Energy and Environment Monitorwww.eem.jacksonkelly.com

Senator Manchin Responds to Rep. Conyers’ Attack on Coal

Rep. John Conyers (D-Mich.) opened the EPA’s Environmental Justice Conference recently with negative statements directed towards the coal industry and West Virginia in general.  Conyers, the ranking member of the House Judiciary Committee, said that: 

“There’s a big campaign going on about how you clean coal, and we want to examine that as critically and fairly as we can, but here’s the problem: I’ve been to West Virginia, and that’s about all they’ve got there.” 

Conyers also suggested that labor unions could assist coal workers find new, non-coal jobs. 

Conyers’ remarks caught the attention of Sen. Joe Manchin (D-W.Va.), who responded with a letter to Conyers: 

“I am very troubled to hear about your recent negative comments about our beautiful state of West Virginia, and the important role coal plays not only in our state, but in our country.” 

This article was authored by Douglas J. Crouse, Jackson Kelly PLLC. For more information on the author see here. 

http://www.opensecrets.org/news/2011/08/clean-coal-lobbying-aflcio-super-pac.html

Climate Change Headlines:

08/24/2011: Theory or belief?

Muncie Star Press

http://www.thestarpress.com/article/20110824/OPINION03/108240315/Theory-belief-?odyssey=nav%7Chead

 

08/24/2011: Hurricane Irene Panic Stokes Global Warming Hoax

International Business Times

http://www.ibtimes.com/articles/203317/20110824/hurricane-irene.htm

 

08/25/2011: Global Warming Will Lead to Alien Invasions?

Global Warming Will Lead to Alien Invasions?

http://www.mackinac.org/15626

 

08/25/2011: Did CLOUD Just Rain on the Global Warming Parade?

Forbes

http://www.forbes.com/sites/warrenmeyer/2011/08/25/did-cloud-just-rain-on-the-global-warming-parade/

 

08/26/2011: Romney and Global Warming

National Review Online

http://www.nationalreview.com/articles/275599/romney-and-global-warming-katrina-trinko

 

08/26/2011: A climate science critic with a twist

A climate science critic with a twist

http://www.idahostatesman.com/2011/08/26/1773018/a-climate-science-critic-with.html

 

08/27/2011: Sun Causes Climate Change Shock

Telegraph.co.uk (blog)

http://blogs.telegraph.co.uk/news/jamesdelingpole/100102296/sun-causes-climate-change-shock/

 

08/28/2011: Al Gore Compares Climate Change to Civil Rights Fight

Fox News

http://www.foxnews.com/us/2011/08/28/al-gore-compares-climate-change-to-civil-rights-fight/

 

08/28/2011: The Deniers of Global Warming are Winning

The Deniers of Global Warming are Winning

http://blog.seattlepi.com/robertbrown/2011/08/28/the-deniers-of-global-warming-are-winning/

 

08/29/2011: Climate change no longer the number one environmental concern

TheGreenCarWebsite.co.uk (blog)

http://www.thegreencarwebsite.co.uk/blog/index.php/2011/08/30/climate-change-no-longer-the-number-one-environmental-concern/

WV DEP Issues Emergency Regulations Regarding Horizontal Wells

The West Virginia Department of Environmental Protection, Office of Oil and Gas, filed its emergency oil and gas rules relating to drilling horizontal wells as directed by Governor Tomblin in July. The rules will become effective after approval by the Secretary of State and can remain in effect for as long as fifteen months without legislative approval.

 High points of the new regulations for horizontal wells include:

1.         Erosion and Sediment Control Plan. The new rules establish requirements for erosion and sediment control plans to be submitted with the application for a well permit. E&SC plans for well sites (not including roads and pipelines) disturbing more than three acres (“horizontal well sites” for purposes of this summary) must be certified by and constructed according to plans developed by a registered professional engineer and in compliance with Best Management Practices established by the agency. The plans will be considered permit conditions, meaning that stop work orders and monetary penalty assessments can be issued for violations. The plan must be in writing, describe the sequencing of activities, and include certain drawings.

2.         Site Construction Plan.  Applications for horizontal well sites must include a site construction plan certified by a registered professional engineer. Again, the plan will be considered a permit condition and failure to follow it can result in stop work orders and penalty citations for violations. The site construction plan must include a written narrative and maps showing detailed information. Certain activities are required, such as clearing the site of woody materials, cutting and stacking logs, stockpiling topsoil for re-use. A plan view map, inter alia, must ”clearly identify the limit of disturbance” for the project and identify existing structures, roads, water bodies, “and other critical areas within the area that would most likely be affected by the construction.” Several detailed requirements are mandated for the manner in which the site must be constructed.

