U.S. Army Corps of Engineers and EPA Rule Proposal Attempts to Broaden Federal Water Jurisdiction

On March 25, 2014, the U.S. Environmental Protection Agency and the Army Corps of Engineers jointly released a proposed rule to define the waters that fall under the jurisdiction of the Clean Water Act. While the agencies claim that the proposed rule is intended to clarify the CWA’s reach, the proposed rule would significantly expand the definition of “waters of the United States.” In doing so, the proposed rule would have a major impact on businesses that develop or change land, including oil and gas companies, pipeline operators, developers, and many others. Moreover, projects that already require a permit would likely have to purchase additional mitigation credits, and projects that do not currently require a permit would require one.

Under the proposed rule, all tributaries, ephemeral and intermittent streams, adjacent waters, and adjacent wetlands would be categorically subject to federal oversight, with no additional analysis required. To establish this broad jurisdictional delineation, the proposed rule relies upon general scientific evidence of the connectivity between streams and wetlands with downstream waters and certain parts of Supreme Court jurisprudence.

For more information, please read the full client alert on reedsmith.com

Federal Court Finds Cooperative Federalism Behind USEPA's TMDL for the Chesapeake Bay Watershed

This post was written by David Wagner

On September 13, 2013, the United States District Court for the Middle District of Pennsylvania upheld the U.S. Environmental Protection Agency’s (USEPA) authority to establish a final total maximum daily load (TMDL) for the 64,000 square foot Chesapeake Bay Watershed. A TMDL is an informational tool utilized by USEPA and states to coordinate responses to excessive pollution in order to meet applicable water quality standards. The final Chesapeake Bay Watershed TMDL allocates pollution loads among various sectors including point and non-point sources from agriculture, wastewater, storm water, forests and other runoff in Maryland, Virginia, Delaware, the District of Columbia, New York, Pennsylvania and West Virginia.

In a 99-page decision, the court granted summary judgment to Defendant USEPA and several intervening environmental and public interest groups. The court summarized the three-decade history of efforts to improve the ecological health of the Chesapeake Bay and the public process used by USEPA to determine the TMDL allocations. Despite challenges facing USEPA and the states, the court described the TMDL process as "collaborative, cooperative federalism". It rejected arguments from Plaintiff American Farm Bureau Federation and others that USEPA had surpassed its authority and acted unreasonably to coerce state participation in the TMDL planning process.

New Reporting Requirements under the Clean Water Act

This post was written by Christopher L. Rissetto, Mark A. Mustian

Clean Water Act Discharge Permits to go Electronic

Since the National Pollution Discharge Elimination System (NPDES) permit requirements were first adopted by EPA back in 1972, the program has undergone significant changes. Categorical limitations, storm water permitting, toxics control, and biotoxicity testing are just a few of the many issues that have been implemented or significantly changed over the past 40 years. However, one aspect of the NPDES program has remained remarkably unchanged over this period. For a significant portion of the regulated community, permit compliance is still demonstrated in the same manner as always. The permittee will collect samples of his discharge, analyze the samples for the pollutants of concern, fill out a paper copy of his Discharge Monitoring Report (DMR) - often by hand - and then mail a copy of the report to the permitting authority. As proposed by EPA July 30, this approach will go the way of the typewriter. EPA is proposing to require most of the regulated community to submit monitoring data and other reports electronically to be compiled into a nationwide database.

To read the full entry, please click here.

EPA Updates Oil and Gas Standards for Storage Tanks

This post was written by Edward V. Walsh

On August 5, 2013 the U.S. Environmental Protection Agency (EPA) issued updates to its April 2012 oil and natural gas standards for storage tanks. The updates will phase in emission control deadlines, starting with higher-emitting tanks first. EPA says it is making the changes based on information received after the 2012 standards were issued that shows more storage tanks will come online than the agency originally estimated.

Storage tanks that emit 6 or more tons of volatile organic compounds (VOCs) a year must reduce emissions by 95 percent. The rule establishes two emission control deadlines:

  • tanks that come online after April 12, 2013 are likely to have higher emissions and must control VOC emissions within 60 days or by April 15, 2014, whichever is later; and
  • tanks that came online before April 12, 2013 are likely to have lower emissions and must control VOC emissions by April 15, 2015.

The updated rule also establish an alternative emissions limit that would allow owners/operators to remove controls from tanks if they can demonstrate that the tanks emit less than 4 tons per year of VOC emissions without controls. In addition, EPA says the rule streamlines compliance and monitoring requirements for tanks that have already installed controls. The oil and natural gas industry uses tanks for temporary storage of crude oil, condensate and other liquids, before those liquids are moved to a pipeline, sold or moved for disposal. These storage tanks can be sources of emissions of regulated constituents including ozone-forming VOCs, along with several labeled toxic air pollutants, such as benzene. The rule does not affect the April 2012 standards for capturing natural gas from hydraulically fractured wells.

USEPA Backs Away from Groundwater Contamination Investigation in Pavillion, Wyoming

This post was written by Mark Mustian

In a very low-key release on June 20, 2013, the U.S. Environmental Protection Agency (USEPA) announced that they did not intend to complete their investigation of possible groundwater contamination near Pavillion, Wyoming. As we discussed in late 2011, USEPA had previously issued a draft report which indicated that drinking water in the Pavillion area was likely contaminated by chemicals used in hydraulic fracturing of gas wells. As expected, this report was highly controversial. Following the release of the draft report, USEPA set in motion a follow-up investigation to collect additional information. It was expected that at some point in the future (possibly far in the future), USEPA would issue a final report of their investigation. Instead, USEPA announced that they will not finalize the report, or rely on the conclusions from the draft report. Instead, USEPA will support the Wyoming Department of Environmental Quality (WDEQ) and the Wyoming Oil and Gas Conservation Commission (WOGCC) as these two local agencies prepare a report which is supposed to be issued by September 30, 2014.

USEPA’s decision is expected to be as controversial as the original draft report, with diverging opinions as to the basis for that decision and likely no real answer.

