposal of brine wastewater through a wastewater treatment plant and discharge to waters of the state is not an authorized method of disposal under R.C. 1509.22(C), unless and until the Chief *** approves this technology.  At this time, no such approval has been given.  (Emphasis in original.)

For the filing, see here.

Hydraulic Fracturing on 2012 Agenda for USEPA Inspector General

The scrutiny continues: The USEPA Office of Inspector General recently announced its FY 2012 Annual Plan.  As stated on USEPA's webpage, the Office of Inspector General (OIG) is an "independent office within the EPA that helps the Agency protect the environment in a more efficient and cost effective manner."  Basically, the OIG conducts audits, evaluations, inspections and investigations related to EPA programs.  The 2012 Annual Plan lists a "special review" carry over assignment from 2011 related to "Oversight of Hydraulic Fracturing Impact on Water Resources".  A new assignment for 2012 relates to "EPA's Protection of Human Health and the Environment From the Effects of Hydraulic Fracturing". 

EPA Announces Final Study Plan to Assess Hydraulic Fracturing

EPA announced on November 3 its final research plan on hydraulic fracturing. The Congressionally directed study will evaluate potential impacts on drinking water resources. In March 2010, EPA announced its intention to conduct the study in response to a request from Congress. Since then, the agency has held a series of public meetings across the nation to receive input from states, industry, environmental and public health groups, and individual citizens.

The initial research results and study findings are to be released to the public in 2012. The final report is to be delivered in 2014. The final study plan looks at the full cycle of water in hydraulic fracturing, from the acquisition of the water, through the mixing of chemicals and actual fracturing, to the post-fracturing stage, including the management of flowback and produced or used water as well as its ultimate treatment and disposal. Earlier this year, EPA announced its selection of locations for five retrospective and two prospective case studies - our previous post on these locations can be found here.

PA - Study Finds Pre-Existing Water Well Impacts

With all of the claims regarding freshwater impacts from shale drilling, we thought you might find this of interest (from Essential Public Radio 90.5):  "Tests of water wells near gas drilling sites generally didn't find detrimental changes in water quality, according to a new report issued by The Center for Rural Pennsylvania at Penn State University. However, scientists said more research is needed on the sources of methane in water wells. ***  According to the report, many of the problems had existed before drilling even started. About 40 percent of the wells failed at least one water quality test before gas drilling started. Most of the failing grades were due to higher than accepted levels of coliform bacteria and turbidity, or cloudiness. Some wells also showed methane before drilling."  (Emphasis is ours.)

Not a surprise for many in PA who have been following this issue ...

For a copy of the study itself, see here.

Job Training

You may be interested in this article from the WSJ:  "May snapped up the opportunity through his local community college, Zane State, to take a two-week, 80-hour shale exploration certification course developed by the private company Retrain America. When he graduated, he'd interviewed for three jobs and taken a position cementing wells for Halliburton that will pay $60,000 to $70,000 a year."  (Emphasis is ours.)

Very nice.

USEPA Schedules Hydraulic Fracturing Wastewater Rule Development

USEPA announced yesterday a schedule to develop standards for wastewater discharges associated with natural gas production.  Separate standards will be set for wastewaters associated with coalbed methane production (proposed rule expected 2013) and shale production (proposed rule expected 2014).  The agency will be looking to promulgate pretreatment standards.  The USEPA press release can be found here.

Ohio Draft Air GP Published for Comment

Ohio EPA has published for comment its draft air pollution oil and gas well site general permit (see here for copies of the terms and qualifying criteria documents).  It is intended to cover the equipment used during the production phase of a Marcellus or Utica/Point Pleasant shale well - drilling and completion activities are currently exempt (according to Ohio EPA).

Comments are due by November 28, 2011.

Note:  Ohio EPA has also notified producers making inquiries about air permits about an additional permitting option associated with Ohio's air pollution control program - stating, "Because Ohio EPA has only recently determined that an air permit is necessary and believes that the final general permit will be available before any case-by-case permit could be issued, Ohio EPA is exercising its discretion not to penalize a company for failing to obtain an air permit before installing an oil and gas well as long as the company applies for the general permit within thirty (30) days of the general permit becoming available."

They have asked for notification and even prepared a sample letter to use.  Nice.

NY Proposes Hydraulic Fracturing Regulations

The New York Department of Environmental Conservation (NYSDEC) has proposed new regulations related to the use of high-volume hydraulic fracturing as part of a State Pollutant Discharge Elimination System (SPDES) general permit.  From the NYSDEC website:

NYSDEC has made a tentative decision to issue a SPDES general permit that will authorize point source discharges from high volume hydraulic fracturing (HVHF) operations to, in or over waters of the State. The SPDES general permit requires a Notice of Intent submittal to NYSDEC in order to discharge under this general permit. Permittees must develop a comprehensive Stormwater Pollution Prevention Plan (SWPPP) and implement control measures that minimize the discharge of pollutants to waters of the State. The NYSDEC reserves the right to require any applicant seeking coverage under this General Permit to apply for an individual SPDES permit. The General Permit has five year permit.

Public comments are due December 12, 2011.

NSPS Public Hearing

We've noted previously a U.S. EPA rulemaking proposal designed to to reduce air emissions from oil and gas operations.  Here is an article from Forbes.com on the public hearing recently held in Texas on the issue:  "The agency is proposing standards to curb hydraulic fracturing, or 'fracking,' by requiring operators to capture and sell natural gas that now escapes into the air. Thursday's EPA hearing was held in a region with a vast area of urban drilling atop the natural gas-rich Barnett Shale. The EPA's proposal would apply new pollution control standards to about 25,000 gas wells that are hydraulically fractured each year. *** While industry representatives touted the jobs and prosperity that drilling brings, critics argued it's not worth the environmental risk of toxic spills, scattered drill site explosions, tainted drinking water and polluted air."

Allegheny National Forest Decision Upheld

We reported previously on a district court decision enjoining the implementation of a settlement reached between the U.S. Forest Service and the Sierra Club that required 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 (see here).

That decision was recently upheld by the United States Court of Appeals for the Third Circuit.  For a copy of the Court of Appeals' decision, see here (Case Nos. 10-1265 and 2332).

Ohio Supreme Court Makes Ruling on Property Rights Along Lake Erie

Yesterday the Ohio Supreme Court unanimously reaffirmed a 1878 decision in a dispute between the state and private property owners who border the Lake Erie shoreline.  The Court held that "the public trust in Lake Erie extends to the natural shoreline, which is the line at which the water usually stands when free from disturbing causes."   The court rejected the idea the the boundary is a movable line that changes moment to moment.  The decision, Merrill v. ODNR, can be found here.


The New York Department of Environmental Conservation (NY DEC) has finally released a revised Draft Supplemental Generic Environmental Impact Statement (SGEIS) for public review.  Interestingly, the NYT introduces its report on the document as follows:  "Natural gas drilling using a controversial technique known as hydraulic fracturing could create up to 37,000 jobs and generate from $31 million to $185 million a year in added state income taxes for New York at the peak level of well development."

For more, including a copy of the report itself, see here.

DRBC Update

We've reported previously on the Delaware River Basin Commission's (DRBC's) oil and gas rulemaking (see here and here, e.g.).  The Philadelphia Inquirer is reporting that the rule package will be considered in October:  "The Delaware River Basin Commission, which has not allowed natural-gas drilling in eastern Pennsylvania counties within the basin, announced Tuesday that it would not act on its proposed drilling regulations at its Sept. 21 meeting, as one commission member had demanded."

Ohio Update

You may be interested to know:

  • Director of Ohio's Department of Natural Resources, David Mustine, has stepped down to become General Manager for Energy for JobsOhio, the state’s new private, nonprofit development corporation.  For more, see here (ODNR News Release).  Assistant Director, Scott Zody, will serve as interim director of the state agency.
  • Two bills have been introduced in the Ohio Senate to (i) impose a moratorium on fracing until U.S. EPA finishes its hydraulic fracturing study (SB 213); and (ii) regulate the fluids used in the frac process, including disclosure (SB 212).  There is little likelihood that this legislation will be adopted.  Nonetheless, it was only a matter of time before something like these would be introduced ...


Green Jobs

Our mention yesterday of the jobs being created in North Dakota as a result of oil development of the Bakken reminded us of this article in the NYT on the promise of "green jobs":  "In the Bay Area as in much of the country, the green economy is not proving to be the job-creation engine that many politicians envisioned. President Obama once pledged to create five million green jobs over 10 years. Gov. Jerry Brown promised 500,000 clean-technology jobs statewide by the end of the decade. But the results so far suggest such numbers are a pipe dream."  (Emphasis is ours.)

When even the NYT is saying it, you know there's a problem ...

New Air Regs Proposed

U.S. EPA has published a proposed new rule intended to broadly impact our industry entitled, "Oil and Natural Gas Sector:  New Source Performance Standards and National Emission Standards for Hazardous Air Pollutants Reviews."  We reported on it previously here (Beware of Greeks Bearing Gifts).  Comments are due October 24, 2011.  In addition, U.S. EPA has scheduled public hearings in Pittsburgh, PA (September 27, 2011), Denver, CO (September 28, 2011), and Arlington, TX (September 29, 2011) (see here).

Maybe we'll see the President intervene as he did here just recently (statement from the President requesting that U.S. EPA withdraw draft Ozone National Ambient Air Quality Standards).  Maybe ...

