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EPA Amends GHG Reporting Rule to Include Additional Requirements

On September 22, 2010, the United States Environmental Protection Agency ("EPA") amended the Final Mandatory Reporting Greenhouse Gases Rule to include a provision requiring that those subject to the rule provide the following: (1) The  name, address, and percentage ownership of their U.S. parent  company(s); (2) their primary North American Industry Classification System code(s) as well as all additional applicable North American Industry Classification System code(s); and (3) an indication of whether or not any of their reported emissions are from a cogeneration unit.   See http://edocket.access.gpo.gov/2010/pdf/2010-23674.pdf.  The action amends 40 CFR part 98 by adding the data elements mentioned above.  These elements are required to be included as part of the annual Green House Gases reports that facilities and suppliers subject to 40 C.F.R. part 98 are required to submit.   40 C.F.R. part 98 provides the regulatory framework for the Green House Gases Reporting Program, which requires regulated entities to report emissions of carbon dioxide and other green house gases to EPA.  The Green House Gases Reporting Program became effective December 29, 2009 and includes not only entities that emit greenhouse gases, but also suppliers of fuels and industrial gases.   The new reporting elements must be included in the first annual reports submitted to EPA on March 31, 2011 and in all future years.

This article was authored by Chris M. Hunter, Jackson Kelly PLLC. For more information on the author see here.

Climate Change Headlines:

9/18/2010:  Obama administration leaves climate change to Congress, not the courts

Los Angeles Times

http://www.latimes.com/news/nationworld/nation/la-na-climate-obama-20100919,0,121971.story

 

9/18/2010:  UN gives hope to Rwandan communities ravaged by climate change

UN News Centre

http://www.un.org/apps/news/story.asp?NewsID=35986&Cr=unep&Cr1=

 

9/19/2010:  A Threat to California’s Climate Change Progress

New York Times

http://www.nytimes.com/2010/09/20/business/energy-environment/20green.html?_r=1&src=busln

 

9/20/2010:  'Global Adaptation Institute' Endorses Climate Week NYC Focus on Climate Change Adaptation and Resilience

PR Newswire (press release)

http://www.prnewswire.com/news-releases/global-adaptation-institute-endorses-climate-week-nyc-focus-on-climate-change-adaptation-and-resilience-103404574.html

 

9/20/2010:  IDEM top official to EPA: Focus on air pollution, not climate change

Gary Post Tribune

http://www.post-trib.com/news/2726122,easterlyghg0920.article

 

9/21/2010:  What Are the Financial Costs of Climate Change?

Earth & Industry

http://earthandindustry.com/2010/09/what-are-the-financial-costs-of-climate-change/

 

9/21/2010:  10 given Heinz Awards for environmental work

BusinessWeek

http://www.businessweek.com/ap/financialnews/D9ICGJTG1.htm

 

9/23/2010:  Ocean cooling contributed to mid-20th century global warming hiatus

Xinhua

http://news.xinhuanet.com/english2010/sci/2010-09/23/c_13526102.htm

 

9/24/2010:  U.S. makes N.C. State a climate research hub

Charlotte Observer

http://www.charlotteobserver.com/2010/09/24/1714173/us-makes-nc-state-a-climate-research.html

 

9/25/2010:  Californians split on suspending global warming law

USA Today

http://content.usatoday.com/communities/greenhouse/post/2010/09/californians-greenhouse-gas-law-/1

DOE Launches Carbon Capture and Storage Simulation Initiative

- U.S. Secretary of Energy Steven Chu has announced the creation of the Carbon Capture and Storage Simulation Initiative with an investment of up to $40 million from the American Recovery and Reinvestment Act.

The National Energy Technology Laboratory (NETL) and NETL’s Regional University Alliance (Carnegie Mellon University, Penn State University, University of Pittsburgh, Virginia Tech, and West Virginia University) are partnering with Lawrence Berkeley National Lab, Los Alamos National Lab, Pacific Northwest National Lab, and Lawrence Livermore National Lab to develop validated, predictive simulation tools to accelerate the development and deployment of industrial CCS technology.

The initiative will develop:

(1) a comprehensive, integrated suite of validated computational models for accelerating CO2 capture technology development and deployment

(2) a defensible, science-based methodology and tools that can be used to quantify residual risk and long-term liability at CO2 storage sites post-closure.