Illinois Governor Signs Fracking Legislation

This post was written by Edward Walsh

Claiming that the legislation will give the state the strongest environmental standards for hydraulic fracturing operations, or “fracking” in the United States, on June 17, Illinois Gov. Pat Quinn signed into law a bill regulating the practice. The Hydraulic Fracturing Regulatory Act introduces the first comprehensive controls on fracking in the state. Among other things, it requires oil and gas drillers to disclose which chemicals they are using both before and after fracking operations and requires water sampling of pre- and post-fracking groundwater with operators liable for any ensuing water pollution. The New Albany shale formation in southern Illinois, believed to contain billions of cubic feet of natural gas, is the focal point of the now settled fracking debate in Illinois.

The law will be implemented by the Illinois Environmental Protection Agency and Department of Natural Resources. Applications for fracking operations are now subject to public comment periods and a public hearing. Once approved, operators must submit both pre- and post-fracking chemical disclosures to the state, in contrast to the practice in other states. Operators may attempt to shield the identity of the chemicals they use from public disclosure under “trade secret” provisions with such claims subject to challenge through the state’s freedom of information law.

In contrast to standard practice, wastewater from operations must be stored in above-ground closed tanks, rather than in pits typically used in the industry. Operators must test groundwater around the fracking area against a predrilling baseline, 6, 18 and 30 months after operations commence. Operators are responsible for groundwater impacts if testing shows that the baseline standard has been exceeded, absent convincing evidence that their fracking operation was not the source of the impact.

The law has the support both industry groups and environmental groups making legal challenges unlikely.

USEPA's Draft Guidance for Diesel Fuel in Hydraulic Fracturing Clarifies Compliance with Safe Drinking Water Act

This post was written by Jennifer Smokelin

Here's another environmental legal development we previewed at the beginning of the year. In 2005, Congress exempted hydraulic fracturing from requirements to obtain an underground injection permit under the Safe Drinking Water Act (SDWA), but still required a permit when diesel fuel is used as a fracturing fluid. On May 4, the U.S. Environmental Protection Agency (USEPA) published draft guidance for SDWA permits issued to oil and gas companies that use diesel fuels during hydraulic fracturing. The draft guidance outlines requirements for diesel fuels used for hydraulic fracturing wells, technical recommendations for permitting these wells, and a description of diesel fuels for USEPA underground injection control permitting. Note that the draft guidance only applies to USEPA permit writers and where USEPA is the permitting authority, The draft guidance includes six categories of fuels (based on CAS abstract numbers) deemed to be considered diesel, while stopping short of an outright ban on the use of the fuel. If these categories of fuels are being used, drillers will need to apply for a specific permit and this could delay drilling. The guidance does not address possible liability for companies that used diesel fuel in the past to fracture rock formations to free trapped natural gas.

USEPA will take public comment on the draft guidance for 60 days upon publication in the Federal Register to allow for stakeholder input before it is finalized.

Slides and Audio from Reed Smith's Teleseminar on Shale Gas

This post was written by David Wagner

With all of the recent attention given to shale gas, we featured the issue in our quarterly Environmental and Energy Teleseminar. Here are the slides and audio from yesterday’s event. In particular, we discussed:

  • Recent developments related to aggregation and U.S. Environmental Protection Agency’s new air emission rules for the oil and gas industry
  • Hydraulic fracturing and chemical disclosure requirements, especially in state jurisdictions
  • Overview of fracking regulations and developments on federal level
  • Pending shale gas legislation in California
  • Overview of international shale plays

Look for our next quarterly teleseminar this summer.

Water Quality OK in USEPA Report on Wells in Dimock, Pennsylvania

This post was written by Nicolle Bagnell and Ariel Nieland

In 2010, according to the Pennsylvania Department of Environmental Protection (DEP), natural gas drilling activities in Dimock, Pennsylvania were believed to be the source of gas migration and water contamination problems allegedly affecting residents' water wells. Since then, the U.S. Environmental Protection Agency (USEPA) has been investigating and now reports that about 31 of the water wells tested so far do not have dangerous levels of contamination. Last week, USEPA published the results of additional tests conducted on approximately 20 water wells in Dimock, which showed that the water underlying those homes contained no elevated levels of contamination. These results supported USEPA's similar findings from last month regarding tests from 11 other residential water wells in the area. USEPA began testing water wells in January of 2012 for 61 homes within a 9-square-mile radius of Dimock and will continue to publish results from those tests as they become available.

USEPA Withdraws Range Resources' Imminent and Substantial Endangerment Order in Fifth Circuit

This post was written by Jennifer Smokelin

As we've discussed on the blog, in late 2010, homeowners who lived near drilling operations of Range Resources in Parker County, Texas, reported problems with their tap water, complaining that it was bubbling and even flammable. On December 7, 2010, the U.S. Environmental Protection Agency (USEPA) issued an emergency order under the Safe Drinking Water Act to the company to take immediate action to protect the homeowners. Range Resources protested the order and the case was hard fought for over a year. In short, Range Resources argued that it was entitled to pre-enforcement review and that USEPA is obligated to show facts supporting the underlying elements of the violation in court to secure injunctive relief and impose civil penalties. A few days ago, USEPA withdrew the order, according to documents filed last week in the U.S. District Court of the Northern District of Texas.

USEPA's surprise withdrawal came less than a week after the unanimous U.S. Supreme Court decision is Sackett v. United States Environmental Protection Agency, et al., (Case 10-1062) (Sackett). In Sackett, the U.S. Supreme Court held that USEPA's order under the Clean Water Act directing a homeowner to remove fill material from an area that USEPA alleged included regulated wetlands was final, ripe, and immediately reviewable. We connected the dots and discussed that, while Sackett was decided under a different statute (the Clean Water Act), there were implications in Sackett to the Range Resources case under the Safe Drinking Water Act. Even though USEPA's documents withdrawing the order in the Range Resources case do not rely on Sackett expressly, one can surmise based on the breadth of the Sackett opinion and the analysis previously provided in this blog that the holding in Sackett had at least something (if not everything) to do with it. Drawing from these recent events, recipients of any USEPA administrative enforcement order have increased incentives to carefully analyze their options about challenging the order prior to enforcement.