CERA: U.S. EPA GHG Estimates Overstated

IHS Cambridge Energy Research Associates (IHS CERA) has issued a new report calling for the re-evaluation of greenhouse gas emissions estimates prepared by U.S. EPA.  From the CERA website:  "The estimates are based on assumptions that do not reflect current industry practice and should be reevaluated, the reports says. *** 'Estimates are being used that are not supported by data, do not reflect current industry practice and would be unreliable to use as a base for decision-making.'"  For more, including a copy of the report, see here.

"Most complaints are unfounded."

That's according to an article in the Philadelphia Inquirer on complaints regarding water withdrawals by operators in Pennsylvania.  "Public confusion about where the drillers can legally withdraw water in the summer - and where it is banned - has caused an increase in complaints to the SRBC [i.e., the Susquehanna River Basin Commission]. *** Withdrawals that the public reports as suspicious turn out to be legal pumping by municipal road crews, garden centers, and nurseries that are allowed to withdraw small amounts of water. Gas drillers have sufficient, metered withdrawal points to meet their needs."

Recent Case Regarding Exposure to Benzene

The Vermont Supreme Court found that circumstantial evidence of benzene exposure allegedly causing cancer was insufficient to allow a jury to determine causation.  The case was co-counseled by Vorys lawyer Joe Lonardo.  The case, Blanchard v. Goodyear Tire & Rubber Co. can be found here.  A more thorough description of the case can be found at the Vorys toxic tort weblog.

Cornell Air Study Refuted

We reported previously on a Cornell study claiming that natural gas development will likely contribute more to global warming than burning coal (see here).  The Patriot-News is now reporting on the conclusions reached by scientists at Carnegie Mellon University:  "The peer-reviewed study published Aug. 5 in 'Environmental Research Letters' appears to be a direct refutation of an April study from researchers Robert Howarth and Anthony Ingraffea at Cornell University that indicated that shale gas was worse for global warming than coal."  Looking specifically at Marcellus shale development, it finds that "Marcellus gas is essentially no different than conventional natural gas, the study found, and 20-50 percent cleaner than coal for producing electricity."

New Aggregation Claims

On July 21, 2011, Citizens For Pennsylvania’s Future (“CPF”) filed a lawsuit against Ultra Resources, Inc. (“Ultra”) in the United States District Court for the Middle District of Pennsylvania alleging that Ultra violated the Clean Air Act ("CAA") by not applying for and obtaining the proper permit to construct and operate its natural gas wells, pipelines, compressor stations and associated equipment in Tioga County and Potter County, Pennsylvania.  The central issue is whether all of Ultra's equipment involved in its natural gas production operations should be aggregated for air permitting purposes, which would impose significantly more stringent permitting, recordkeeping and reporting requirements on Ultra.

We will monitor the suit and keep you posted.

Earth Justice Files Citizen Petition Under TSCA

Earth Justice recently filed a citizen suit petition under TSCA asking the USEPA to regulate the chemical substances and mixtures used for oil and gas exploration and production ("E&P").  They seek to have manufacturers and processors of E&P chemicals conduct testing of all chemical substances and mixtures, submit existing health and safety studies and identify chemicals and mixtures used during E&P.  The petition can be found here.

Initial Great Lakes Restoration Investments Handed Out in Ohio

USEPA announced today the first grants awarded under the Great Lakes Restoration Initiative. . . with $4.5 million awarded to Ohio organizations, agencies and universities.  Today's press release can be found here.  Grant recipients include:

· $1,348,595, University of Toledo (Maumee River Area of Concern—Wolf Creek passive treatment wetland).

· $498,612, Wayne State University (Toledo Harbor invasive species early warning system pilot project).

· $242,837, Ohio Environmental Council (Lake Erie Lakewide Management Plan public engagement).

· $331,669, The Nature Conservancy (Phragmites control on western Lake Erie shoreline).

· $151,000, Delta Institute (Cleveland and Toledo e-waste reduction).

· $425,160, Cleveland-Cuyahoga County Port Authority (Cuyahoga River Area of Concern debris management system).

· $369,472, Cleveland Metroparks (Invasive plant control in Cuyahoga River Basin).

· $294,693, Cleveland Metroparks (West Creek ecosystem restoration).

· $546,417, Ohio EPA (Lake Erie nutrient reduction).

· $177,688, Ohio EPA (Fish deformity analysis).

· $122,429, Ohio EPA (Ohio Lake Erie Phosphorus Task Force).


Shale Hit Piece Illustrates Classic Problems of Anonymous Sourcing

So says the NYT public editor about yet another NYT article on the dangers associated with U.S. shale production:  "In the article and in the document viewer, readers never learn the actual positions or identities of the e-mail senders, who are characterized using descriptors like 'official,' 'energy analyst,' 'federal analyst,' 'senior adviser' or 'senior official.' Nowhere is an e-mailer characterized as an 'intern.'"  (Emphasis is ours.)  What's happened to the paper of record?

Fort Worth Air Study

We've reported previously on studies of air emissions from natural gas sites in the Fort Worth, TX, area (see here, e.g.).The city of Fort Worth recently released the final report on a study focused on air pollution issues surrounding natural gas exploration in the area, finding:

While Fort Worth residents are exposed to these and other pollutants released from natural gas sites, the measured and estimated air pollution levels did not reach levels that have been observed to cause adverse health effects.  Further, the measured benzene and formaldehyde levels in Fort Worth were not unusually elevated when compared to levels currently measured by TCEQ elsewhere in Texas.

For more, including a copy of the report, see here.

[Update:  The Fort Worth Star-Telegram finds that the study is not credible when it comes to its criticisms of compressor emissions because it relied solely on modeling of what could happen, rather than what actually happens, in the field.  Interesting.]

House Will Consider Bill to Rein in EPA to "Restore Balanced Federal-State Regulatory Partnership"

We all will likely be reading and hearing more about a US House Bill (H.R. 2018) coming before the full House for a vote - the bill purports to "bring the federal water quality permitting process back to center and help ensure a more stable, clear, and equitable national clean water program."  Find a Press Release here that explains in more detail what is being proposed. 

New ASTM Standard Related to Continuing Obligations for Contaminated Properties

ASTM has issued a new standard dealing with Continuing Obligations for contaminated properties -- what to do after a Phase 1 identifies recognized environmental conditions that are not all fully remediated.   More information on the standard can be found at:  www.astm.org/Standards/E2790.htm  The standard is intended to provide procedures to help users satisfy continuing obligations applicable to CERCLA's "innocent landowner", "contiguous property owner" and "bona fide prospective purchaser" protections.

Changes Coming to Hazardous Waste Exemption for Recyclables

USEPA has announced that it will revoke part of a Bush era RCRA hazardous waste exemption for recyclables. If you took advantage of the exemption in the past few years - this change could be a big deal. The 232 page proposed rule is attached and will open for comment once this hits the Federal Register.

NY Preliminary Revised Draft SGEIS

The New York Department of Environmental Conservation (NY DEC) has released a series of documents related to its Preliminary Revised Draft Supplemental Generic Environmental Impact Statement (SGEIS) issued in September 2009.  From the Executive Summary:  "The final SGEIS will apply statewide, except in areas that the Department proposes should be off-limits to surface drilling for natural gas using HVHF technology. As explained below, these areas include the watersheds associated with unfiltered water supplied to the New York City and Syracuse areas pursuant to Filtration Avoidance Determinations issued by the U.S. Environmental Protection Agency ('EPA'), reforestation areas, wildlife management areas, state parks, and 'primary' aquifers as defined by State regulations, and additional setback and buffer areas."

Continue Reading...

NYT: This Must Hurt

This has got to hurt.  After all of the efforts by one of its reporters to mischaracterize hydraulic fracturing as an environmental disaster, the NYT is reporting that New York State's Governor Cuomo plans to lift the state's moratorium on the use of that process to develop its shale resources:  "The Cuomo administration is seeking to lift what has been, in effect, a moratorium on hydraulic fracturing, a controversial technology used to extract natural gas from shale, state environmental regulators said Thursday."


Reason Video: Fracking

With all of the negative media regarding hydraulic fracturing, we thought you might be interested in this video from reason.tv:

BAMM Extension Proposed

U.S. EPA is proposing to extend certain time periods for using best available monitoring methods (BAMM) for Petroleum and Natural Gas Systems under the GHG Mandatory Reporting Rule.  If you are interested, comments are due no later than July 27, 2011.

Navigable Water Guidance - Update

U.S. EPA and the U.S. Army Corps of Engineers have published for comment a new guidance document that they intend to use to identify jurisdictional waters.  See here.  They have extended the public comment period to July 31, 2011.

NYT At It Again?

We noted previously the NYT's attempt to impede domestic drilling through a series of articles on the "environmental dangers" presented by hydraulic fracturing (see here), and the failings of those articles (see here).  Well, having fallen short at its attempted environmental scaremongering, the "Paper of Record" appears to be at it again with a series of articles attacking the economics of shale development in the United States:  "But the gas may not be as easy and cheap to extract from shale formations deep underground as the companies are saying, according to hundreds of industry e-mails and internal documents and an analysis of data from thousands of wells."  See here.

The author appears to have missed the mark yet another time, however, relying on years-old, outdated communications and analyses while ignoring more recent data.  As John Hanger, former Secretary of Pennsylvania's Department of Environmental Protection, states in an excellent take down of this new attack:  "Reader beware. This reporter puts sensationalism ahead of fairness or truth. Pennsylvania's drinking waters are not poisoned with radionuclides, as substantial testing has verified, and the reading public should drink from this journalistic cup with great caution."

For more, see here (Energy in Depth) and here (Forbes.com:  "Most of this argument is absurd on its face.").