Using advanced modeling and simulation, researchers will develop science-based methods aimed at lowering the cost of carbon capture while reducing risks associated with its storage. This will build upon the efforts of DOE’s National Risk Assessment Partnership (NRAP). The CCS Simulation Initiative will allow NRAP to accelerate the development of a defensible, science-based methodology for quantifying and minimizing potential risks associated with long-term storage of CO2. 

This article includes publically available information, and was assembled by Rachel Shanteau, Acacia Environmental Group LLC. For more information on the author see here. 

West Virginia Department of Environmental Protection: Field Sampler Certification

The WVDEP has scheduled a meeting at their Kanawha City headquarters for October 1, 2010 at 1:00 PM for a discussion regarding a possible field sampler certification program. The discussion will be led by Dan Arnold, WVDEP Program Manager for the laboratory analytical certification program. Just as certification is required for all laboratories performing analysis relating to WVDEP statutory programs, a sampler certification program could apply also to those collecting the samples for all WVDEP statutory related programs.

 

A discussion regarding the certification of samplers first began within a committee formed by the WVDEP in 1995, formed to discuss certification of laboratories performing analytical work for statutory programs within the purview of the WVDEP. The results of the meetings during 1995 resulted in legislation establishing the laboratory certification program; however, the field sampler certification program was dropped from consideration. Again in February 2003 the WVDEP sponsored another meeting to discuss a sampler certification program. The meeting again failed to gain support for the program and the issue has remained dormant until announcement of this recently scheduled meeting.

 

According to Dan Arnold, the certification of field samplers would assist in removing questions regarding the collection and handling of samples. The program envisioned would provide standardized procedures for sampling in accordance with professional standards that includes documentation of the sample collection.   The goal is to obtain more accurate data being reported by the laboratories and result in better decisions regarding each site. Mr. Arnold pointed out that the adjoining states of Pennsylvania and Virginia are working on some component of a field sampler certification program.

 

If a program for certification would be developed by the WVDEP, a certification would be required for each type of sampling, such as: monitoring wells, surface water, soil, soil gas, air, etc.

 

The issue at hand for those being impacted potentially by this initiative is whether this program provides sufficient benefit to off-set any additional costs to the regulated community. If you believe you will be impacted by this initiative, the time to get involved is October 1.

 

This article was authored by William Chambers, Acacia Environmental Group LLC. For more information on the author see here.

Climate Change Headlines:

9/13/2010:  CBI says businesses need better warning of climate risks

The Guardian

http://www.guardian.co.uk/environment/2010/sep/13/cbi-business-warning-climate-risks

 

9/13/2010:  Can Geoengineering Stop Global Warming?

Discovery News

http://news.discovery.com/tech/can-geoengineering-stop-global-warming.html

 

9/13/2010:  Climate Adaptation Group Wins $10M Start-Up Pledge from NGP Energy Capital Management

PR Newswire (press release)

http://www.prnewswire.com/news-releases/climate-adaptation-group-wins-10m-start-up-pledge-from-ngp-energy-capital-management-102762214.html

 

9/14/2010:  Major climate change talks set for next week in New York

AFP

http://www.google.com/hostednews/afp/article/ALeqM5iPD_kE8rfqIlXb4uZj3Ngw8ffF_Q

 

9/14/2010:  Report: Climate change a factor in world hunger

USA Today

http://content.usatoday.com/communities/greenhouse/post/2010/09/climate-change-affects-world-hunger/1

 

9/15/2010:  TRUenergy, AGL Call for Australian Emissions Trading Plan, Welcome Combet

Bloomberg

http://www.bloomberg.com/news/2010-09-15/agl-ceo-fraser-supports-emissions-trading-plan-only-for-power-generation.html

 

9/16/2010:  UK not prepared for climate change: report

Reuters

http://www.reuters.com/article/idUSTRE68E2OM20100916

 

9/16/2010:  Global warming could cut number of Arctic hurricanes, study finds

The Guardian

http://www.guardian.co.uk/environment/2010/sep/16/global-warming-arctic-hurricanes-oil

 

9/17/2010:  Graft could jeopardize Indonesia's climate deals

Reuters

http://www.reuters.com/article/idUSTRE68G0O020100917

 

9/17/2010:  Europeans Push Global Tax to Fund Poverty-Reduction, Climate Change Causes

CNSNews

http://www.cnsnews.com/news/article/75424

ExxonMobil Post Trial Motions Fail in MTBE Litigation

In a "bell weather trial", a federal jury awarded the City of New York $104 million as a result of anticipated MTBE contamination of an uncompleted water facility in Queens, New York. The verdict was rendered against ExxonMobil, the only defendant who did not settle with the City. The City's claim was based on so many assumptions and predictions about future events, it could be argued that the jury's verdict was based on speculation. Nevertheless, the Court had no trouble denying Exxon's post trial motion which highlighted many of these issues.