3.         Water Management Plan.  Applications for horizontal wells must also include an estimate of the volume of water to be used in drilling, fracking or stimulating. If at least 210,000 gallons will be used in any month, a water management plan must be filed with the application. Again, the water management plan will be considered a permit condition. A water management plan can be submitted on a well-by-well or on a watershed basis. The plan must cover volumes of water withdrawals, months when used, planned management and disposition of wastewater from fracking, stimulation and production. A listing of additives (i.e., disclosure of frack fluids) actually used must be submitted as a part of the completion report. As expected, the plan has to identify designated and existing water uses and public intakes within a mile downstream of withdrawal locations; a demonstration that sufficient in-stream flow will be maintained, meaning that the pass-by flow must protect the identified use of the stream immediately downstream of the point of withdrawal. Methods must be identified to “minimize significant adverse impact” to aquatic life – a term not defined in the regulations.

4.        Well Site Safety Plan.  Well site safety plans must be filed with the horizontal well application to address measures to be employed to protect the safety of persons on-site, the general public, and the environment. The plan must cover all aspects of drilling, completion and production activities and provide a 24-hour contact for the well operator and be provided to local emergency personnel seven days before work commences. Once again, the plan becomes a condition of the permit. The plan must cover a host of requirements, including an evacuation plan for personnel and area residents, school identification, and on-site MSDS sheets for all materials and chemicals at the site. Regular safety meetings must be held and documented before and during drilling, completion and work-over operations.

5.         Water Quality and Quantity Protection.  Requirements in the new regulations to protect water quality and quantity both surface and ground water systems during and after drilling and during reclamation include:

• Maintain sufficient pass-by flow in streams;
• Casing, sealing or managing wells to keep fluids or gas from entering ground or surface waters;
• Use best management practices to prevent, to the extent practicable, adding suspended or dissolved solids to streams or runoff outside the permit area;
• Within 48 but no less than 24 hours in advance, notify DEP of water withdrawal locations by latitude and longitude and verify sufficient flow;
• Post signs with specified information at water withdrawal locations and notify DEP and remove signs when finished;
• Maintain records of water used in fracking and production operations, quantity of flowback, produced waters, transportation of water transported, collection and delivery of water transported, and identity of water haulers;
• Dispose of drill cuttings in an approved solid waste facility or manage them on-site in a manner approved by DEP and
• Prudently drill through fresh water zones to minimize disturbance and construct the well and case and cement the well in accordance with standards developed by DEP and in a manner to provide control of the well at all times, prevent migration of gas and fluids into fresh groundwater and coal seams, and prevent pollution of or diminution of fresh groundwater. Specific casing and cementing standards are adopted.

6.         Public Notice Requirement for Municipalities.  A public notice for the first well to be drilled on a drill pad within the boundaries of a municipality must be published in a local newspaper. A permit will not be issued until at least 30 days after public notice. The notice must contain, inter alia, a contact telephone number for more information. While a public notice is required, there is still no statutory or regulatory mechanism providing the public with any right to protest (other than surface owners where the well is drilled and coal owners/operators).

To view the Emergency Rule in its entirety, click here.

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

EPA Causing Job Losses

Policy experts from the National Center for Public Policy Research are urging President Obama to pull the reins on the EPA in order to stimulate the economy. 

Tom Borelli, Ph.D., Director of the National Center’s Free Enterprise Project, stated that “The EPA is infecting the business environment with a plague of new regulations and is compounding its affliction on the economy by denying permits for job creating projects.” 

The effect of new EPA regulations has already been felt by utility companies.  American Electric Power, Duke Energy and Southern Company have recently announced closures of coal-fired power plants as a result of the excessive costs of meeting new EPA standards.  These closures are likely to cause layoffs, increases in electric costs and potential power shortages, thus intensifying negative economic conditions. 

Additionally, states that are dependent upon coal for energy are likely to be harmed by new EPA regulations.  Ohio, for example, is projected by the National Economic Research Associates to lose 53,500 job-years by 2020 as a result of the EPA’s Cross-State Air Rule and the Utility MACT Rule.  The Report also predicts that the average price of electricity in Ohio could increase as much as 12.9 percent by 2016. 