WSJ: "The Facts About Fracking"

That's the title to an article in the WSJ seeking to separate fact from myth regarding the claims about hydraulic fracturing:  "Fracking contaminates drinking water. One claim is that fracking creates cracks in rock formations that allow chemicals to leach into sources of fresh water. The problem with this argument is that the average shale formation is thousands of feet underground, while the average drinking well or aquifer is a few hundred feet deep. Separating the two is solid rock. This geological reality explains why EPA administrator Lisa Jackson, a determined enemy of fossil fuels, recently told Congress that there have been no 'proven cases where the fracking process itself has affected water.'"

U.S. EPA HF Study

We have reported previously on the study being conducted by U.S. EPA regarding the claimed impacts of hydraulic fracturing on the environment (see here, for example).  U.S. EPA has settled on seven case studies (past and prospective) in various producing locations around the country, including several in Pennsylvania's Marcellus shale.  From the press release:

Third-Party Environmental Claims Dismissed

The U.S. District Court for the Eastern District of Louisiana recently found, among other things, that plaintiffs lacked standing to bring claims for injunctive relief under the Clean Water Act, CERCLA, and the Endangered Species Act (ESA), relating to the explosion and capsizing of the Deepwater Horizon offshore drilling rig in the Gulf of Mexico.  See In re:  Oil Spill by the Oil Rig "Deepwater Horizon" in the Gulf of Mexico, on April 20, 2010 (MDL No. 2179) (Jun. 16, 2011).  The court reasoned:

Although an injunction need not return the waters to the pre-spill state, it must, however, provide some benefit or reduction in pollution. *** In this case, no such benefit may be achieved by the Court's injunction.  In fact, the injunction at this stage would be useless, as not only is there no ongoing release from the well, but there is also no viable offshore facility from which any release could possibly occur.

Additionally, the court rejected the claim that the violations could be considered "ongoing" for purposes of pursuing the federal environmental citizen suit claims - "First, there is no longer any facility from which a release could occur.  Second, there have been multiple closures of the well, which leaves no reasonable possibility that there will be any release in the future."  Good decision.

You can find more here (including a copy of the order and a brief history).

TX Frac Fluid Disclosure Law

Signed by Texas Gov. Rick Perry, HB 3328 becomes effective September 1, 2011, requiring operators to disclose the chemicals used in their hydraulic fracturing operations.  For a copy of the legislation, and its history, see here.

Interestingly, it relies on the FracFocus registry created by the Ground Water Protection Council and the Interstate Oil and Gas Compact Commission.

AEP v. Conn - No GHG Nuisance Claim

The Supreme Court issued its ruling today in the long-awaited climate change nuisance suit.  The Court concluded that federal common law nuisance claims cannot be brought against utilities for their greenhouse gas emissions.  In an 8-0 decision, the Court ruled that the Clean Air Act and rules authorized by the Act displace the federal common law cause of action and that there is no room for parallel action.  The U.S. Court of Appeals for the Second Circuit had previously ruled that eight states, New York City, and three environmental groups could proceed with lawsuits alleging under federal common law that the companies' carbon dioxide emissions constitute a public nuisance in contributing to global warming.  (Connecticut v. American Electric Power Co., 582 F.3d 309, 69 ERC 1385 (2d Cir. 2009)).  This Supreme Court decision overturns that ruling.

Comment Deadline Extended

U.S. EPA has extended the time period for commenting on a draft NPDES general permit for stormwater discharges from construction activities to July 11, 2011.  For more, see here.

U.S. EPA - Hydraulic Fracturing and Diesel

U.S. EPA is developing an Underground Injection Control (UIC) Class II permitting guidance document under the Safe Drinking Water Act for the use of diesel fuels in hydraulic fracturing operations.  For more, including a UIC primer, see here.

NY Sues Over Hydraulic Fracturing Regulations

We reported previously on the threat made by New York State's Attorney General to sue the U.S. Army Corps of Engineers and others over their alleged failure to properly review oil and gas development regulations proposed by the Delaware River Basin Commission (see Bad Feds ...).  The Hill is reporting that New York has made good on that threat:  "New York Attorney General Eric Schneiderman opened a new front Tuesday in battles over controversial natural-gas drilling projects with a lawsuit alleging that federal agencies are shirking environmental review of dangerous development techniques."

Not unexpected.

Kentucky and Indiana Remediation News . . .

Kentucky recently changed its remediation/corrective action statute to formally adopt USEPA Region 3’s “Remedial Screening Levels” as the State’s official screening criteria for real property. The change becomes effective June 8.

Indiana DEM recently issued a new 400 page Remediation Closure Guide in draft form for public comment through mid-June. The Guide encompasses a wide variety of remedial programs. Because Ohio EPA’s new Director (Scott J. Nally) came from IDEM, and Ohio EPA has struggled for years to develop a comprehensive multi-program set of closure/remediation standards, don’t be surprised if this move eventually comes to Ohio. Here’s a link: http://www.in.gov/idem/6683.htm

Texas May Soon Require Public Disclosure of Fracking Chemicals

On Sunday May 29, 2011, the Texas House passed legislation that could require drilling companies to publicly disclose the chemicals they use to crack tight rock formations in their search for natural gas. Governor Rick Perry has not indicated whether he will sign bill or not.

Texas GHG Brief Filed

The State of Texas has filed its initial brief challenging U.S. EPA's endangerment finding that concludes that greenhouse gases (GHGs) pose a danger to human welfare, according to this release by the State Attorney General's office.  "The EPA’s Endangerment Finding concluded that greenhouse-gas emissions contribute to the 'perceived but undefined danger' variously referred to as global warming or climate change. The States’ brief explains that the Endangerment Finding is legally flawed because the EPA 'refused to determine what ‘atmospheric concentrations’ of GHGs' pose a threat to humans – which is required by the Clean Air Act. When the EPA issues an Endangerment Finding, the Clean Air Act requires the agency to establish clear standards. The States’ brief explains that the EPA made no 'attempt to determine whether reducing GHG emissions will have any impact on climate change.'"

You can find a copy of the brief at the link as well.


The NYT is reporting on the potential for increased smog due to oil and gas operations:  "Thousands of natural gas wells are expected to be drilled in Pennsylvania over the next few years, requiring a fleet of construction equipment, diesel engines and compressor stations. Together, they could be a large new source of smog-forming emissions along the Northeast corridor, much of which still struggles with old air quality standards at a time when U.S. EPA is preparing to make the rules stricter."

PA Air Study Finalized

The Pennsylvania Department of Environmental Protection has released the findings of a third study showing no emissions levels that would be of public concern:  "'The results show there are no emission levels that would be of concern to the health of residents living and working near these operations,' DEP Secretary Mike Krancer said. 'They are consistent with the results of our air monitoring in southwest and northeast Pennsylvania, the other two areas of the state with the most Marcellus drilling.'"  (News Release.)

For a copy of the study, see here.

Ohio: No More POTWs

Ohio EPA and Ohio DNR appear to have reached agreement on a policy regarding the use of POTWs for brine disposal:  "Disposing directly into a surface water body, either directly or via a Publicy Owned Treatment Works (POTW), is not listed as one of these options [for brine disposal found in Ohio Rev. Code Section 1509.22].  Moving forward, ODNR does not envision using its authority to allow for discharges to surface waters either directly or via a POTW."

For a copy of the writing, see here.

Natural Gas 18-Wheelers?

The WSJ has an interesting article on long-haul natural gas trucks.  The costs appear prohibitive at the moment:  "United Parcel Service Inc., which runs one of the country's biggest truck fleets, pays about $95,000 for an average long-haul "tractor"—the front part of the 18-wheeler, housing the engine and driver. It recently ordered 48 natural-gas versions at a cost of $195,000 apiece—about double the cost of a diesel model, said Mike Britt, UPS's director of engineering and maintenance."  Still, very interesting.

You Don't See This Often

We've frequently noted the articles in the media on hydraulic fracturing.  The NYT had one on May 7th (mis)stating:  "But the practice [i.e., hydraulic fracturing] also pours millions of gallons of dangerous chemicals into the ground and into wastewater treatment systems, which in some cases cannot remove all the potential toxins. There are also numerous documented cases in which fracking fluids leaked into aquifers and contaminated drinking water."  (From Google cache; emphasis is ours).  

What you don't see often is the following:

Correction: May 17, 2011

An article on May 7 about the Obama administration’s appointment of a panel of experts to find ways to make hydraulic fracturing safer misstated the prevalence of cases in which fluids from the gas drilling process have been proven to have contaminated drinking water. There are few documented cases, not numerous ones, although federal and state investigations into reports of such incidents are continuing.

And even that isn't necessarily correct (what documented cases?) ...  Still, the NYT should be commended for trying.

Remember - It's Not Everyone

We've mentioned recently a number of attacks on domestic production, and wanted to note that it's not everyone.  Here is an article from the Tucson Citizen commenting on the recent Duke University study, for example:  "Upon further reading [], 'The authors admit they have no baseline data at all, which makes it impossible to characterize the state of those water wells prior to recent development.' So we don’t know if nearby drilling caused 'contamination' or if the presence of methane there is a natural phenomenon. The headline does not match the story."

New Climate Lawsuits

The NYT is reporting on new climate lawsuits brought, in the main, by teenagers against various federal and state agencies claiming that they haven't done enough to protect earth's atmosphere for future generations.  "Most of the individual plaintiffs in the suit, filed in United States District Court in San Francisco, are teenagers, a decision apparently made to underscore the intergenerational nature of the public trust that the earth’s atmosphere represents. More novel, however, is the suit’s reliance on the public trust doctrine, which dates to Roman times."