Tags: ,

Pennsylvania Issues New General Permit for Oil and Gas Wastewaters

This post was written by Mark Mustian

On March 24, the Pennsylvania Department of Environmental Protection (DEP) revised and reissued General Permit WMGR123, which authorizes the processing and beneficial use of processed liquid wastes generated on oil and gas well sites and associated infrastructure. WMGR123, issued under the authority of the Bureau of Waste Management, replaces the three existing general permits which previously regulated the recycling and reuse of oil and gas wastewaters.

Wastewater generated from well sites that is sent off-site for reuse is regulated as a residual waste, and requires permitting by DEP's Solid Waste Group. Prior to the issuance of the new general permit, there were 3 different general permits applicable to oil and gas operations: WMGR119, WMGR121, and WMGR123. The required permit was based upon the source of the water, the type of treatment, and the use of the recycled water, but the permits were generally very similar. WMGR119 and 121 are now revoked and all off-site activities will be authorized under the new WMGR123 permit. In addition, the on-site reuse of drilling wastes has previously been authorized by the Oil and Gas Program through submittal of Form 5500-PM-OG0071. There is no indication that this procedure has changed, but it is a question that will need to be answered.

The new general permit removes some current restrictions on the recycling of oil and gas wastewaters, and also adds some new requirements. For facilities that plan to recycle and reuse relatively dilute waters, the new permit should be helpful. In particular, for wastewaters with low total dissolved solids (TDS) (i.e., less than 500 mg/l) that are in compliance with standards found in Appendix A of the permit, the operator will not have to manage the waste as a residual waste, and should be able to utilize existing designs for impoundments and handling of the water. This approach would work for water generated at a well site and stored prior to transport to a recycling facility, and for recycled water which has been treated and transported to a well site for reuse. These wastewaters with low TDS will no longer have to be transported as a residual waste.

However, for high TDS wastewater which does not comply with the Appendix A standards, both the generators and users of the recycled water will potentially have new compliance standards. Until the processed oil and gas liquid waste has been transported to a well site and is actually used to develop a well, it must be managed as a residual waste. From the language of the permit, it appears that the requirement to manage the wastewater as a residual waste would apply to both the operator generating the waste and the operator reusing the waste. This will require the operators at both sites to comply with the regulations on storage and transportation found at 25 Pa Code § 299, and in particular the permitting and design requirements for impoundments found in Section 299.141 through 299.145. If either the generator of the waste, or the party beneficially reusing the waste wishes to store the waste prior to either shipment or reuse, they will need to comply with storage requirements that are generally more stringent than the requirements under the oil and gas regulations.

Moreover, the permit holder must comply with several other requirements associated with the general permit. They include: a bonding requirement; sampling requirements to determine whether the wastewaters comply with the Appendix A standards; facility siting requirements; and inspection and records requirements. Overall, the new general permit appears to be designed for permanent recycling facilities that are receiving water from various drill sites, processing it, and then sending it out for reuse at other sites. It does not appear that the general permit will work effectively for individual well sites that want to just transport their water to another well site for reuse.

Sailing across the Yard - Supreme Court Corrects EPA Compliance Reviewability

This post was written by Christopher Rissetto and Jennifer Smokelin

A unanimous U.S. Supreme Court recently held that the U.S. Environmental Protection Agency’s order directing a homeowner to remove fill material from an area that EPA alleged included regulated wetlands was final, ripe, and immediately reviewable under the Administrative Procedure Act (APA). In this blog post, we provide some background, discuss the issue of finality under the APA, and consider some implications of this decision, especially with respect to the Safe Drinking Water Act. 

Mike and Santell Sackett were surprised when the U.S. Environmental Protection Agency (USEPA) and the Army Corps of Engineers interrupted their initial efforts to build a home near an Idaho lake. The Sacketts had begun to place dirt and gravel fill on their newly purchased property, when USEPA issued a Compliance Order. The Order directed the couple to stop construction and restore “wetlands” that were determined to exist on the property, and claimed that their actions in placing fill in a wetland was a violation of the Clean Water Act (CWA), with the possibility of up to $75,000 per day in potential liability. 

The Sacketts unsuccessfully sought review of the USEPA compliance order on the basis that they were not subject to the jurisdiction of the Agency, as the property did not contain regulated wetlands.  However, USEPA argued that the Sacketts had no right to any review of the issue until EPA brought an enforcement proceeding against them. The U.S. District Court agreed and this decision was affirmed by the Ninth Circuit Court of Appeals, which held that there could be no CWA pre-enforcement review. On March 21, 2012, the U.S. Supreme Court ruled 9-0  against USEPA, reversing the lower courts and holding that USEPA’s Compliance Order was a final agency action and therefore could be reviewed under the Administrative Procedure Act (APA), even if the CWA did not expressly provide such a right of appeal. See Sackett v. United States Environmental Protection Agency, et al., Case 10-1062 (Sackett). The holding in Sackett was direct and unequivocal. Yet the concurring opinion by Justice Alito perhaps best expressed the Court’s true concerns, as Judge Alito observed that: “The position taken  . . . 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 [USEPA] employees.”

Continue Reading...

Key Environmental and Safety Provisions in New Pennsylvania Gas Act

This post was written by Jennifer Smokelin

On February 14, 2012, Pennsylvania Governor Corbett signed House Bill 1950 into law as Act 13 of 2012, the Unconventional Gas Well Impact Fee Act (Act 13). This long bill (174 pages) provides for an impact fee, Oil and Gas Act (Title 58) amendments and local ordinance standards. We followed the legislative progression of the Act and, as promised, offer more detailed analysis of the environmental aspects of the Act here. In short, Act 13 provides for new well fees to be assessed on unconventional wells as well as restrictions on local government’s authority to impose burdens on oil and gas activities over and above those required by the state (which some municipalities are preparing to challenge). There are also new environmental and safety provisions for both surface and subsurface activities, some of which will be effective immediately while other will require a rulemaking by the Environmental Quality Board before becoming effective. This article discusses five significant “specifics” of the new environmental and safety provisions imposed by Act 13 and the implications on future permitting and operation of unconventional natural gas development.


