In this month's Pennsylvania Law Weekly / Legal Intelligencer column, I discuss United States v. EME Homer City Generation, No. 11-19 (W.D. Pa. Oct. 12, 2011), and Jackson v. EME Homer City Generation, No. 11-28 (W.D. Pa. Oct 13, 2011), and the recurring issues related to the enforcement of the Clean Air Act's new source review (NSR) and prevention of significant deterioration (PSD) programs.
To read the article, click here.
From Jeffrey Collier of GT West Palm Beach:
On October 21st, the U.S. Forest Service and environmental advocates successfully defended the Clinton administration's Roadless Area Conservation Rule ("Roadless Rule"), winning a decision by the U.S. Court of Appeals for the 10th Circuit requiring a district court to vacate its nationwide injunction against the rule. See Wyoming v. U.S. Dep't of Agriculture (USDA), No. 09-8075 (10th Cir. Oct. 21, 2011).
The state of Wyoming, with support from the Colorado Mining Association, had won a decision in the U.S. District Court for the District of Wyoming on claims that the Roadless Rule violated the Wilderness Act and the National Environmental Policy Act ("NEPA") by creating de facto wilderness areas and by doing so without following NEPA procedural requirements. The Roadless Rule eliminated prospects for almost any road construction on about 58.5 million acres of federal land.
Continue Reading...As mentioned earlier, I recently dedicated my monthly column for the The Legal Intelligencer/Pennsylvania Law Weekly to an examination of two Pennsylvania Environmental Hearing Board appeals which address aggregation of air emission sources under the Clean Air Act and the Pennsylvania Air Pollution Control Act.
This week the Pennsylvania Department of Environmental Protection (PADEP) has issued draft technical guidance on this issue. PADEP's draft guidance addresses how to determine when two operations in the oil and gas business constitute a single "source" for purposes of regulation under the federal and state air statutes. Sources that emit more than a threshold amount of a pollutant (typically 250 tons/year for each pollutant) are subject to a somewhat onerous permitting requirement before being constructed or modified (that is, nonattainment new source review or Prevention of Significant Deterioration new source review).
The draft guidance interprets longstanding (but confusing) federal requirements that apply a three part test: two well pads, compressor stations, or processing plants constitute a single "source" if (a) they are in the same industry, (b) they are under common control, and (c) they are "contiguous" or "adjacent." The PADEP guidance focuses (properly) on whether two facilities in the natural gas industry under control of the same or related entities are "contiguous" or "adjacent." PADEP will not generally "daisy chain" facilities along a gathering system, nor will it allow the pipelines to establish contiguity. It will consider surface facilities as a single source if they are within a quarter-mile and more distant facilities as a single source on a case-by-case basis.
In this month's Pennsylvania Law Weekly / Legal Intelligencer column, Sabrina Mizrachi and I consider the recent Pennsylvania Environmental Hearing Board (EHB) decision, Consol Pennsylvania Co. v. Department of Environmental Protection, EHB Docket No. 2010-030-R (Pa. Env. Hrg. Bd. Aug 26, 2011). We use Chief Judge Thomas W. Renwand's opinion as a chance to review the sometimes confusing jurisdictional and procedural principles of the EHB.
To read the article, click here.
Pennsylvania Governor Tom Corbett announced that he will present a plan to the General Assembly that will implement numerous recommendations proposed by the Marcellus Shale Advisory Commission (Commission), including an impact fee on wells and more rigorous standards on hydraulic fracturing. The impact fee would subject each well to a fee of up to $40,000 in the first year, $30,000 in the second, $20,000 in the third, and $10,000 in the fourth through tenth year, adding up to a potential $160,000 per well. Seventy-five percent of the revenues collected from these fees would be distributed to the counties and municipalities in which drilling is taking place, with the vast majority of the remainder going to the Pennsylvania Department of Transportation for infrastructure and maintenance of roads in those same counties.
The proposed standards would increase well setback distances from wells and waterbodies, increase penalties and bond requirements, and expand gas operators' "presumed liability" for impairing water quality from 1,000 to 2,500.
Governor Corbett created the Commission by Executive Order in March in order to create a plan for developing the Marcellus Shale responsibly, and on July 22 the Commission issued its final report, which included 96 policy recommendations.
In July, the New York State Department of Environmental Conservation ("NYSDEC") released its draft Supplemental Generic Environmental Impact Statement ("SGEIS") on horizontal drilling. As we explained in more detail earlier, the draft SGEIS included draft regulations, which would impose "rigorous and effective controls" on hydraulic fracturing. In September, NYSDEC supplemented its SGEIS, adding mitigation measures addressing socioeconomic, community character, visual, noise and transportation impacts.
NYSDEC has now issued its draft regulations, which are the same as those released in July, for public comment. The public comment period will conclude December 12, and four public hearings are being held in November in Dansville, Binghamton, Sheldrake and New York City.
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