Navigable Water Guidance

U.S. EPA and the Army Corps of Engineers (Corps) have published for comment a guidance document that describes how the agencies intend to identify waters protected by the Clean Water Act and implement the Supreme Court's decisions in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (531 U.S. 159 (2001)) and Rapanos v. United States (547 U.S. 715 (2006)).  You can find the guidance document, and supporting documents, here (Docket ID No. EPA-HQ-OW-2011-0409).

Comments are due July 1, 2011.

Illinois Oil Spill Suit

According to this press release, the Illinois Attorney General has filed suit against independent producer Capco Offshore of Texas, Inc., for a spill of thousands of gallons of oilfield waste, including brine and crude oil, into ditches and farmland in Jasper County, Illinois.  The suit alleges "water pollution and oil spill liability claims for the April 5 overflow of a concrete storage pit at the well site just south of Willow Hill. After a citizen complaint, the Illinois Department of Natural Resources’ Office of Mines and Minerals (IDNR/OMM) and the Illinois Environmental Protection Agency (IEPA) estimated at least 1,000 barrels, or 42,000 gallons, overflowed at the site near the Embarras River."

GHG Reporting

U.S. EPA has extended several deadlines that you may find relevant:

First, EPA has been asked to reconsider the requirement to submit requests to use best available monitoring methods during the 2011 calendar year by April 30, 2011 and pursuant to its authority under CAA section 307(d)(7)(B) consequently is extending the deadline contained in those provisions until July 31, 2011. Second, EPA has also been asked to reconsider the time period during which owners and operators of certain specific sources could automatically use BAMM without having to request approval by the Administrator. As a result of this second request, pursuant to its authority under CAA section 307(d)(7)(B) EPA is also extending the date by which owners and operators of certain specific sources would not be required to request approval by the Administrator for the use of BAMM from June 30, 2011 until September 30, 2011.  (Emphasis is ours.)

Ohio EPA Combines Waste Divisions

On April 21, 2011, Ohio EPA announced that it combined its three waste divisions into two.  The Division of Energency and Remedial Response (DERR), the Division of Solid and Infectious Waste Management (DSIWM) and the Division of Hazardous Waste Managment (DHWM) are being consolidated into: The Division of Environmental Response and Revitalization (DERR) and the Division of Materials and Waste Management (DMWM).  See the attached news release to determine what each new Division will regulate.


The Oklahoman is reporting on a new national registry for frac fluid constituents:  "The searchable site allows visitors to look up the chemicals used on wells in their area, while offering a wealth of information about the process industry officials say has been instrumental in triggering a revolution in oil and gas production."  For the site itself, go here.  Very cool.

New Air Study

A new study has been in the news lately claiming that natural gas likely will contribute more to global warming than burning coal because it is vented to the atmosphere in far larger quantities than previously thought (see, e.g., this article in the NYT).  The problems with the study appear to be numerous, however, including the inappropriate use of "lost-and-unaccounted for" data from Texas and long-range transmission pipeline data from Russia; the misuse of a warming factor 45% higher than the one used, for example, by the UN's Intergovernmental Panel on Climate Change (IPCC); and the use of a 20-year limited time frame to study the effects of methane in the atmosphere rather than the commonly used 100-year time frame.  See here.

Apparently others have noticed the issues - see here (Council on Foreign Relations).

CA GHG Law Put on Hold

The LAT is reporting that a court has delayed implementation of California's greenhouse gas law, finding that the governing agency had failed to properly evaluate alternatives:  "In a 35-page decision, Judge Ernest H. Goldsmith said the Air Resources Board had failed to consider public comments on the proposed measures before adopting the plan, which affects a broad swath of the state's economy. In particular, the judge noted, officials gave short shrift to analyzing a carbon fee, or carbon tax, devoting a 'scant two paragraphs to this important alternative' to a market-based trading system in their December 2008 plan."

Very interesting.

Columbus CNG Station

The Columbus Dispatch is reporting that the city will be constructing a CNG fueling station, to be open to the public by October.  "The city of Columbus is among those helping to change that. The city is building a CNG fueling station at its fuel center on Groves Road and hopes to open it to the public by October. It's part of a plan to add 24 CNG vehicles to the city's fleet this year, with a promise for more vehicles and three more stations over the next seven years."

Natural Gas - The Alternative Energy

The NYT has an interesting article on the likely increased use of natural gas worldwide.  "Still, with the global demand for energy expected to grow by double digits in coming decades, analysts are anticipating a new boom in gas consumption. Given the growing concerns about nuclear power and the constraints on carbon emissions, one bank, Société Générale, called natural gas the fuel of 'no choice.'"

Lesson: The Science Matters

That's the message from the Texas Railroad Commission (RRC) to U.S. EPA, according to this article in the WSJ.  After exonerating Range Resources from claims that its operations had contaminated nearby drinking water wells, one RRC Commissioner observed:  "'This is an example of overreaching at its worst,' said Michael Williams, one of three elected commissioners who oversee oil and gas drilling. The EPA 'has a built-in bias against the fossil fuel energy industry.'" (Emphasis is ours.)

We first mentioned the issue here - U.S. EPA had issued an imminent and substantial endangerment order against Range, claiming that its operations had resulted in natural gas migration into nearby domestic water wells.  Range, already investigating the issue with RRC involvement, contested that finding and demanded proof.  The WSJ article addresses the RRC finding - after a hearing on the matter - that Range's operations were not at fault, and that the gas is likely the result of other methane naturally migrating from a shallower formation - something that has frequently been observed in the area.  U.S. EPA never seriously looked into that possibility.

You can find copies of the order and background materials here.  You can find copies of related deposition transcripts and emails from/between U.S. EPA personnel and environmental consultants/activists here.

Naturally, the WSJ is reporting that U.S. EPA intends to continue to move forward against Range.

[Update:  For a related article in the Houston Chronicle, see here.  "Investigators included geochemical 'fingerprints' of the gas in the water wells, which they said show it didn't come from the Barnett shale formation, where Fort Worth-based Range was drilling, but rather the shallower Strawn gas field, which begins 200 to 400 feet below the surface."]

EPA Extends GHG Reporting Deadline

U.S. EPA has extended the deadline to submit greenhouse gas reporting data to September 30, 2011.  For more, see here.

House Moves to Limit EPA GHG Authority

The NYT is reporting that a House panel has voted to limit U.S. EPA's authority over greenhouse gas emissions:  "Moving on a central tenet of the Republican energy and environment platform, a House committee on Tuesday approved a measure to halt the Environmental Protection Agency’s proposed program to regulate greenhouse gas emissions. Republican leaders promised a floor vote on the bill before the Easter recess."  Several Democrats joined in passing the limitation.

PA Rebuts Radiation Claim

We noted earlier the articles recently published by the NYT regarding shale development, including the claim that it involved the discharge of radioactive wastewater in PA (see here).  Well, you would think they would have waited for the facts - right after those articles came out, the PA Department of Environmental Protection announced the results of in-stream monitoring that was done months earlier:  "DEP Announces Testing for Radioactivity of River Water Downstream of Marcellus Water Treatment Plants Shows Water Is Safe."  (See here.)  More:  "“We deal in facts based on sound science,' said DEP acting Secretary Michael Krancer. 'Here are the facts: all samples were at or below background levels of radioactivity; and all samples showed levels below the federal drinking water standard for Radium 226 and 228.'”

For a more in-depth take down of the NYT articles, see the posts from former PA DEP Secretary, John Hanger (here).

Ohio EPA Proposed Budget 2012-2013

The Ohio Governor's proposed budget was released yesterday, including the proposed two-year budget for Ohio EPA and the Ohio Environmental Review Appeals Commission (ERAC).  The proposed budget outlines the Governor's environmental objectives/priorities as well as provides some clue as to where the Governor wants and does not want to spend money.  Overall, Ohio EPA's funding for 2012 will decrease 11.8% from 2011 numbers, plus an additional 2% decrease for 2013.  Some significant changes include:  97.4% reduction in Air Pollutions Control Administration; 97.3% reduction for RCRA Corrective Action (this is a one year reduction with an increase planned for 2013); 73.3% reduction for scrap tire management; 51.9% reduction for Construction & Demolition Debris; 95.9% reduction in Groundwater Support; and 70.7% reduction in Water Pollution Control Administration.  The proposed budget also discusses the consolidation of Ohio EPA's Hazardous Waste Management, Emergency and Remedial Response and Solid and Infection Waste programs.

It is proposed that ERAC receive a one year, 19.1% increase in its budget, which will likely allow it to buy some technology/equipment to bring its docketing system (currently all hand-written) into the 21st century.

"Personal Injury" Insurance Coverage for CERCLA Clean-up Costs?

Relying on an interpretation of Washington State Law, the federal district court for the eastern district of Washington opens the door for potential coverage of CERCLA clean up costs under the "personal injury" section of a CGL policy.  The decision may be significant because pollution exclusion clauses generally do not apply to personal injury coverage.  The opinion, Newmont U.S.A. Ltd. v. American Home Assurance, Case No. CV-09-0033-JLQ, can be found here.

GHG Reporting: Deadline Extended

U.S. EPA has extended the deadline for reporting greenhouse gas (GHG) emissions from March 31, 2011, to an unspecified date later this summer.  For more, see here.

You Want to be Heard on Regulatory Review?