 

The facility known as "Station 6" had never been used to distribute water to city residents. In fact, it had yet to be constructed. As a result, the jury was required to predict a number of future events in order to find ExxonMobil liable and determine the amount of damages. These predictions were made in response to interrogatories submitted by the Court to the jury. The jury determined that the City had proven by a preponderance of the evidence that it intended in good faith to begin construction of the Station 6 facility within 15 years and that it intended in good faith to use water from the Station 6 wells within 15 – 20 years as a backup source of drinking water in case of a shortage of supply.

 

The jury then was asked to determine whether MTBE would be in the capture zone of the Station 6 wells when they began operating 15 – 20 years in the future and, if so, what the peak level of MTBE would be and at what point in the future that peak would be attained. Relying on expert testimony from the City's hydrologist who offered a number of different conclusions based on a number of different assumptions, the jury concluded that MTBE would be in the capture zone of the Station 6 wells when the City began to operate those wells, but initially was not able to determine the level of MTBE contamination. After receiving encouragement from the Court, the jury was able to determine that the peak concentration of MTBE would be 10 ppm in the year 2033. The jury found that the City proved by a preponderance of the evidence that ExxonMobil was a cause of the City's injuries as a direct spiller of MTBE blended gasoline and as a manufacturer, refiner, supplier or seller of gasoline containing MTBE (product liability).

 

In its post trial motion, ExxonMobil raised three issues concerning the alleged injury to be suffered by the City. First, it argued that the jury's finding that MTBE would reach a peak of 10 ppm in 2033 lacked an evidentiary basis. The City's hydrology expert was the only one to testify about future concentrations of MTBE and his opinion was that the peak concentration would be reached in 2024 at 35 ppm. Despite the inconsistencies between these two results, the Court concluded that it was within the province of the jury to determine the timing and level of MTBE concentrations based on the testimony of the City's hydrologist.

 

Second, ExxonMobil argued that there was insufficient evidence that the City would be injured by MTBE at the level of 10 ppm. The Court dismissed this argument noting that the City had introduced testimony that 25% of the population can detect MTBE at 3 – 4 ppm and 10% of the population can detect at 1 – 2 ppm.

 

Third, ExxonMobil argued that there was insufficient evidence that the City had good faith intent to begin its construction of Station 6 within 15 years. The Court concluded that the testimony was sufficient to establish that the City intended to build Station 6 as a backup water source.

 

The Court dismissed other discrepancies between the jury's verdict and the testimony. For example, the model used by the City's hydrologist assumed that the Station 6 wells would pump water continuously from 2016 to 2040. ExxonMobil argued that the finding that it could be liable as a direct spiller of gasoline was not supported by the evidence because the jury found that Station 6 would only be used as a backup source, leaving a question whether gasoline from Exxon spill sites could reach the "capture zone" of the wells. Despite this, the Court concluded that the Exxon spill sites were close enough to the capture zone of the Station 6 wells that the jury did not have to rely on the model or its assumptions to find that the wells would be contaminated by the ExxonMobil spills.

 

This article was authored by James R. Snyder, Jackson Kelly PLLC. For more information on the author see here.

Personnel Changes at U.S. EPA Region 3 and WV DEP

Ken Ellison, Director of the Division of Land Restoration of the West Virginia Department of Environmental Protection (WV DEP), announced certain personnel changes at U.S. EPA Region 3 and WV DEP to attendees of the 2010 West Virginia Brownfields Conference held at the Charleston Marriott September 8 and 9, 2010. The announcements were made during the session on State and Federal Regulatory Updates.   