Continue Reading...

U.S. Shale Gas in 2012: Top 10 Environmental Legal Issues to Watch

This post was written by David Wagner and Jennifer Smokelin.

This article was published in Rigzone on February 16, 2012.

In his State of the Union address in late January, President Obama offered his support to further develop natural gas as an energy source and stated that “my administration will take every possible action to safely develop this energy.” The president also underscored that this development requires environmental safeguards. He added: “I'm requiring all companies that drill for gas on public lands to disclose the chemicals they use. America will develop this resource without putting the health and safety of our citizens at risk.” In this context, what can we expect from environmental regulators this year? In our outlook for 2012, we identify 10 environmental legal issues to watch.

Continue Reading...

Upcoming in 2012: 10 Environmental and Energy Issues to Watch in the United States

This post was written by Lawrence Demase, Douglas Everette, Robert Frank, Arnold Grant, Todd Maiden, Jennifer Smokelin, Robert Vilter and David Wagner.

As we look forward to 2012, the environmental and energy attorneys at Reed Smith will be on top of a range of issues, and offer the following analysis of what we view, in no particular order, to be 10 key issues likely to affect you and your business in 2012. This post is based on input and analysis from Reed Smith attorneys across the United States. The 10 issues to watch are:

  1. Offshore wind power generation
  2. Renewable energy incentive programs
  3. Hydraulic fracturing regulation
  4. Aggregation
  5. Greenhouse gas litigation
  6. California's cap-and-trade program
  7. California's Green Chemistry program
  8. New mercury standards for coal and oil-burning power plants
  9. Fallout from CERCLA decision in Burlington Northern and Santa Fe Railway Co. v. U.S.
  10. Conflict minerals and disclosure requirements

Please return to blog regularly and participate in our quarterly teleseminar to get updates and analysis on these and many other environmental and energy issues.

Continue Reading...

Slides and Audio from Reed Smith's January 25 Environmental and Energy Law Resource Teleseminar

On Wednesday, Reed Smith held its quarterly environmental and energy law resource teleseminar and the slides and audio are available for download. We were ambitious and discussed 10 key issues likely to affect you and your business in 2012. Our high level discussion was on the following:

  1. Offshore wind power generation
  2. Renewable energy incentive programs
  3. Hydraulic fracturing regulation
  4. Aggregation
  5. Greenhouse gas litigation
  6. California's cap-and-trade program
  7. California's Green Chemistry program
  8. New mercury standards for coal and oil-burning power plants
  9. Fallout from CERCLA decision in Burlington Northern and Santa Fe Railway Co. v. U.S.
  10. Conflict minerals and disclosure requirements

Be sure that we will monitor and analyze these issues and many other environmental and energy issues through the year on our blog and in future teleseminars.

Pennsylvania Seeks Comment on Revised Oil and Gas Erosion Control Permit

This post was written by  Jennifer Smokelin.

On January 20, the Pennsylvania Department of Environmental Protection (DEP) announced it will publish a revised version of its erosion and sediment control general permit for earth disturbance associated with oil and gas activities, along with four other supporting documents, including a draft permit application and a policy explaining the permit requirements. Look for publication in the Pennsylvania Bulletin. In reviewing the draft technical guidance, note that DEP will no longer offer expedited review of permit applications for projects that: have the potential to discharge sediment and runoff to exceptional-value or high-quality watersheds; have well pads that lie within floodplains; or would take place on contaminated lands. This may have a significant effect on some proposed oil and gas projects. The revisions mandate that staff will complete the non-expedited review within 60 days but DEP maintains the right to "stop the [60 day] clock" on a permit application if it has certain administrative or technical problems. The draft technical guidance also changes some documentation necessary when submitting a notice of intent to construct and provide guidance on "best management practices" for (1) erosion and sedimentation control, and (2) restoration after completion of the well.

DEP will accept comments on the documents from January 21 to March 21, 2012. Here's the fine print: written comments may be submitted on the draft technical guidance document for 60 days after publication in the Pennsylvania Bulletin. DEP will accept comments submitted by email; no comments submitted by facsimile will be accepted. Written comments should be submitted to Joseph Adams, DEP Office of Oil and Gas Management, P.O. Box 8765, Harrisburg, PA 17105-8765 or by email to josepadams@pa.gov. Be sure to include a return name and address in each email transmission.

USEPA Draft Report Indicates Likely Ground Water Contamination From Fracking

This post was written by Mark Mustian.

On December 8, U.S. Environmental Protection Agency (USEPA) Region 8 released a draft report detailing the results from an investigation of suspected ground water contamination from natural gas drilling and gas production near Pavillion, Wyoming. After four rounds of sampling, detailed analysis, and an evaluation of various explanations, USEPA concluded that "the data indicates likely impact to ground water that can be explained by hydraulic fracturing." Furthermore, EPA stated that the data suggested "enhanced migration of gas has occurred within groundwater at depths used for domestic water to supply and to domestic wells." In its study, USEPA measured a variety of organic compounds, including benzene, xylenes, gasoline range organics, and diesel range organics. USEPA also measure measured pH, alkalinity and inorganic chemical compounds which were indicative of chemicals used in fracking solutions. The concentrations and depth profiles were such that USEPA was unable to identify an alternative contamination scenario which would explain the findings. The explanation which best fit the facts was that "inorganic and organic constituents associated with hydraulic fracturing have contaminated ground water supply at and below the depth used for domestic water supply."