For those of you who have something to say about USEPA's regulations, here is your chance.  USEPA has given notice that it is accepting comments on designing the plan it will use for periodic review of its regulations.  Comments must be received by March 20, 2011.

New MACT Standards for Boilers

In case you missed it, last week the USEPA issued the new MACT standards for Boilers.  A link to the USEPA announcement can be found here

NY Water Contamination Suit

The Elmira Star-Gazette is reporting that a group of New York families has filed suit claiming that Anschutz Exploration Corp. contaminated their water wells through the company's drilling operations.  "The lawsuit seeks $150 million for each of 10 claims in the suit and another $500 million in punitive damages."  You can't help but like the way the report starts, though:  "A New York City law firm has filed a suit ..."  New York City?  Elmira's a couple hundred miles away ...

Closed-Loop Systems To Be Required in the Basin?

We've reported several times on the rules proposed for drilling in the Delaware River Basin by the Basin's Commission (DRBC) (see here, e.g.).  The Philadelphia Inquirer has focused on one significant point regarding those rules - "The Delaware River Basin Commission has drafted regulations that would ban so-called reserve pits in the environmentally sensitive Delaware watershed. The DRBC's regulations would require closed-loop drilling and off-site disposal of cuttings."

Just thought you might want to know.

House Hearings Start on GHG Regulation

The NYT is reporting on congressional hearings convened by the House Energy and Commerce Committee to address U.S. EPA's regulation of greenhouse gases.  A sample:  "'The E.P.A. and the Obama administration have decided that they want to put the American economy in a straitjacket, costing us millions of jobs and billions of dollars a year,' Representative Joe L. Barton, Republican of Texas, said in his opening remarks. 'They couldn’t get it through the legislative process, so they’ve tried to do it by a regulatory approach. It’s not going to work.'”

Of course, the opening remarks of U.S. EPA's Administrator were just as strong, suggesting that pending legislation to eliminate that regulatory authority would harm the children:  "The bill appears to be part of a broader effort in this Congress to delay, weaken, or eliminate Clean Air Act protections of the American public. I respectfully ask the members of this Committee to keep in mind that EPA’s implementation of the Clean Air Act saves millions of American children and adults from the debilitating and expensive illnesses that occur when smokestacks and tailpipes release unrestricted amounts of harmful pollution into the air we breathe."  For a copy of those remarks, see here.

The next year or two promise to be interesting ...

Proposed Hydraulic Fracturing Plan Published ... And More

There are a number of interesting updates regarding U.S. EPA's plan to study the use of hydraulic fracturing in E&P activities:

First, the members of the agency's Science Advisory Board (SAB) were announced earlier this month.  See here.  You will note, the group is heavy with academics.

Second, U.S. EPA has published a draft of its plan for review by the agency's Science Advisory Board.  According to the press release, "The scope of the proposed research includes the full lifespan of water in hydraulic fracturing, from acquisition of the water, through the mixing of chemicals and actual fracturing, to the post-fracturing stage, including the management of flowback and produced or used water and its ultimate treatment and disposal."

Continue Reading...

Frac Study Update

The Houston Chronicle is a good source for updates on the frac study contemplated by U.S. EPA.  For example:  "The Environmental Protection Agency is close to launching a broad study on hydraulic fracturing, but the probe doesn’t guarantee that the federal government will step in and regulate the drilling technique, EPA Administrator Lisa Jackson said Wednesday."  The agency expects to have the work plan finished within the next month or two.

Legislation to Curtail GHG Regulation

The NYT is reporting on recent legislative initiatives to curtail U.S. EPA's regulation of greenhouse gases:  "The Inhofe-Upton-Whitfield bill would, its sponsors say, prevent the E.P.A. from enacting rules that should properly be written by Congress, restrict use of the Clean Air Act to address climate change, prevent the administration from enacting a 'backdoor' carbon tax and protect American jobs from foreign competition."  Interesting.

More Frac Complaints from the House

The NYT is reporting on a letter sent by House Democrats alleging that some service companies have illegally used diesel fuel in their frac fluids:  "Oil and gas service companies injected tens of millions of gallons of diesel fuel into onshore wells in more than a dozen states from 2005 to 2009, Congressional investigators have charged. Those injections appear to have violated the Safe Water Drinking Act, the investigators said in a letter to the Environmental Protection Agency on Monday."

For a copy of the letter, see here.  According to industry (in the NYT article):  "Oil and gas companies acknowledged using diesel fuel in their fracking fluids, but they rejected the House Democrats’ assertion that it was illegal. They said that the E.P.A. had never properly developed rules and procedures to regulate the use of diesel in fracking, despite a clear grant of authority from Congress over the issue."

Another PA Air Study

We reported previously here on a study done by Pennsylvania's Department of Environmental Protection finding no air emissions that would be a cause for concern.  WHYY is reporting on another study with similar results:  "The survey observed four Susquehanna County sites from August to October. DEP official Mark Carmon said the study found elevated levels of methane, propane, butane and other gasses in the air, but nothing surpassing the warning levels for 'air-related health issues.'"

For more, including a copy of that study, see here.

Or for another related article, see here.

New TCEQ Air Rules

The Texas Commission on Environmental Quality (TCEQ) has issued tougher air emissions regulations for producers, effective April 1, 2011, for Barnett Shale areas, according to this article in the Houston Chronicle.  "TCEQ commissioners voted Wednesday to beef up air emission limits on toxic chemicals associated with natural gas drilling and required producers to do expanded testing of their drilling sites."

For a copy of the rules and related materials, see here (Rule Project No. 2010-018-106-PR).

Browner to Leave Position as Climate Czar

The NYT is reporting on Carol Browner's imminent departure from her position as the administration's climate czar:  "Carol M. Browner, the White House coordinator for energy and climate change policy, will leave the administration shortly, officials confirmed Monday night. Her departure signals at least a temporary slowing of the ambitious environmental goals of President Obama’s first two years in the face of new Republican strength in Congress."

Natural Gas and "Climate Change"

We've noted before the views of ProPublica on natural gas drilling (see here).  Well, they're at it again in a new article seeking to challenge the environmental benefits of natural gas in terms of greenhouse gas emissions.  It does point out the threat to small producers, however:  "In November the EPA announced new greenhouse gas reporting rules for the oil and gas industry. For the first time under the Clean Air Act, the nation’s guiding air quality law, thousands of small facilities will have to be counted in the pollution reporting inventory, a change that might also lead to higher measurements."  After they're counted, can regulation be far away?

Congress and the Oil Spill Commission

The report recently issued by the presidential commission appointed to investigate last year's oil spill in the Gulf of Mexico may find rough seas ahead, according to this article in the NYT.  For example:  "'No, that's a bad idea,' Hastings [Chair of the House Natural Resources Committee] said of the suggestion to raise fees on industry to pay for more oversight. 'Listen, the amount of revenue that's coming in from the [outer continental shelf] far exceeds what it costs to regulate that industry. It seems to me that the easiest place if there's going to be more costs -- and I acknowledged there could be more costs involved -- it should come out of existing revenues that are generated with the OCS leasing right now.'"

DRBC Draft Rules

The Delaware River Basin Commission (DRBC) has published draft natural gas development regulations (see here).  From the DRBC's Fact Sheet:  "[T]his Article requires that water used for natural gas development projects must come from water sources that have been approved by the Commission for use for natural gas development. ***. A streamlined approval process is provided that encourages the use of existing Commission-approved water sources to minimize the need to construct and operate new water sources."

From a quick look, it appears as if the DRBC is looking to limit development through, among other things, significant bond requirements and permit fees.

Comments are due:  March 16, 2011.

[Update:  Public hearings have been scheduled for middle/late February (moved up).]

Candid Talk ...

The Dispatch is reporting that Governor Kasich is meeting with Ohio EPA to set forth his vision for the next four years:  "The 1,200 people who work at the Ohio Environmental Protection Agency don't have to wonder what Gov. John Kasich has planned for them. He and newly appointed agency Director Scott Nally are going to tell them this morning during a meeting at the Vern Riffe Center."

Not unusual, but still interesting.

LNG to Increase CA Air Contamination?

The San Diego Union-Tribune has an article discussing concerns over air emissions from LNG expressed by local officials (at least one of whom is a member of the California Air Resources Board):  "County officials say that San Diego Gas & Electric, which operates the region’s natural gas pipelines and distribution lines, is allowing the import of the extra-polluting gas and hasn’t taken steps to minimize its impact."  The issue - it's hotter than other gas transported by the local utility.

U.S. EPA Defers Regulating Biomass Emissions

U.S. EPA has announced that it is going to defer greenhouse gas permitting requirements for biomass-fired and other biogenic sources to promote them as an energy source.  "'We are working to find a way forward that is scientifically sound and manageable for both producers and consumers of biomass energy. In the coming years we will develop a commonsense approach that protects our environment and encourages the use of clean energy,' said EPA Administrator Lisa P. Jackson. 'Renewable, homegrown power sources are essential to our energy future, and an important step to cutting the pollution responsible for climate change.'"  (Emphasis is ours.)  Such as natural gas?

Reminds us of the statement:  "It's good to be the king!"  - Mel Brooks, History of the World, Part I

TX Loses GHG Bid

The Houston Chronicle is reporting that the U.S. Court of Appeals for the District of Columbia has rejected Texas' bid to prevent U.S. EPA from regulating greenhouse gases in the state.  "The state had asked the U.S. Circuit Court of Appeals for the District of Columbia to delay the Environmental Protection Agency’s plan to seize control of permits for greenhouse gas emissions from power plants and other large industrial sources in Texas.  But the three-judge panel concluded that Texas officials have not met 'the stringent standards required for a stay' while the court reviews the EPA’s takeover of the state’s permitting authority."

