Last week, Vermont Governor Pete Shumlin signed HB 464 into law which bans hydraulic fracturing in the state. Vermont is the first state to enact such a ban. It is an unusual ban, as there is not believed to be much natural gas within the state's grounds. The bill has essentially been deemed a symbolic one for environmentalists to point to in hopes that other states follow. And according to a report from Fuelfix.com, this doesn’t sit well with the hydraulic fracturing industry. According to that report, the American Petroleum Institute(API) said the law is an "irresponsible path that ignores three major needs: jobs, government revenue and energy security."
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Last week, the United States Environmental Protection Agency released its draft Underground Injection Control (UIC) Program Guidance for Class II wells that utilize diesel fuel as a fracturing fluid or as a component of a fracturing fluid in hydraulic fracturing operations. The draft guidance provides recommendations for UIC permit writers related to permit duration and well closure, permit application and review, area of review, and well construction, including mechanical integrity testing, financial responsibility, and public notification. The draft guidance identifies the following six substances by their chemical abstract service (CAS) numbers, which would trigger Safe Drinking Water Act (SDWA) requirements if injected as a component of hydraulic fracturing fluid: 68334-30-5, 68476-34-6, 68476-30-2, 68476-31-3, 8008-20-6, and 68410-00-4. According to the fact sheet for the draft guidance, it is “intended to provide information for EPA permit writers issuing permits under the Safe Drinking Water Act (SDWA) to ensure protection of underground sources of drinking water (USDWs).” The draft guidance is open for 60 days for public comment. In the interim, while this guidance undergoes public notice and comment, EPA expects that permitting decisions concerning hydraulic fracturing operations that use diesel fuels will be made on a case-by-case basis. EPA further expects that the draft guidance will not be cited as a basis for such permitting decisions.
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Today, the Department of Interior (DOI) released its draft rule which would require public disclosure of chemicals used in hydraulic fracturing on public and Indian lands. The rule, created by the Bureau of Land Management (BLM), would “(1) provide disclosure to the public of chemicals used in hydraulic fracturing on public land and Indian land, (2) strengthen regulations related to well-bore integrity, and (3) address issues related to flowback water.” To coincide with the proposed rule the BLM also released an economic analysis.
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Today, the EPA issued final air rules for the oil and natural gas sector as mandated by the Clean Air Act. Most notably, the final rule establishes new source performance standards (NSPS) for volatile organic compound (VOC) emissions from natural gas wells, requiring operators of hydraulic fractured wells to use “reduced emissions completions” or “green completions.” Green completions, which are already used by much of the industry, involve the separation of gas and liquid hydrocarbons during flowback to capture the natural gas that may otherwise escape into the air. Operators are required to use green completions, where feasible, by January 1, 2015. Additionally, the final rule revises the NSPS for VOC and sulfur dioxide (SO2) emissions from natural gas processing plants and the national emissions standard for hazardous air pollutants (NESHAP) for glycol dehydration units.
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Today, President Obama issued an executive order supporting safe and responsible development of unconventional natural gas resources, which includes hydraulic fracturing. The executive order focuses on developing policy through an interagency working group. The order reads, “To formalize and promote ongoing interagency coordination, this order establishes a high-level, interagency working group that will facilitate coordinated Administration policy efforts to support safe and responsible unconventional domestic natural gas development.” The group will be chaired by the Director of the Domestic Policy Council, and will include representatives from the Department of Defense(DOD), Department of Interior(DOI),Department of Energy(DOE), Health and Human Services(HHS), Department of Transportation(DOT), Department of Agriculture(USDA), Department of Commerce(DOC), Department of Homeland Security(DHS), Environmental Protection Agency(EPA), Office of Management and Budget(OMB), Council on Environmental Quality(CEQ), Office of Science and Technology Policy(OSTP), the National Economic Council(NEC) and other agencies that the Chair sees fit to participate. The working group will:
- Coordinate agency policy activities,
- Coordinate among agencies the sharing of scientific, environmental and related technical and economic information,
- Engage in long-term planning and ensure coordination among the appropriate Federal entities with respect to such issues as research, natural resource assessment and the development of infrastructure,
- Promote interagency communication with stakeholders, and
- Consult with other agencies and offices as appropriate.