Though opponents of hydraulic fracturing may seize upon this report as proof of the dangers of shale gas production, it is important to look beyond the surface of this report to understand that the situation in Pavillion, Wyoming is unique, and is not indicative of conditions in other parts of the country. Hydraulic fracturing in the Pavillion gas field occurred within zones of gas which were located within an underground source of drinking water. Hydraulic fracturing occurred at unusually shallow depths in the region, while many domestic water wells are screened unusually deep. USEPA's review of well completion reports showed instances of poor cement bonding on the completed wells. Furthermore, the geology of the region shows little lateral and vertical continuity of hydraulically fractured tight sandstones and no laterally continuous shale units to stop upward vertical migration of constituents of hydraulic fracturing. Finally, there were numerous unlined surface pits in the area used for storage of drilling wastes and produced water. In other words, the conditions in the region were unique and not like the conditions present in other parts of the country where hydraulic fracturing is utilized.

The report is interesting, and in some ways, useful. But it is just one link in a long chain of information which much be collected in order to properly understand the possible impacts of hydraulic fracturing and shale gas production.

USEPA Plan to Study Fracking Criticized by House Republicans on Energy and Environment Panel

This post was written by Luke Liben and Nicolle Bagnell.

This past Thursday, in a hearing titled "Fostering Quality Science at EPA: The Need for Common Sense Reform," Republicans on a U.S. House of Representatives energy and environment panel criticized a recently released U.S. Environmental Protection Agency plan to study any potentially detrimental effects of fracking on drinking water supplies. Perhaps informed by Secretary Krancer's Capitol Hill testimony from the day before, the Republican panel members were quick to point out that roughly 1.2 million wells have already been drilled using this technique, and there has yet to be a documented report of drinking water contamination. As such, these committee members found the EPA's suggested use of government funds to be lacking in common sense. The EPA responded by noting that until studies were done, or evidence of detrimental effects were sought, it was clear that no such evidence could be found. You can find more information here.

Pennsylvania's Department of Environmental Protection Defends States' Ability to Regulate Hydraulic Fracturing

This post was written by Luke Liben and Nicolle Bagnell.

Last week Secretary Michael Krancer of Pennsylvania's Department of Environmental Protection testified before the U.S. House of Representatives' Subcommittee on Water Resources and Environment regarding his stance that federal intervention was unnecessary to aid state regulation of hydraulic fracking processes. Citing the unique geographic and geologic features of each individual state where fracking was taking place, Mr. Krancer stated that a "one-size-fits-all" approach would not be appropriate to ensuring safe and practical fracking procedures. Secretary Krancer also made the Subcommittee aware that despite the roughly 1.2 million wells that have been drilled using this process, there has yet to be a report of drinking water contamination. Mr. Krancer cited this process as yielding both jobs and cheaper energy costs, and reiterated his stance that the individual states were doing a good job with their own regulatory regimes. For more information, click here.

Pennsylvania to Issue Guidance on Wastewater Treatment Regulations

This post was written by Nicolle Bagnell and Ariel Nieland.

On November 3, 2011, the Pennsylvania Department of Environmental Protection ("DEP") announced that it plans to release technical guidance regarding Pennsylvania's updated wastewater treatment regulations, which took effect in August 2010, for new or expanded sources of natural gas wastewater. The guidance will clarify the requirements that facilities accepting shale gas wastewater must meet under the regulations, including effluent standards for total dissolved solids in treated wastewater and radiation monitoring prior to discharge of wastewater that was not fully pre-treated.


USEPA Announces Final Study Plan to Assess Hydraulic Fracturing

This post was written by Jennifer Smokelin.

This week, the U.S. Environmental Protection Agency (USEPA) announced its final hydraulic fracturing study plan and indicated that initial research results are expected by the end of 2012 with a final report in 2014. The overall purpose of the study is to understand the relationship between hydraulic fracturing and drinking water resources. 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, USEPA announced its selection of locations for five retrospective and two prospective case studies.

This study got its start in a 2010 budget report in which the U.S. House of Representatives Appropriation Conference Committee identified the need for a focused study of hydraulic fracturing. Since then, USEPA has held a series of public meetings across the nation to receive input from states, industry, environmental and public health groups, and individual citizens.

USEPA Announces Schedule to Develop Natural Gas Wastewater Standards for Shale Gas and Coal Bed Methane under Clean Water Act

This post was written by Jennifer Smokelin.

The U.S. Environmental Protection Agency (USEPA) announced today that it will propose a rule for wastewater from coal bed methane in 2013 and a proposed rule for shale gas wastewater in 2014. The announcement is part of the effluent guidelines program (Clean Water Act § 304(m)), which sets national standards for industrial wastewater discharges based on best available technologies that are economically achievable.

To ensure that these wastewaters receive proper treatment and can be properly handled by treatment plants, USEPA will gather data, consult with stakeholders, including ongoing consultation with industry, and solicit public comment on a proposed rule for coal bed methane and for shale gas. The time frame for coal bed methane is shorter because USEPA feels it already has a leg up on data necessary for the coal bed rule whereas there is more information to gather with regard to shale gas wastewater.

A Few More Details

Hydraulic fracturing is a method of releasing natural gas from highly impermeable rock formations by injecting large amounts of fracturing fluids at high pressures to create a network of fissures in the rock formations and provide the natural gas a pathway to travel to the well for extraction. Geologic pressure within the shale formation forces these fracturing fluids back to the surface, where they are referred to as “produced water” or shale gas wastewater. Based on a review of available data, USEPA is initiating a rulemaking to control wastewater produced by natural gas extraction from underground shale formations. Under this proposed rulemaking, EPA will consider standards based on demonstrated, economically achievable technologies, for shale gas wastewater that must be met before going to a treatment facility.

Slides and Audio from Reed Smith's Quarterly Environmental and Energy Law Resource Telesiminar

This post was written by David Wagner.