Texas has refused to implement EPA's regulations.

When are Cleaning Products Pesticides?

USEPA issued today revisions to its guidance which describes when cleaning products are considered pesticides under FIFRA.  For example, this guidance would apply to claims related to the cleaning of algae or mold stains.  See here for the revisions.

NYT Recognizes CO2 Use

The NYT has an article recognizing the use of carbon dioxide to recover energy resources:  "Last month, Texas air-quality regulators approved crucial permits for two coal-fired power plants that will capture their carbon dioxide emissions and sell them for use in nearby oil fields. Also in December, a major new pipeline operated by Denbury Resources of Plano began ferrying carbon dioxide from Mississippi to oil fields near Houston."

Better late recognition than never.

Ohio EPA Proposes to Adopt Rules Consistent with Federal Greenhouse Gas Tailoring Rule

Ohio EPA DAPC emailed the following notice of proposed rulemaking:

"Notice is hereby given that the Ohio Environmental Protection Agency, Division of Air Pollution Control (DAPC) is proposing new Ohio Administrative Code (OAC) rules 3745-31-34 and 3745-77-11 to the Joint Committee on Agency Rule Review (JCARR). The intent of these new rules is to adopt rules that are consistent with, and no more stringent than, the Federal Greenhouse Gas Tailoring Rule (75 FR 31514, June 3, 2010). and limit authority to permit greenhouse gases under the federally approved Ohio New Source Review and Title V operating permit regulations to the levels established in the greenhouse gas tailoring rule (75 FR 82536, December 30, 2010 and 75 FR 82254, December 30, 2010 respectively).

"These rules are available on Ohio EPA's Web page for electronic downloading. The URL is: http://www.epa.ohio.gov/dapc/regs/regs.html . Questions regarding accessing the web site should be directed to Arunee Niamlarb at 614-728-1342; other questions or comments about these rules should be directed to Mike Ahern at Ohio EPA, (614) 644-3631, mike.ahern@epa.state.oh.us or mailed to Mike Ahern, Ohio EPA, Division Air Pollution Control, Lazarus Government Center, P.O. Box 1049, Columbus, Ohio 43216-1049."

Continue Reading...

USEPA Issues Final Testing Rule on 19 Chemicals

USEPA issued a final rule ordering manufacturers and importers of 19 chemicals used to make a wide range of products to conduct laboratory studies to provide basic health and environmental effects information about those chemicals.  Manufacturers of the chemicals would have to submit study results from their research to USEPA by March 2012.

By February 7, 2011, manufacturers must state their intent to test the chemical(s) they produce or submit an exemption application.

If manufacturers of the 19 chemicals fail comply with the regulation, other manufacturers—such as those that produce the chemicals as byproducts of their manufacturing process, as impurities in other chemicals, or that process the chemicals— could be required to provide the data. However, at this time the regulations do not extend to entities other than those manufacturing the 19 chemicals.  There will be a later Federal Register notice specifying the chemicals and tests needed if none of the traditional manufacturers notify the agency of its intent to conduct the required tests.

Continue Reading...

New OEPA and ODNR Directors

The Columbus Dispatch is reporting that Governor-elect Kasich has named the new Directors of Ohio EPA and the Ohio Department of Natural Resources:  "Gov.-elect John Kasich today picked Indiana native Scott Nally to run the Ohio Environmental Protection Agency and former American Electric Power executive David Mustine as head of the Ohio Department of Natural Resources."

For more, see this article from the WSJ:  "Kasich said he expected former business executive David Mustine to play a key role in exploring how Ohio would be impacted by the exploration of the Marcellus Shale."

EPA Enforcement Initiatives

U.S. EPA has released its enforcement initiatives for FY 2011-2013.  Not surprisingly, the oil and gas industry has been targeted:

Some energy extraction activities, such as new techniques for oil and gas extraction and coal mining, pose a risk of pollution of air, surface waters and ground waters if not properly controlled. *** Drilling activities have led to concerns about ground water pollution and the safety of drinking water supplies in various parts of the country. To address these emerging problems, EPA will develop an initiative to assure that energy extraction activities are complying with federal requirements to prevent pollution of our air, water and land. This initiative will be undertaken in particular areas of the country where energy extraction activities are concentrated, and the focus and nature of our enforcement activities will vary with the type of activity and pollution problem presented

Happy New Year!

EPA Frac Study: Update

U.S. EPA has announced that it will be holding four workshops in February and March, 2011, to discuss a number of topics related to its Hydraulic Fracturing Study, including well construction and operation and water resource management.  It is currently soliciting subject-matter experts to participate as presenters and provide technical knowledge during the discussions.  Applications to serve as an expert will be taken until January 3, 2011, at http://hfworkshop.cadmusweb.com.

CA Carbon Trading Program

The LAT is reporting that California regulators at the Air Resources Board have adopted the country's first carbon trading program:  "'This is an historic venture,' said Mary Nichols, chairwoman of the California Air Resources Board, as the panel voted 9 to 1 to approve some 3,000 pages of regulations and supporting documents, crafted over three years of intense negotiations with businesses and public interest groups."

Concerns over the economic impact of the regulations appear to have been discounted.  In the very next paragraph of the article, Ms. Nichols states:  "'[M]ost political people said we should do as little as possible as slowly as possible.' Instead, she said, 'we are being cautious and careful, but in the context of a very bold effort.'"

NYS Moratorium - Vetoed

The NYT is reporting that New York Governor David Paterson has vetoed the proposed legislative moratorium on the use of hydraulic fracturing to develop the state's mineral resources.  But the article goes on:  "Instead, he [i.e., Gov. Paterson] issued an executive order instituting a longer moratorium that extended until July 1, 2011, but that more narrowly defined the types of drilling to be restricted."  A copy of the Executive Order can be found here once it is posted (it has not been at the time of this writing).

Whether producers will exercise force majeure provisions in their leases remains an open question.

EPA Grandstanding

We've reported frequently on the efforts by U.S. EPA to inject itself (yes, pun intended) into the hydraulic fracturing debate.  Now the NYT is reporting that the Regional Director for EPA Region 6 has issued an order to a Texas producer to provide water supplies to residents whose water wells have been impacted by methane and benzene (see here).  To do so, however, EPA has ignored the work of the Texas Railroad Commission, which has stated that EPA's actions are premature:  "Texas officials accused EPA of grandstanding and making 'false claims' about its actions. 'If this is another EPA action designed to reach predetermined conclusions and to generate headlines rather than conduct a successful environmental investigation, then the public is poorly served,' TRC member Elizabeth Ames Jones said. 'The commission will not deny due process to the parties involved in spite of the false claims made against our investigative actions by the EPA staff.'"  (Emphasis is ours.)

Supreme Court Emissions Case

The Supreme Court has agreed to hear an appeal challenging the ability of a plaintiff to claim that utility carbon dioxide emissions are creating a public nuisance by contributing to global warming, according to this article in the NYT.  "It is the first public-nuisance suit related to climate change to reach the Supreme Court. Lower courts have generally declined to allow such suits to proceed because it would put judges in the position of deciding how much carbon dioxide was too much."

NY Moratorium Goes to Governor

A moratorium on new drilling permits relying on hydraulic fracturing to stimulate the well has passed the NY State Assembly and awaits Governor Paterson's signature, according to this article in the NYT.  "The State Assembly voted 93 to 43 on Monday night to block new permits for the drilling practice, known as hydraulic fracturing, until May 15. The purpose would be to give the state more time to address safety and environmental worries, especially concerns that the drilling could contaminate groundwater supplies."

GHG Reporting Rule Finalized

U.S. EPA has issued a final rule requiring the reporting of certain greenhouse gas emissions from the natural gas industry.  From its press release:  "Beginning in 2011, petroleum and natural gas facilities that emit more than 25,000 metric tons of carbon dioxide equivalent a year are required to monitor and report all greenhouse gas emissions to EPA. Data collection for petroleum and natural gas sources will begin January 1, 2011, with first annual reports due to EPA March 31, 2012."

Note that the definition of "facility" may not be what you think.  From the rule:  "[A]s proposed in April 2010, the definition of an onshore petroleum and natural gas production facility for this subpart is all petroleum or natural gas equipment associated with all petroleum or natural gas production wells and CO 2 EOR operations that are under common ownership or common control including leased, rented, and contracted activities by an onshore petroleum and natural gas production owner or operator and that are located in a single hydrocarbon basin as defined in 40 CFR 98.238. Where a person or entity owns or operates more than one well in a basin, then all onshore petroleum and natural gas production equipment associated with all wells that the person or entity owns or operates in the basin would be considered one facility."  (Emphasis is ours.)

Here is a copy of the pre-publication rule.

A copy of the final, published rule can be found here.  (Bumped.)

Natural Gas Vehicles

Did you know that there are only 110,000 natural gas vehicles in use in the United States?  That's according to an article in the WSJ, which goes on to note:  "Experts say one of the reasons natural-gas vehicles haven't caught on is because the U.S. lacks a widespread network of refueling stations. Indeed, most of the natural-gas vehicles in use today are in government or corporate fleets that have centralized refueling stations."

Very interesting.  (Note:  Subscription required.)

Green Construction Code

The International Code Council (ICC) has made available a public version of a working draft of the International Green Construction Code.  To learn more about the ICC and its Green Construction Code, see here.