“Obama needs to examine his options to stop EPA’s regulatory madness,” said Deneen Borelli, full-time fellow at the National Center’s Free Enterprise Project.  “Halting the EPA is an economic emergency.  Obama’s homework while on vacation in Martha’s Vineyard should be to find a way to control the EPA that does not require Congressional action.  All Obama needs is the will to do the right thing for the American people.” 

This article was authored by Douglas J. Crouse, Jackson Kelly PLLC. For more information on the author see here.

Climate Change Headlines:

08/10/2011: Old report reignites global warming 'flim-flam'

OneNewsNow

http://www.onenewsnow.com/Culture/Default.aspx?id=1412982

 

08/10/2011: Galileo Movement' Fuels Climate Change Divide in Australia

Scientific American

http://www.scientificamerican.com/article.cfm?id=galileo-movement-fuels-australia-climate-change-divide

 

08/11/2011: Perry: Climate scientists ‘manipulating data’

Seattle Post Intelligencer (blog)

http://blog.seattlepi.com/seattlepolitics/2011/08/17/perry-climate-scientists-manipulating-data/?plckItemsPerPage=10&plckSort=TimeStampDescending&plckFindCommentKey=CommentKey:a3ba5b74-30b6-444e-9335-09501d112620

 

08/11/2011: HuffPo: Before 2011, Weather Never Happened

Stop the ACLU

http://www.stoptheaclu.com/2011/08/18/huffpo-before-2011-weather-never-happened/

 

08/12/2011: IPCC report full of hot air

Washington Times

http://www.washingtontimes.com/news/2011/aug/18/ipcc-report-full-of-hot-air/

 

08/12/2011: Global Warming Fraud: Sinking Polar Bears on Melting Ice a Hoax?

International Business Times

http://www.ibtimes.com/articles/200371/20110819/global-warming-fraud-iconic-polar-bear-on-melting-ice-cap-a-hoax.htm

 

08/13/2011: Global warming runs out of gas

National Post

http://www.nationalpost.com/opinion/columnists/Global+warming+runs/5281757/story.html

 

08/13/2011: Santorum: I’ll Take Up Huntsman’s ‘Offer’ — He’s Crazy To Believe In Global Warming

TPMDC

http://tpmdc.talkingpointsmemo.com/2011/08/santorum-ill-take-up-huntsmans-offer----hes-crazy-to-believe-in-global-warming-video.php

 

08/15/2011: Models show 'global-warming crisis' not really coming

Models show 'global-warming crisis' not really coming

http://www.onenewsnow.com/Culture/Default.aspx?id=1413822

 

08/16/2011: Climate Prostitutes, Charlatans and Comedians

Town Hall

http://townhall.com/columnists/pauldriessen/2011/08/23/climate_prostitutes,_charlatans_and_comedians

West Virginia Judge Overturns Morgantown Horizontal Drilling Ban

Earlier this year, the City of Morgantown, West Virginia adopted an ordinance which prohibited the drilling of deep, horizontal gas wells and hydraulic fracking within one mile outside of the city limits.  Similar bans were under consideration by several other cities within the State.  

Prior to the adoption of the ordinance, Enrout Properties (“Enrout”) leased to Northeast National Energy (“Northeast”) the right to extract Marcellus Shale gas from the property.  Northeast then sought and obtained two drilling permits from the State to extract gas from the Marcellus formation using fracking techniques. 

After Morgantown adopted the ordinance, Northeast and Enrout sued the city seeking to set aside the ordinance.  By order issued August 12, 2011, the Circuit Court of Monongalia County, West Virginia ruled that the ordinance was pre-empted by the comprehensive State regulatory program for gas wells. 

Jackson Kelly represented one of the two plaintiffs in the case. 

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

Proposed Emergency and Hazardous Chemical Inventory Forms (Tier I and Tier II) Changes

On Monday August 8, 2011 the United States Environmental Protection Agency proposed to revise the Emergency and Hazardous Chemical Inventory Forms (Tier I and Tier II) under Section 312 of the Emergency Planning and Community Right-to-Know Act (EPCRA) to add new data elements and revise some existing data elements.  Comments must be received on or before October 7, 2011.  

EPA is proposing the following changes to the Tier I and Tier II forms.   

Facility Identification

Under facility identification EPA is proposing to add new data elements for facility phone number, latitude and longitude and number of full-time employees.  In addition EPA is proposing the addition of facility identification numbers used in the Risk Management Program (Chemical Accident Prevention under section 112(r) of the Clean Air Act and the Toxic Release Inventory (TRI) program under section 313 of EPCRA.  