 

With respect to changes at U.S. EPA Region 3, Director Ellison told those attending the conference that on July 6, 2010, Ronald Borsellino became the new Director of U.S. EPA Region 3’s Hazardous Site Cleanup Division. The Hazardous Site Cleanup Division oversees all activities regarding the Oil Pollution Act and Comprehensive Environmental Response, Compensation and Liability Act, commonly known as Superfund and is responsible for determining goals, priorities and objectives for the Superfund and oil programs as well as overseeing the work of federal responsible party cleanups. Among other responsibilities, the division develops strategy to reuse Superfund sites and supports the redevelopment of Brownfields. Director Borsellino is a career U.S. EPA professional. Before coming to U.S. EPA Region 3, he served in U.S. EPA Region 2 as the Acting Director of Planning and Protection, Deputy Director of Policy and Management, and Chief of the Air Programs Branch. Director Borsellino replaces Abraham Ferdas who is now Director of U.S. EPA Region 3’s Land and Chemicals Division. The Land and Chemicals Division’s responsibilities include, among other things, the public’s right-to-know about hazardous chemicals in their community, asbestos emissions, recycling and recovery; pesticides, and lead-based paint. It also regulates underground storage tanks containing petroleum or hazardous substances.

 

With respect to personnel changes at the WV DEP, Director Ellison announced that the Division of Land Restoration would be adding two new supervisory positions. By way of background, Director Ellison explained that the statistics indicated that up to fifty percent of the WV DEP staff would be eligible for retirement over the next couple of years and that Governor Manchin and WV DEP Secretary Huffman had directed the WV DEP to look at succession planning. Director Ellison emphasized that it was “extremely important” that the Division of Land Restoration have a “good working relationship” with the regulated community, licensed remediation specialists, developers, and others involved in remediation and redevelopment of sites that are contaminated or perceived to be contaminated in West Virginia. Director Ellison stated that to provide “customer service” the Division of Land Restoration needed to retain its knowledge and history of the “rhyme and reason” associated with the sites issued certificates of completion under the West Virginia Voluntary Remediation Program. He explained that to retain this institutional knowledge, new employees would need additional supervision. He stated that Don Martin would move to Deputy Director and that two new supervisory positions would be added – one supervisor/manager would be responsible for administrative matters, such as grant funds and leaking underground storage tank accounts, and the other supervisor/manager would be responsible for RCRA and Superfund sites. Finally, Director Ellison reported that both he and Don Martin are planning to retire within the next two years. 

 

This article was authored by Gale Lea Rubrecht, Jackson Kelly PLLC. For more information on the author, see here.

Climate Change Headlines:

9/5/2010:  Bay Area energy leaders discuss the key role green policies play in economic growth

San Jose Mercury News

http://www.mercurynews.com/opinion/ci_15979741?nclick_check=1

 

9/5/2010:  National project to help crops fight climate change

Times of India

http://timesofindia.indiatimes.com/city/goa/National-project-to-help-crops-fight-climate-change/articleshow/6489685.cms

 

9/7/2010:  Climate change, broadband, big issues for new government, says NFF

ABC Online

http://www.abc.net.au/rural/news/content/201009/s3005236.htm

 

9/7/2010:  Monitoring Climate Change in the Ocean's 'Most Studied Spot'

TIME

http://www.time.com/time/health/article/0,8599,2016556,00.html

 

9/7/2010:  Bees stung by 'climate change-linked' early pollination

The Ecologist

http://www.theecologist.org/News/news_round_up/587141/bees_stung_by_climate_changelinked_early_pollination.html

 

9/8/2010:  Global warming bill a lose-lose issue for GOP candidates

Los Angeles Times

http://www.latimes.com/news/local/la-me-0908-gop-global-20100908,0,7403132.story

 

9/8/2010:  Rockefeller Tells W.Va. Not to Deny Global Warming

WVNS-TV

http://www.wvnstv.com/story.cfm?func=viewstory&storyid=85796

 

9/8/2010:  Effect of Warming on River Flow Rates: Model Projections vs. Reality

CO2 Science Magazine

http://www.co2science.org/articles/V13/N36/C1.php

 

9/10/2010:  China calls for int'l cooperation in tackling climate change

Xinhua

http://news.xinhuanet.com/english2010/china/2010-09/10/c_13489591.htm

 

9/10/2010:  Study: Termites help predict impact of climate change

USA Today

http://content.usatoday.com/communities/greenhouse/post/2010/09/termites-predict-climate-change/1

Little Publicized Petition to List Eastern Small-Footed Bat and Northern Long-Eared Bat as Threatened or Endangered Species Could Further Affect Mining Operations

In January 2010, the Center for Biological Diversity petitioned the U.S. Fish & Wildlife Service to list the Eastern Small-Footed Bat and the Northern Long-Eared Bat as threatened or endangered species and to designate critical habitat concurrent with a listing decision. With white-nose syndrome ravaging populations of bats in the East, the U.S. Fish & Wildlife Service reported at a recent seminar on Indiana Bats that it is greatly concerned about the populations of all bats in the East, including the Eastern Small-Footed Bat and the Northern Long-Eared Bat. 