On Wednesday, Reed Smith held its quarterly environmental and energy law resource teleseminar and the slides and audio are available. We discussed current or emerging issues under five general categories. The categories and discussion included:

  • Legislation/Rules — We reviewed the key points and effective dates related to the New Source Performance Standards for the oil and gas industry as well as for utilities and refineries.
  • Litigation — A big environmental litigation issue involving the oil and gas industry is the aggregation of air emissions from diverse sources and we discussed recent challenges to air permits involving this issue. We also discussed the U.S. Supreme Court's recent denial of certiorari in Morrison Enterprises v. Dravo Corporation and the implications on CERCLA cost recovery and contribution claims.
  • Policy and Technology — On this front, our presentation focused on a recent DOE report on the need for additional disclosure, and the policy implications related to the interplay between the U.S. Environmental Protection Agency and Federal Energy Regulatory Commission.
  • International Issues — Here we provided a brief preview of the upcoming COP in South Africa and the fate of the Kyoto Protocol
  • State Issues — On the state level, we focused on California and summarized recent developments regarding the implementation of the California Global Warming Solutions Act (aka AB32) and California's “Green Chemistry” Initiative.

USEPA Finalizes Guidance on Mountain-top Mining

This post was written by Mark Mustian.

Last year we discussed the U.S. Environmental Protection Agency's (USEPA) interim guidance for permitting of mountain-top mining and surface mining projects and the likelihood of revisions based on comments USEPA would receive. More than 60,000 comments later, USEPA revised and issued the Final Appalachian Mining guidance. While not legally binding, the guidance document published yesterday is intended to provide guidance to states in the Appalachian region on permitting issues related to mountain-top mining and surface mining projects. The guidance addresses the current best available science, identifies permitting strategies that comply with the requirements of the Clean Water Act (CWA) and provides assistance to USEPA staff in reviewing and approving permits issued by both the states and by the U.S. Army Corps of Engineers (USACE).

Continue Reading...

U.S. Cities, Including Portland, Oregon, Are Grappling with Cost and Effectiveness of Federal Safe Drinking Water Rule

This post was written by Mark Mustian and David Wagner.

A federal safe drinking water rule that requires public water systems operating open water reservoirs to either cover their reservoirs or install additional treatment on the water discharged from the reservoirs is a significant issue in many cities across the United States. The rule may not be necessary for all public water systems and, as evidenced at a City Council hearing in Portland, Oregon this week, the rule’s necessity along with its big price tag generates a lot of controversy.


On January 5, 2006, the U.S. Environmental Protection Agency (USEPA) promulgated the Long Term 2 Enhanced Surface Water Treatment Rule (LT2 Rule) under its authority granted by the Safe Drinking Water Act. The LT2 Rule is a part of USEPA's efforts to protect the safety of the nation's drinking water following a Cryptosporidium outbreak in Milwaukee, Wisconsin in 1993. The outbreak sickened hundreds of thousands of people and at least 104 deaths were attributed to the event. The LT2 Rule requires public water systems to monitor their raw water supply, and, based upon the data, install additional intake water treatment to ensure specific removal rates of Cryptosporidium and other pathogens. The LT2 rule also requires all water systems that operate open finished water reservoirs to either cover their reservoirs or install additional treatment on the water discharged from the reservoir.

Developments in Portland, Oregon

Many cities utilizing open reservoirs have had significant concerns with implementing the LT2 Rule, including New York, NY, Rochester, NY and Portland, Oregon. In the case of Portland, because of the protected nature and stringent controls on water supply, its water only requires minimal treatment prior to use. Portland has never experienced a Cryptosporidium outbreak, and testing has not detected this pathogen. However, because of the new rule, Portland may be required to install additional controls and cover its reservoirs at a cost estimated at $500 million.

Portland’s City Council held a hearing on May 18 to examine this issue, including a possible rate increase. Reed Smith, on behalf of a local coalition of water users in the Portland area, analyzed some of the key legal issues, including the possibility of obtaining a variance from treating or covering the reservoirs and extending the City's compliance schedule under the LT2 Rule, and testified at the hearing. Coverage can be found here.

It's Official: the Environmental Law Resource is a Top 50 Environmental Law Blog

This post was written by David Wagner.

We’re in – LexisNexis has selected Reed Smith's Environmental Law Resource blog as one of the Top 50 Environmental Law & Climate Change Blogs for 2011. We were recognized as "preeminent thought leaders in the blogosphere" who "offer some of the best writing out there." LexisNexis found that our blog contains "a wealth of information for all segments of the environmental law and climate change industry, and includes timely news items, expert analysis, practice tips, frequent postings and helpful links to other sites and sources."

The 50 honorees were grouped into 10 categories and our blog was one of just 4 blogs honored under the "Litigation" category.

We’re thrilled and certainly appreciate the recognition. Even more importantly, we appreciate your interest in our blog.

Pennsylvania Department of Environmental Protection Calls on Marcellus Shale Drillers to Stop Taking Wastewater to Treatment Plants

This post was written by Nicolle Bagnell and Ariel Nieland.

Last week, Pennsylvania Department of Environmental Protection (DEP) Secretary Michael Krancer gave Marcellus Shale natural gas drilling operators a deadline of May 19 by which to voluntarily stop delivering wastewater produced from natural gas extraction to water treatment facilities. This request from the DEP comes as a result of concerns over increased levels of bromides detected in the Allegheny and Beaver rivers in western Pennsylvania. In August 2010, the prior administration implemented new regulations addressing the potential for contamination from "total dissolved solid" (TDS), a by-product of natural gas extraction. Bromides, which are also present in wastewater containing TDS, can become toxic when combined with chlorine used for water disinfection at treatment facilities. The 2010 TDS regulations imposed more stringent standards on publicly owned treatment works and centralized waste treatment facilities for the treatment of TDS discharges. However, the regulations included a "grandfather clause" allowing for facilities that had historically accepted drilling wastewater to continue to do so, provided that the total amount of wastewater they received did not increase. Out of the 27 "grandfathered" facilities, nearly half have voluntarily ceased accepting Marcellus Shale wastewater in the past year. DEP's request calls upon operators to stop delivering wastewater to the remaining 15 facilities in hopes that concentrations of bromides will "quickly and significantly decrease" as a result.

Notes from the USEPA's Science Advisory Board Panel for the Review of Hydraulic Fracturing Study Plan

This post was written by Nicolle Bagnell and Ariel Nieland.