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The National Resources Defense Council (NRDC) petitioned the U.S. Food and Drug Administration (FDA) in 2008 to ban bisphenol A (BPA) from food packaging. FDA never responded to NRDC’s petition, forcing NRDC's hand to file suit in 2010, in the U.S. District Court for the Southern District of New York. The FDA and NRDC reached a settlement in which FDA would issue a decision on BPA by March 31st, 2012.
Last week, FDA announced it had rejected the petition and will not ban BPA from food packaging; however the FDA will continue to research BPA before making a final determination on the safety of BPA and its effects on health. The FDA said the petition “did not provide the scientific evidence needed to change current regulations.” FDA spokesman Doug Karas said, “I cannot stress enough that this is not a final safety determination on BPA.”
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On March 30, 2012, the Department of Justice and Range Resources jointly dismissed a Safe Drinking Water Act enforcement case that DOJ brought against Range Resources in January 2011. The suit sought to enforce an Imminent and Substantial Endangerment Administrative Order that the Environmental Protection Agency (EPA) had issued in December 2010 pursuant to the Safe Drinking Water Act. The EPA order, which Range challenged, had alleged that gas wells drilled by Range were responsible for the presence of certain chemicals in two nearby private water wells.
Range filed a petition for review of the order in the Fifth Circuit Court of Appeals, arguing that EPA had not adequately investigated whether the company’s wells could be responsible for the contamination before issuing its order. The district court stayed the enforcement case pending the outcome of this appeal. The Fifth Circuit held oral argument in October 2011, but had not yet issued a decision when the parties filed the voluntary dismissal.
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The EPA announced today a set of proposed Significant New Use Rules(SNUR) under the Toxic Substances Control Act(TSCA) for five groups of chemicals: polybrominated diphenylethers(PBDEs), benzidine dyes, hexabromocyclododecane(HBCD), a short chain chlorinated paraffin, and phthalate di-n-pentyl phthalate(DNPP). The proposed rules “would require that anyone who intends to manufacture, import, or process any of the chemicals for an activity that is designated as a significant new use to submit a notification to EPA at least 90 days before beginning the activity.” The notification process would allow the EPA to evaluate and review the new use of the chemical, and it provides the EPA time to take action if they deem necessary. As part of the SNUR for PBDE’s, the EPA proposes additional testing for the PBDE’s as they relate to health and environmental effects.
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Today, the United States Supreme Court, in Sackett v. U.S. Environmental Protection Agency, held that a compliance order issued by the U.S. Environmental Protection Agency (EPA) for alleged violations of the Clean Water Act (CWA) was a “final agency action” under the Administrative Procedure Act (APA) and was judicially reviewable as the CWA does not preclude judicial review under the APA. Click on the following link for a copy of the full opinion: http://www.supremecourt.gov/opinions/11pdf/10-1062.pdf
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Yesterday, Massachusetts Representative Ed Markey(D-MA) petitioned the Food and Drug Administration(FDA) to permanently ban bisphenol A(BPA) from a number of household products that could contain food and beverages. According to the press release this is the first time the FDA has received three petitions from a member of Congress. The three petitions would ban BPA from infant formula and baby and toddler food packaging, small reusable household food and beverage containers and canned food and beverage packaging. Rep. Markey has received support from 62 organizations that support the ban. Rep. Markey introduced H.R. 432, which would ban BPA in food containers. Despite the bill having 34 co-sponsors it has yet to be taken up in the Energy and Commerce Committee. The FDA is currently considering whether to consider a petition from the NRDC that would also ban BPA from all food and packaging
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Last week, the Eleventh Circuit issued its decision in Solutia, Inc., et al. v. McWane, Inc., et al., -- F.3d --, 2012 WL 695007 (11th Cir. 2012), holding that a potentially responsible party may not pursue multiple remedies under CERCLA when seeking to recover cleanup costs incurred pursuant to a federal or state consent decree.