 

Under the Endangered Species Act, the U.S. Fish & Wildlife Service must make an initial finding as to whether the petitions presents substantial scientific information indicating that the petition to action may be warranted. It must make this initial finding to the extent practicable within ninety days after receiving the petition.  

 

A decision to list either bat could pose substantial challenges to new surface mines, which are already charged with ensuring that they do not cause a “take” of Indiana Bats and Virginia Big-Eared Bats, both of which are already listed as endangered species. Both the Eastern Small-Footed and Northern Long-Eared Bats have been found on many mine sites in Central Appalachia and efforts to ensure that tree clearing and mining do not effect a “take” of individual bats could require extensive tracking, extensive protection plans, mitigation and land preservation. 

 

On January 21, 2010, the Center for Biological Diversity also petitioned the U.S. Department of the Interior, the Department of Agriculture and the U.S. Department of Defense “for rulemaking to enact immediate cave closures to protect bat species from white-nose syndrome; to promulgate a rule governing the ‘take’ of endangered bat species; and to designate as significant all caves on federal lands in the continental United States.”

 

This article was authored by Robert G. McLusky, Jackson Kelly PLLC. For more information on the author see here.

Pennsylvania Sets TDS Standard for Oil and Gas Wastewater

The Pennsylvania Department of Environmental Protection (PADEP) recently published rules requiring new or expanding facilities that treat wastewater from the oil and gas industries to meet new water quality standards. The rules, located here, require discharges from centralized wastewater treatment (CWT) facilities built or expanded after August 21, 2010 to meet the following standards: 500mg/L for total dissolved solids (TDS), 250mg/L for chlorides, 10mg/L for barium, and 10mg/L for strontium. Existing CWT facilities will not be affected by the new standards as long as they do not increase the amount of wastewater they process.  

 

The rules require all oil and gas wastewater that is not recycled or injected underground to be treated at a CWT facility that has a NPDES permit to discharge the treated water. Publicly owned treatment works (POTW) may not receive oil and gas wastewater unless it has already been treated by a CWT facility. 

   

Rationale for New Standards

 

    The PADEP anticipates the Marcellus Shale boom to continue for years to come, with up to 50,000 new wells by 2030. Eventually, PADEP estimates that the industry will generate up to 4 million gallons of high-TDS water per day. The agency observed TDS concentrations in the state’s waterways steadily rising over the past few years as more wells were drilled. The new standards represent Pennsylvania’s attempt to balance the benefits of this modern-day gold rush with the finite ability of state waterways to dilute the large loads of the pollutant TDS generated by well drilling, fracturing and production.

 

“Dilution is not treatment. As documented by the rising levels of TDS in the waters of this Commonwealth, dilution in and of itself can no longer be considered an adequate practice to control consistently the effects of wastewaters containing substantial loadings of TDS and its components such as sulfates and chlorides. Treatment technologies such as reverse osmosis and evaporation/crystallization will have to be employed to prevent new or expanded loadings of TDS from consuming all of the remaining assimilative capacity in waterways in this Commonwealth.”

 

Impacts of Rules

 

The estimated cost to treat oil and gas wastewater to achieve the new standards is between 12 and 25 cents per gallon. This means that oil and gas producers in Pennsylvania may pay up to $365 million annually for TDS water treatment. 

 

Other industrial sectors are not affected by the new rules and can continue to discharge wastewater with up to 2,000 mg/L of TDS. Industries outside of oil and gas can also apply for a variance from PADEP to discharge more than 2,000 mg/L of TDS. To get a variance a facility must demonstrate a need to discharge high levels of TDS and prove that the local waterway has capacity to safely assimilate the additional TDS loads and still have less than 500mg/L of TDS. 

 

This article was co-authored by Laura G. Swingle and Aaron S. Heishman, Jackson Kelly PLLC. For more information on the authors see (Swingle) here and (Heishman) can be reached by phone at (304) 340-1048 or by email at asheishman@jacksonkelly.com.