Reed Smith, represented by Nicolle Bagnell, attended the Science Advisory Board Panel's public meeting on March 7, 2011 in Washington D.C. The purpose of the panel, comprised of a distinguished group of 22 professors and practitioners ranging in expertise from public health, hydrogeology, water quality engineering and environmental justice, is to provide an independent review of the U.S. Environmental Protection Agency's (USEPA's) proposed Hydraulic Fracturing Study Plan for scientific soundness of the draft plan. The panel was selected from nominations made in response to a request in the Federal Register last July. In addition to the Panel's review, USEPA received over 300 sets of public comments on the draft plan. There were also twelve speakers who provided 5-minute commentaries either in person or by phone and roughly 50 members of the public who attended the meetings.

Continue Reading...

Testing for Radioactivity of Pennsylvania River Water Downstream of Marcellus Water Treatment Plants Shows Water Is Safe

This post was written by Jennifer Smokelin.

The Pennsylvania Department of Environmental Protection (DEP) yesterday announced results of in-stream water quality monitoring for radioactive material in seven of the Commonwealth’s rivers. Seven river testing stations – which monitor “raw water” in the river before it enters public water suppliers’ intakes where the water receives further treatment – that were evaluated are Monongahela at Charleroi in Washington County, South Fork Ten Mile Creek in Greene County, Conemaugh in Indiana County, Allegheny at Kennerdell in Venango County, Beaver in Beaver County, Tioga in Tioga County, and the West Branch of the Susquehanna in Lycoming County. All seven samples showed levels at or below the normal naturally occurring background levels of radioactivity.

According to the Associated Press, a review of state records shows most of the gas-drilling wastewater that was treated and discharged by sewage plants in the second half of 2010 found its way into eight (8) waterways, seven of which were tested (above) by DEP. The eighth waterway, Blacklick Creek in southwestern Pennsylvania - is a tributary of the Conemaugh, one of the 7 tested locations. The tests were conducted in November and December of 2010 at stations downstream of wastewater treatment plants that accept flowback and production water from Marcellus Shale drilling. DEP said that these sampling stations were installed last fall specifically to monitor stream quality for potential impacts of Marcellus development.

The Environmental Law Resource Nominated for LexisNexis Top 50 Environmental Law Blogs

This post was written by David Wagner.

It's really nice to be recognized. In fact, we're thrilled that LexisNexis has nominated Reed Smith's Environmental Law Resource as one of the Top 50 Environmental Law & Climate Change Blogs for 2011. Even better, they grouped the 50 nominees into 11 categories and our blog was one of just 7 blogs nominated under the "Litigation" category. LexisNexis selected the nominees based on "timely topics, quality writing, frequent posts and that certain something 'extra' that keeps a web audience coming back for more."

We certainly appreciate your interest in our blog and, if you want to support our nomination, LexisNexis is inviting comments.


Settlement between Pennsylvania and Cabot to Resolve Drinking Water Problems Linked to Gas Migration

This post was written by Nicolle Bagnell and Ariel Nieland.

After announcing in October that Cabot Oil & Gas Corporation would be held responsible for the cost of a 5.5-mile, $11.8 million water line construction project to provide residents of Dimock with quality drinking water, the Pennsylvania Department of Environmental Protection (DEP) has now reached a $4.1 million settlement with Cabot.  According to DEP, Cabot's natural gas drilling activities in Susquehannah County are believed to be the source of gas migration and water contamination problems affecting Dimock residents' water wells, which the DEP began investigating in January 2009. The terms of the settlement agreement will require Cabot to reimburse DEP with $500,000 for the cost of investigating the gas migration, as well as to enable all 19 of the affected families to resolve their water-related issues based on their particular circumstances (with a minimum payment of $50,000), including offering, installing, and paying for whole-house gas mitigation water treatment systems.


USEPA Proposal Would Require a Clean Water Act Permit for Certain Pesticide Applications

This post was written by David Wagner.

For the application of pesticides, the U.S. Environmental Protection Agency (USEPA) is taking a new position – it now aims to bring pesticide applicators under the Clean Water Act’s (CWA) permitting program. Earlier this month, USEPA released a draft CWA National Pollutant Discharge Elimination System (NPDES) pesticide general permit for point source discharges from the application of pesticides to waters of the United States. Under the Bush Administration, USEPA had issued a rule stating that these Clean Water Act permits were not required for applications of pesticides to U.S. waters. An appeals court decision vacated the rule in April 2009 and triggered the development of this proposal.

USEPA estimates that the court’s decision will require approximately 365,000 pesticide applicators nationwide, including farmers, land managers and other entities, to obtain NPDES permits by April 2011. The draft pesticide general permit covers applicators of biological pesticides and chemical pesticides that leave a residue in four categories of pesticide uses:

  • Mosquito and other flying insect pest control
  • Aquatic weed and algae control
  • Aquatic nuisance animal control
  • Forest canopy pest control
Continue Reading...

USEPA Increases Permitting Requirements for Surface Coal Mining Projects

This post was written by Mark Mustian.

On April 1, 2010, the U.S. Environmental Protection Agency (USEPA) published on their website a new guidance document on improving USEPA reviews of Appalachian surface coal mining operations. As we noted in our blog over a year ago, changes were likely coming to the practice of mountain-top mining. The guidance documents sets forth the standards which will be followed when evaluating the issuance of permits under Section 404 of the Clean Water Act for the discharge of dredged or fill material during surface mining operations. USEPA has identified the following standards which must be met for any future mining activities.

  • Water quality and environmental integrity must be protected
  • Mining projects must avoid and minimize environmental impacts
  • Mining impacts must be effectively mitigated
  • Water quality and biological parameters must be monitored

The standard which will likely have the most significant impact is the protection of water quality. USEPA is proposing to evaluate the impact of a project based upon an increase in conductivity in the stream. They are setting general standards which must be met for any future projects. USEPA has found that mountain-top mining causes significant and persistent increases in dissolved chemical ion levels downstream from the mining, and these increases reach levels which are acutely toxic to aquatic organisms. In conjunction with the release of the guidance document, USEPA has released a report which assesses the state of the science on the environmental impacts of mountain-top mines and valley fills on streams in the Central Appalachian Coalfields.