CO2 Sequestration Rule Announced

U.S. EPA has finalized a rule governing the sequestration of carbon dioxide, according to this press release.  More specifically:  "EPA finalized a rule that sets requirements for geologic sequestration of carbon dioxide, including the development of a new class of injection well called Class VI, established under EPA’s Underground Injection Control (UIC) Program. The rule requirements are designed to ensure that wells used for geologic sequestration of carbon dioxide are appropriately sited, constructed, tested, monitored, and closed. The UIC Program was established under the authority of the Safe Drinking Water Act."

For more, including a pre-publication copy of the rule, see here.

(Update:  For a copy of the Federal Register version, see here.)

Updated Gulf Report

The WSJ is reporting that chemical dispersants worked better than previously thought in breaking up oil spilled in the Gulf of Mexico:  "The updated [NOAA] report finds that of the estimated 4.9 million barrels released after the Deepwater Horizon off-shore rig exploded and sank last April, roughly 77% either was directly recovered, burned off, skimmed, dispersed or evaporated or dissolved. *** The most significant change from the August report is that government scientists have doubled the amount of oil classified as 'chemically dispersed'— from 8% in August to an estimated 16% now."

An Accurate Headline

From the NYTObama's Enthusiasm for Gas Drilling Raises Eyebrows.  "President Obama's newfound interest in expanded natural gas drilling yesterday surprised many on all sides of the drilling debate, from environmentalists to drillers and even the coal industry."  Indeed.

PA Marcellus Air Study

We've reported several times on the emergence of alleged air contamination issues relating to E&P operations, primarily out of the southwest and U.S. EPA.  Not surprisingly, the claim has come to the Appalachian Basin.  The Pennsylvania Department of Environmental Protection (DEP) has released a report on a short term air quality study conducted near Marcellus Shale natural gas operations in southwestern Pennsylvania.  According to DEP Secretary John Hanger, "The data shows no emission levels that would constitute a concern to the health of residents living near these operations."  (Emphasis is ours.)

For a copy of the report, see here.

National Geographic: A Balanced Article on Hydraulic Fracturing

These days, it's not often that you see an article on hydraulic fracturing that doesn't blame the energy resource industry for the end of the world.  That's why this article from National Geographic was so refreshing (discussing the use of the technology in the Marcellus Shale).  Regarding water issues, for example:  "If shale development continues to grow in the Marcellus, water usage for well fracking could reach 650 million barrels per year in Pennsylvania, New York and West Virginia, concluded a report done earlier this year for the U.S. Department of Energy and state authorities. It sounds like a lot until it’s compared to the other water uses in the three states. It would total less than 0.8 percent of the 85 billion barrels drawn yearly out of watersheds in the three states, said the study by ALL Consulting of Tulsa, Oklahoma. Coal and nuclear power plants, in particular, draw many times more water."

Nice job overall, and highly recommended reading.

SPCC Compliance Dates Extended

U.S. EPA has announced that it is extending the deadline for complying with recent amendments to its Spill Prevention, Control, and Countermeasure (SPCC) Rule to November 10, 2011, for most onshore production facilities.

There was only a month to go!

[Update:  Here's a copy of the federal register notice.  You know, to make it official.  (Bumped.)]


It appears that California may have erred when it calculated pollution levels used to support the state's clean air standards - by 340%.  According to the San Francisco Chronicle:  "The pollution estimate in question was too high - by 340 percent, according to the California Air Resources Board, the state agency charged with researching and adopting air quality standards. The estimate was a key part in the creation of a regulation adopted by the Air Resources Board in 2007, a rule that forces businesses to cut diesel emissions by replacing or making costly upgrades to heavy-duty, diesel-fueled off-road vehicles used in construction and other industries."

Gulf Spill Report

The Houston Chronicle is reporting that a presidential panel has concluded that:  "The Obama administration rejected government scientists' requests to publicly detail its worst predictions about the oil gushing into the Gulf of Mexico and repeatedly underestimated the size of the spill."

You can finds copies of the four reports here.  From Staff Working Paper No. 3:

The federal government's estimates of the amount of oil flowing into and later remaining in the Gulf of Mexico in the aftermath of the Macondo well explosion were the source of significant controversy, which undermined public confidence in the federal government's response to the spill. By initially underestimating the amount of oil flow and then, at the end of the summer, appearing to underestimate the amount of oil remaining in the Gulf, the federal government created the impression that it was either not fully competent to handle the spill or not fully candid with the American people about the scope of the problem.  (Introductory remarks.)

Frac Regulation

As readers of this blog know, hydraulic fracturing is a hot topic across the country.  We thought you might be interested in one pundit's thoughts (from the WSJ):  "Those who value pastoral poverty and bucolic quietude over all this grubby commercialism will just have to adjust, as the fishermen and sportsmen and sun bathers of the Gulf Coast have learned to live with oil drillers (and vice versa)."  (Emphasis is ours.)  Ha!

(Note:  Subscription may be required.)

Changing the Incentives

The LAT is reporting that an advisory group appointed by President Obama is recommending that monies collected through penalties and fines related to the Deepwater Horizon oil spill should be distributed to a Gulf Coast Restoration Council that would include state and federal authorities.  "Under current law, penalties levied against BP and others for violating the Clean Water Act would go into the Oil Spill Liability Trust Fund, to be used in any future oil spills."  Changes the motivations for seeking penalties ...

RCRA Exemption Challenged

Two decades ago, following substantial study, U.S. EPA determined that many oil and gas E&P wastes were exempt from regulation as hazardous wastes under the Resource Conservation and Recovery Act (RCRA).  It concluded instead that these wastes could be better controlled through existing state and federal regulatory programs.  While the subject of perennial complaints by environmental groups, that exemption is now the subject of a petition to U.S. EPA by the Natural Resources Defense Council (NRDC).

From the petition:

[T]he Natural Resources Defense Council, respectfully requests that the EPA promulgate regulations classifying wastes from the exploration, development and production of oil and natural gas as hazardous waste subject to provisions of Subtitle C of RCRA. This request is based on overwhelming evidence that waste from the exploration, development and production of oil and natural gas is hazardous, taking into account its toxicity, corrosivity, and ignitability, that it is released into the environment where it can cause harm, that state regulations are inadequate, and that there are numerous methods available to manage it as hazardous waste.

We will keep you posted as this gets published in the Federal Register and matters develop.

Electric Car Deployment Unlikely to Meet Expectations

The NYT is reporting on a soon-to-be-released report from CERA (IHS Cambridge Energy Research Associates) concluding that plug-in electric vehicles may not be the panacea hoped for by the Obama administration.  One of the reasons that wind power may not be the silver bullet for reducing emissions related to these vehicles:  "Moreover, CERA believes that increasing production from large U.S. shale gas resources will restrain the cost of natural gas-fired generation, putting wind power at a continuing competitive disadvantage unless Congress puts a significant price on carbon emissions from fossil-fuel power plants -- an unlikely scenario as matters stand, Makovich said."

Of course, the article also helpfully explains that all of this can be changed if we would only artificially raise the price of our other energy resources ...

EPA Information Request

U.S. EPA has issued a "voluntary" information request from several service companies asking for data on the chemical composition of their frac fluids.  From EPA's press release:  "EPA has requested the information be provided on a voluntary basis within 30 days, and has asked the companies to respond within seven days to inform the agency whether they will provide all of the information sought. The data being sought by the agency is similar to information that has already been provided separately to Congress by the industry. Therefore, EPA expects the companies to cooperate with these voluntary requests. If not, EPA is prepared to use its authorities to require the information needed to carry out its study."  What authorities?

For more, including a copy of the letter sent by EPA, see here.

No Drifting Cloud of Death

The Miami Herald has a good article on a recent study done by federal scientists on impact of the Gulf oil spill.  "The report is the latest to suggest chemically-dispersed oil suspended near the sea floor did not become the drifting cloud of death some doomsayers had predicted. Instead, currents and oil-eating microbes appear to have steadily dissipated and degraded the crude in the two months since BP capped its well, said Steven Murawski, leader of a team of scientists that produced the report."

Even in California ...

The LAT has an interesting article entitled, "Environmentalists stunned by failures of key measures in Legislature."  Of course, industry is being blamed:  "'California's in trouble,' said the narrator in one [industry] ad. '2.3 million unemployed. A $19-billion deficit. And what are some Sacramento politicians focused on? Grocery bags.'''  It couldn't be that California voters want the legislature to actually focus on something else ...

Pavillion Update

Residents of Pavillion, Wyoming, have been concerned over drinking water contamination for some time, believing that it originates from E&P activities by EnCana Oil and Gas USA.  Recent testing done by U.S. EPA is inconclusive on origin, but recommends that are residents with private water wells find alternate sources of water for drinking and cooking.  From the Star-Tribune:  "The health concern is based on high sodium and sulfates that EPA officials believe are naturally occurring in the groundwater, and on the detection of petroleum compounds that officials believe shouldn't be in the groundwater."

For more on the issue, including a copy of the report, see here (U.S. EPA site).

Another Gulf Rig Fire

The NYT is reporting that another oil rig has caught fire in the Gulf of Mexico.  "'There was no blowout, no explosion, no injuries, no spill,' said Patrick Cassidy, the director of investor relations for Mariner Energy, a relatively small oil and gas company in Houston with 330 employees and about $1 billion in annual revenues."  That is a relief.

TSCA Inventory Update Reporting

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

Proposed Amendments Coming for TSCA Inventory Update Reporting

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"



NY Senate Passes Frac Moratorium

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.

Enbridge Spill

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).

New Texas Air Rules Proposed

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.