In addition to the number of full-time employees local emergency responders requested that EPA require facilities such as hotels, colleges, universities and convention centers to report the total number of people that may occupy a building at any given time.  US EPA is not including this in proposed changes but is accepting comments on this data element. 

Name of the Facility’s Parent Company and Owner or Operator of the Facility

States and LEPCs have informed EPA that some facilities have sites in remote locations and do not have operators present at all times.  EPA is proposing to require facilities to provide information on the facility’s parent company and the owner or operator of the facility, such as name, address and phone number, as well as the Dun and Bradstreet number of the facility’s parent company.  EPA is also proposing that the facility owner or operator provide their e-mail address.   

Facility Emergency Coordinator

Currently a facility must inform the LEPC of any changes to the facility emergency coordinator within 30 days after changes have occurred. EPA is proposing that the facility emergency coordinator be identified on the Tier I and Tier II forms, since LEPCs and other emergency response coordinators may need this information during an emergency. 

Tier I and Tier II Information Contacts

Since the information reported under EPCRA section 312 is used by LEPCs to improve emergency response plans, these entities may need to contact the facility regarding information that is reported on the Tier I and Tier II reporting forms.  EPA is proposing to require the name, title, phone number and e-mail address of the person knowledgeable or responsible for completing the information on the Tier I and Tier II forms.

Subject to Emergency Planning Under Section 302 of EPCRA 

LEPCs requested that EPA require facilities to report if they are subject to emergency planning notification under EPCRA section 302 to improve the emergency response plans in their community.  EPA is proposing to add a new data element to indicate if facilities are subject to the emergency planning notification under EPCRA section 302. 

Subject to Chemical Accident Prevention Under Section 112(r) of the Clean Air Act

In addition to the information reported under EPCRA section 312, LEPCs and States use the information reported in RMPs to improve the emergency response plans in each community.  In order to better serve this purpose, EPA is proposing to add a new data element to both the Tier I and Tier II forms to indicate whether the facility is subject to chemical accident prevention under section 112(r) of the CAA. 

Range Codes and Ranges for Reporting Maximum Amount and Average Daily Amount

In order for the States, local agencies and emergency response officials to have information on the maximum amount and average daily amount that are closer to the actual amounts present at the facility, EPA is proposing to narrow the ranges that are in the existing regulations.  The existing and proposed range codes are presented in the table below.  

Range Codes	Current Range (in lbs)	Proposed Range (in lbs)
01	0 – 99	0 – 99
02	100 – 999	100 – 499
03	1,000 – 9,999	500 – 999
04	10,000 – 99,999	1,000 – 4,999
05	100,000 – 999,999	5,000 – 9,999
06	1,000,000 – 9,999,999	10,000 – 24,999
07	10,000,000 – 49,999,999	25,000 – 49,999
08	50,000,000 – 99,999,999	50,000 – 74,999
09	100,000,000 – 499,999,999	75,000 – 99,999
10	500,000,000 – 999,999,999	100,000 – 499,999
11	1 billion – higher than 1 billion	500,000 – 999,999
12	--	1,000,000 – 9,999,999
13	--	10,000,000 – Greater than 10 million

Specific Tier II form proposed revisions

 EPA is proposing to revise some existing data elements on the Tier II federal inventory form.  

Chemical Information

EPA is proposing to modify the chemical information reporting section of the Tier II inventory form to make it more user-friendly for States and local agencies, as well as the emergency response officials. This revision will also benefit facilities by clarifying how to report mixtures on the Tier II form.  In order clarify the reporting of pure chemicals vs. mixtures, the proposed Tier II form has separate entries for mixtures and pure chemicals.  The entry for mixtures includes a separate line for mixture name, amount of mixture present, the ESH(s) name, and amount of EHS(s) present.  Facilities still have the option to report the mixture or the hazardous chemical component.  

Storage Types and Conditions

The Tier II form currently requires facilities to report the codes for types of storage and storage conditions.  In order to make the form more user-friendly and also to have information readily available to emergency response officials in an emergency, EPA proposes that facilities list the types of storage and storage conditions on the Tier II form rather than noting the reporting the codes.   

This article was excerpted from publically available information, and was authored by Joyce Gentry, Acacia Environmental Group LLC.  For more information on the author see here.