The guidance is intended to become effective immediately on an interim basis. However, USEPA will be publishing the guidance in the Federal Register for comment. Based upon the comments its receives, USEPA will decide whether to modify the guidance document.

The guidance document, the report on environmental impacts of mountain-top mining, and other associated documents are available here.

This Time We're Serious: USEPA Outlines Punitive Measures Related to Cleanup of the Chesapeake Bay Watershed

This post was written by Chris Rissetto, Lou Naugle, Bob Helland, and David Wagner.

Last week, the U.S. Environmental Protection Agency ("EPA") outlined what it terms a "rigorous accountability framework" for addressing pollution levels in the Chesapeake Bay and its tributaries. Federal efforts to cleanup the Chesapeake Bay watershed have been ongoing for over 25 years and this is the first time that EPA has outlined a number of punitive measures intended to force compliance with pollution controls by the six Chesapeake Bay states – Delaware, Maryland, New York, Pennyslvania, Virginia and West Virginia – and the District of Columbia.

The update by Reed Smith describes the regulatory regime in place to address the harmful levels of pollutants in the watershed and discusses the punitive measures along with the legal issues they raise. The update also discusses what measures are expected in 2010, especially as they relate to the Chesapeake Bay total maximum daily load (TMDL) for nitrogen, phosphorus and sediment.

In the US, the End of Mountaintop Mining?

This post was written by Mark Mustian. 

Mountain-top mining has probably generated more controversy in the United States than any other current resource extraction process, and recent USEPA activities have significantly increased attention to the process. Before discussing the regulatory developments, some background information may be helpful. Mountain-top mining is utilized to remove low-sulfur coal from the tops of mountains in the Appalachian region. The mining company timbers the mountain-top and removes the topsoil. The company then uses explosives to remove the overburden rock to expose the coal seams. The overburden is typically pushed into a nearby valley, creating a valley fill. The coal is excavated and washed (creating a significant amount of coal slurry waste), and the top of the mountain is reclaimed and revegetated. The process results in permanent changes to the topography and permanent impacts to the regions streams and water quality.

Mountain-top mining is allowed under section 515(c)(1) of the Surface Mining Control and Reclamation Act (SMCRA). However, in order to deposit the overburden into the valley, and the valley watershed, the mining company must obtain a permit from the U.S. Army Corps of Engineers (USACE). A permit is required under section 404 of the Clean Water Act (CWA) in order to discharge dredged or fill material into the waters of the United States. The permit is issued by the USACE using the guidelines developed by the Environmental Protection Agency (EPA). Under Section 404(c) of the CWA, the EPA has the authority to deny a permit for the discharge of dredged or fill material if it determines that "that the discharge of such materials into such area will have an unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas (including spawning and breeding areas), wildlife, or recreational areas."

Continue Reading...

Come About! USEPA Changes Course on Commercial Vessel Permitting Requirements

This post was written by Mark Mustian, Jennifer Smokelin and Lou Naugle.

On Dec. 18, 2008, EPA issued a Vessel General Permit (“VGP”) to regulate discharges incidental to the normal operation of vessels operating in a capacity as a means of transportation. See epa.gov. This reverses the long-standing regulatory policy of EPA to specifically exclude discharges incidental to the normal operation of vessels from permitting requirements under the National Pollutant Discharge Elimination System (“NPDES”). See 38 FR 13528, May 22, 1973.

EPA’s about-face was the result of a petition and legal action by a group of parties concerned about the effects of ballast water discharges. The court found that EPA’s exclusion of incidental discharges from vessels exceeded its authority under the Clean Water Act. See, Northwest Environmental Advocates v. U.S. E.P.A, 2005 WL 756614, 61 ERC 1245, 35 Envtl. L. Rep. 20,075 (N.D. Cal. Mar 30, 2005). The ruling in Northwest Environmental vacated the blanket exemption for vessels effective Dec. 19, 2008. After that date, all discharges incidental to the normal operation of vessels operating in a capacity as a means of transportation are prohibited unless authorized under a NPDES permit.

All owners and operators of non-recreational vessels that are 79 feet and greater in length, commercial vessels less than 79 feet, and commercial fishing vessels of any length that discharge ballast water, are required to obtain and comply with the new VGP. The VGP covers 26 separate sources that will be regulated. Compliance with the VGP for a majority of the sources will require implementation of an inspection program and compliance with Best Management Practices (“BMP”). The permit also imposes additional inspection and monitoring programs for certain classes of vessels, numeric discharge limits for graywater from cruise ships, and oily discharges, and imposes whole effluent toxicity (“WET”) testing requirements on ballast water treatment systems that use biocides.


US Agencies Issue Revised Guidance Addressing Clean Water Act Jurisdiction

This post was written by Steven M. Nolan and Louis A. Naugle.

In Rapanos v. United States, 547 U.S. 715 (June 19, 2006), the Supreme Court issued a decision that delineated the extent to which federal regulation extended over water resources. In that case, the petitioner had filled in wetlands on his property without obtaining a permit, and had thereafter been prosecuted for doing so. The decision turned on the meaning of the phrase “waters of the United States” as used in the Clean Waters Act.

Three opinions emerged. Writing for four Justices, Justice Scalia held that the term “waters of the United States” encompassed waters that were navigable in the traditional sense and abutting wetlands; relatively permanent, standing or continuously flowing bodies of water connected to traditional navigable waters; and wetlands with a continuous surface connection to such waters (the “Scalia test”). In an opinion concurring in the judgment, Justice Kennedy stated that he would hold that wetlands were waters of the United States if the wetlands alone, or in combination with similarly situated lands in the region, significantly affected the chemical, physical and biological integrity of other covered waters more readily understood as navigable (the “Kennedy nexus” test). Four dissenters would have upheld a broad regulatory definition of the term “waters of the United States.”

Continue Reading...