New Air Regulations for E&P Operations?

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.

EPA Denies Claims of Flawed Climate Science

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.

EPA Environmental Justice Initiative

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.

EPA Frac Study Update

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.

Biofuel GHG Emissions

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.

A Solar Panel on Every Roof?

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.

Barnett Shale Air Study

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.

More SPCC Regulation on the Horizon?

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).

It's What You Think You Know!

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.

GHG Confidentiality Rule

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.

Ohio EPA - Permit Processing After U.S. District Court <10 Ton/Year Exemption Decision

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.

Proposed Consent Decree Filed on Residual Risk Standards

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.

Final Rule: Mandatory Reporting of Greenhouse Gases

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.

Study: Natural Gas Use to Double

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).

Moratorium Struck Down

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.

Sulfur Dioxide Air Quality Standard

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. 

Coal Combustion Residual Indecision?

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.

EPA Frac Study - Public Meetings

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.).

EPA Reanalyzing Dioxin Toxicity

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.

Are Construction Costs About to Go Up?

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."

Forecast Uncertainties

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.

Ouch! No Tax Credit?

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."

USEPA's GHG Tailoring Rule Issued Final and Appealed the Same Day

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.

New SO2 Standard

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.

USEPA Issues its Draft Toxicological Review of Formaldehyde

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.

NRDC Challenges Ohio's NSR SIP

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.   

Hydraulic Fracturing Legislation

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 ...

TX Report: No High Levels of Contaminants

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.

GHG Tailoring Rule Final

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

Amendments to New Lead Renovation, Repair and Painting Program

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.

PA Marcellus Regulation Planned

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.

Offshore Wind Farm Approved

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!

And Now for Something Completely Different ...

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.)

CCS Testimony

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.

USEPA's Lead Renovation Rule Effective Today

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.  

USEPA Toxic Release Inventory Additions

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.

TSCA Reform Closer Than Ever

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. 

Wind Turbine Grid?

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."

EPA Proposes to Include Production Sources in GHG Reporting Rule

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.)]

New ASTM Standard for Climate Change Financial Disclosures

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. 

"New" Skeptics on Global Warming?

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.

New Offshore Drilling

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).

Limits Proposed for Federal Frac Regulation

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."

Ohio Wind Farm Applications Approved

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.]

EPA Hydraulic Frac Study

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.

Solar to Increase Utility Costs in CA?

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."

WV Reporting Legislation Moves Forward

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.

Wind Power's Challenges

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.

Sage Grouse

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.

EPA Effluent Guidelines

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.

Sen. Rockefeller Introduces GHG Legislation

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.

Mobile Methane Detectors

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.

Bush Tougher on Polluters than Obama?

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.)

Wind Power - Natural Gas Tension

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.)

House Committee Inquiry

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."

USEPA Seeks to Revise Procedure to Generate Test Data for TSCA

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. 

Endocrine Disrupting Chemicals in Drinking Water?

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.

USEPA's Desision on Greenhouse Gas Regulation

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.]

Hybrid Climate Bill?

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.

Climate Coalition Loses Major Members

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.

GHG Suit Filed Against EPA

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).]

State Regulation of Hydraulic Fracturing Works

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.)

NOAA Climate Service

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."

Biodiesel's Need for Tax Credits

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."

CO2 and Secondary Recovery

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.)

Alternative Energy Initiatives

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).

Marcellus Wastewater

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."

Ohio EPA Violated Clean Air Act

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.

PA Rulemaking Proposal - Well Construction

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.)]

SEC's Climate Change Guidance

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. 

PA Wastewater Proposal

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.

Oil Spill

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).

Allegheny National Forest Decision

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.

WV Marcellus Guidance

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.

Senators Look to Block USEPA's Regulation of Carbon

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.

Hydraulic Fracturing Issues

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.)

Wind Project Rejected

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.

Ozone Standards?

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.

Texas Wind Project Shelved for Now

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).

Most Stringent Laws in Green Building Movement

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.

Texas Air Issues

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.)]

PA Brine Coming to OH?

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.

Cincinnati's Environmental Justice Ordinance

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.

Continued TSCA Reforms

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!

Biofuels Not Yet Economic

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.

Environmental Conflicts

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.

NYS Drilling Rules

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).

Eco-Corporate Officers

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."

Rare Earths

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.

Clean Air Act Settlement

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).

E&P Emissions Regulation

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.

CA Geothermal Project Halted

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.

Water Quality Monitoring

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.

Additional Stay for NSR Rule

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.

Baker Hughes - Geothermal?

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.)

The Hydraulic Fracturing Divide

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.

Endangerment Finding

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.]

Air Concerns Remain

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.

Air Concerns Remain

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.

Green Jobs

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.'"

Oversight Hearing on the Federal Toxic Substances Control Act

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.

Greater Regulation of PA Drilling Urged

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.

NY Marcellus Debate

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."

Additional PA Regulation

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]."

E&P Operations - Air Pollution

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.

Green Jobs and the Stimulus

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.

PA Wastewater Treatment Applications Up

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.

Another Climate Change Disclosure Settlement

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.



Deepwater Turbines

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

SPCC Rule - Final Amendments (2009)

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.

Continue Reading...

EPA Announces More Stringent Emissions Limits for Sulfur Dioxide

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

Are you a fan of Brown Pelicans?

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.

Oil Spill Rule Final Amendments Announced

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.]

Amendments to Safe Drinking Water And Federal Water Pollution Control Act

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.

E&P Operations Challenged in NY

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.

Senate Committee Approves Climate Bill

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.

New Carbon Nanotube Study

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.  

Challenges to Energy Development Continue

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.

Clean Energy Jobs and American Power Act to be Revised

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.

Smart Thermostats?

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.

Funding Approved for US EPA Study of Hydraulic Fracturing

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.]

A New Focus for Carbon Capture and Storage

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.

Stormwater Rule Survey

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.

PSD and Title V Greenhouse Gas Tailoring Rule

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?

Senate Climate Hearings

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.

Senate Climate Legislation

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.

EPA Imposes SPCC Fine

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.

House Natural Gas Caucus

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.

Natural Gas Vehicles

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.

5th Circuit - Greenhouse Gas Case Moves Forward

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.

Clean Water Act - Stepped Up Enforcement

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.

BioFuels Investment

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.)

Natural Gas Development Targeted for Emissions

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.

Peak Oil Demand in Industrialized Nations

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.

Commercial Scale CCS To Be Funded

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.

Nanomaterials in the EU

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.

OSHA Proposed Rule to Adopt Globally Harmonized Hazard Communication Standard

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.

TX Carbon Dioxide Lawsuit

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.

NY DEC Releases Draft SGEIS For Marcellus Shale Development

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.)]

Senate Climate Bill

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.)]

Executive Order Signed Requiring Federal Leadership in Environmental, Energy and Economic Performance

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 TSCA Revisions Coming

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.
Continue Reading...

USEPA Nanomaterials Research Strategy

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.

Air Quality Issues

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.

Frac Fluid Disclosure Becoming a Reality?

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."

USEPA Looking to Make Big Changes to Pesticides Program

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.

Houston Ship Channel Spill

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.

US EPA Finalizes GHG Reporting Rule for Large Sources

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.]

Power Companies Can Be Sued Over Carbon Dioxide Emissions

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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Mountaineer Power Plant

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.

Natural Gas Lobbying Efforts

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."

PA Wind Farm Funding

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.

European Chemicals Agency Proposes Three Chemicals for Harmonized Labeling

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.

European Chemicals Agency Proposes 15 Substances of Very High Concern

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.


CCS Rulemaking Comment Request

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.

New Duke Wind Farm

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.

The Federal Government's Revolving Door Policy

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!

Unilateral Administrative Orders Under CERLCA

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.

Airport Deicing Operations Proposed Rule

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/

Ohio Environmental Review Appeals Commission

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.

German 'Numbyism'

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.

Climate Engineering

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.

Wind Farm Development

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.

EIA Energy Market Report

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.

Shale Gas and Climate Legislation

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."

Waterfront Brownfields Grant Program Legislation

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.

Politics and Money

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.

Federal Brownfield Tax Incentive To Be Made Permanent?

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.


Chemical Facility Anti-Terrorism Act of 2009 (HR 2868)

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

UN Approves New Generation Carbon Offset Project

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.

Financial Responsibility Requirements Coming?

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).

Wind Turbines and Wildlife

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.

Climate Legislation in the Senate

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

Wind Farm Plans Shelved for Now

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.

Senate Climate Legislation Hearings

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.]

Ohio EPA Announces Environmental Insurance Program

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.

Incandescent Bulbs Making Comeback?

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.

U.S. Supreme Court - Environmental Cases

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?

Chevron Refinery Work Halted

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.

Cincinnati Passes Environmental Justice Ordinance

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.

California GHG Waiver Request Granted

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.

Nitrogen Dioxide One-Hour Standard Proposed

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.

GHG Endangerment Comments Filed

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.)]

Solar Energy Development

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.

Supreme Court Rules on Clean Water Act Section 402 and 404 Distinction

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.

Wind Energy and Fossil Fuels

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).

Climate Legislation Passes House

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.

Canadian Oil Sands Campaign

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.

CA Carbon Tax

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.

Geothermal Earthquake Risks?

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."

Climate Legislation Update

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.

CWA Permit Valid

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).

Interesting Nevada Solar Project

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.

SPCC Final Rule - Compliance Dates

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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Conflict of Interest?

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).

API Report on GHG Technology Investment

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.

Possible Climate Legislation Mutiny

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.).