Climate Change Headlines:

08/10/2011: BBC neglects facts in global-warming fight

OneNewsNow

http://www.onenewsnow.com/Business/Default.aspx?id=1408466

 

08/10/2011: The Y2K Scare, the Media & Climate Change

Men's News Daily

http://climatechange.mensnewsdaily.com/2011/08/09/the-y2k-scare-the-media-climate-change/

 

08/11/2011: Global warming is melting Al Gore's brain

Daily Caller

http://dailycaller.com/2011/08/10/global-warming-is-melting-al-gores-brain/

 

08/11/2011: Climate-change alarmism: you couldn't make it up

Spiked

http://www.spiked-online.com/index.php/site/article/10978/

 

08/12/2011: Hoax or Truth? Global Warming 'Scam' Debate Rages

International Business Times

http://www.ibtimes.com/articles/196734/20110812/global-warming-climate-change-al-gore-ipcc-scam-lie-false-sham-intergovernmental-panel-for-climate-c.htm

 

08/12/2011: Rick Perry delights climate skeptics by running for president

The Guardian

http://www.guardian.co.uk/environment/2011/aug/12/rick-perry-climate-sceptics-president

 

08/13/2011: Quick Remarks About The Iowa Presidential Debate

Texas GOP Vote

http://texasgopvote.com/iowa-presidential-debate/quick-remarks-about-iowa-presidential-debate-003188

 

08/13/2011: The (polar) bear facts

New York Post

http://www.nypost.com/p/news/opinion/editorials/the_polar_bear_facts_nsd6N9ApKw8IQTwrVgPAGL

 

08/15/2011: Is Al Gore Off His Rocker?

NewsMax.com

http://www.newsmax.com/InsiderReport/Al-Gore-goes-nuts/2011/08/15/id/407267

 

08/16/2011: Climate scientist cautions against reading too much into this summer's extreme …

Washington Post (blog)

http://www.washingtonpost.com/blogs/capital-weather-gang/post/climate-scientist-cautions-against-reading-too-much-into-this-summers-extreme-heat/2011/08/11/gIQAbMSGJJ_blog.html

Groups Attack Proposed Delaware River Basin Fracking Rules

On August 4, 2011, the Delaware Riverkeeper and others sued the Delaware River Basin Commission (“DRBC”) and the Army Corps of Engineers to prohibit the DRBC from finalizing fracking rules without first complying with NEPA.  See Delaware Riverkeeper Network v. Army Corps of Engineers, No. CV11-3780 (E.D. N.Y.).  NEPA prohibits “major federal actions” which could significantly affect the quality of the human environment absent either a finding of no significant effect (a so-called “FONSI”) or an environmental impact statement (“EIS”).  The plaintiffs allege that the DRBC is a “federal agency” for NEPA purposes.  They sued the Corps of Engineers because statutorily it is required to supply federal funds to the DRBC and because it had “approved” the release of the draft rules. 

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

USEPA Continues to Support Carbon Capture and Sequestration

United States Environmental Protection Agency (USEPA) recently proposed its latest rule to continue its support of the deployment of carbon capture and sequestration (CCS) technologies.  CCS is one option available to help mitigate greenhouse gas emissions from fossil fuel combustion.  CCS is a three step process by which the carbon dioxide is captured from the emissions of combustion of fossil fuels, transported via pipeline, and then injected deep underground in appropriate geologic formations for long term storage.  CCS should prevent the carbon dioxide from escaping to the earth’s atmosphere and help mitigate the ecological effects of fossil fuel combustion.  

In its latest proposal (available at http://federalregister.gov/a/2011-19915), USEPA proposes to exclude carbon dioxide streams injected for geologic sequestration in Class VI wells designated for CCS under the Safe Drinking Water Act (SDWA) from the Resource Conservation and Recovery Act (RCRA) hazardous waste regulations.   According to the agency, the proposed management of these carbon dioxide streams does not present a substantial risk to human health or the environment.  Therefore additional regulation under RCRA is unnecessary.  USEPA expects this proposal to reduce barriers to the use of CCS technologies and to reduce the uncertainty associated with identification of such carbon dioxide streams under RCRA subtitle C.  

This proposal is intended to complement other rulemaking including:  the final rules under the Clean Air Act that require reporting by facilities that capture or inject carbon dioxide streams and SDWA regulations for CCS wells.  This proposal is consistent with President Obama’s interagency task force on carbon dioxide sequestration and helps the U.S. support the deployment of clean energy technologies.  Comments to the proposed rule are due on or before October 7, 2011.  More information on the proposed rule can be found at http://www.epa.gov/epawaste/nonhaz/industrial/geosequester/index.htm. 

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