The issue presented to the Eleventh Circuit was whether a PRP that has a Section 113 claim for contribution for cleanup costs may also bring a cost recovery claim under Section 107. The Supreme Court left open this very question in United States v. Atlantic Research Corp., 551 U.S. 128, 127 S. Ct. 2331 (2007), creating significant uncertainty for PRPs. In reaching its decision, the Eleventh Circuit relied upon the Supreme Court’s admonishment in Atlantic Research to read CERCLA “as a whole,” and the Court found that to permit an election of remedies between Section 107 and 113 would undermine the structure of CERCLA altogether.
More information about the decision is available at http://www.law360.com/environmental/articles/316630/11th-circ-limits-contribution-claims-under-cercla, the decision itself is available at http://www.ca11.uscourts.gov/opinions/ops/201015639.pdf, and our brief filed in the case can be found here.
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The Illinois General Assembly is trying to stay one step ahead of its states’ hydraulic fracturing boom, following the example of other states in rapidly developing shales. Four chemical disclosure bills have been introduced in the Illinois General Assembly this year. HB 5853 and SB 3534 would amend the Oil and Gas Act by requiring companies to disclose chemicals used in the hydraulic fracturing process. HB 3897 and SB 3280 also add similar disclosure requirements, as well as require testing of the steel well casings that protect the groundwater during drilling. Members of the Illinois Oil and Gas Association have stated their support for the bills because they provide transparency in the drilling process.
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Last week, the National Enhanced Oil Recovery Initiative(NEORI), in conjunction with the Great Plains Institute(GPI) and the Center for Climate and Energy Solutions(C2ES), released a set of recommendations for enhanced oil recovery(EOR) on Capitol Hill. The highlight of the list of recommendations is a federal tax incentive for companies that capture and transport the CO2. NEORI estimates that the tax credit would lead to a quadrupling of current U.S. oil production from EOR to nearly 400 million barrels/year, and at the same time reduce CO2 emissions by roughly 4 billion tons over the next 40 years. The report also recommends that federal policies should complement state policies that already exist. The recommendations received bipartisan support from Sens. Baucus(D-MT), Conrad(D-ND), Hoeven(R-ND), Lugar(R-IN), and Congressmen Rick Berg(R-ND) and K.Michael Conaway(R-TX). Sen. Baucus said, “I applaud the National Enhanced Oil Recovery Initiative for bringing together such a diverse group of stakeholders and presenting this set of policy recommendations. Enhanced oil recovery is a critical element of our broad, all-of-the-above approach to pursuing energy independence for America. It is also a clear example of American ingenuity that is re-invigorating oil fields.”
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Last week, President Obama released details of his 2013 budget proposal. As part of the proposal, a total of $45 million would be allocated to federal agencies to study the effects of hydraulic fracturing on health, safety and the environment. The breakdown in the proposal is as follows: $14 million to the EPA, $12 million to the DOE, and $18.6 million to the USGS. The EPA press release states that the “$14 million investment will begin to assess potential impacts of hydraulic fracturing on air quality, water quality and ecosystems.” The USGS sees its budget increase by $13 million from 2012 for hydraulic fracturing studies. The budget increase “includes funding for natural gas assessments, as well as for science that addresses water quality and quantity, induced earthquakes, and habitat impacts.” Overall, the 3 agencies will join together in a collaborative research effort to better understand the effects hydraulic fracturing plays on the environment.
The budget proposal funding comes a few weeks following the President’s State of the Union address where he advocated for gas drilling in shale rock. The President believes that hydraulic fracturing could add more than 600,000 jobs by the end of the decade and provide a boost to the economy. Obama said, “We have a supply of natural gas that can last America nearly 100 years, and my administration will take every possible action to safely develop this energy.” He continued on saying, “The development of natural gas will create jobs and power trucks and factories that are cleaner and cheaper, proving that we don’t have to choose between our environment and our economy.”
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For the first time in thirty years, the United States has approved the construction of a new nuclear power plant. Last week, the Nuclear Regulatory Commission (NRC) voted to approve the issuance of the nation’s first Combined Construction and Operating License (COL), which will allow the construction of the nation’s first two nuclear units in 30 years at Plant Vogtle, near Waynesboro, Georgia. The COL is a streamlined process that addresses reactor design, construction, and operation of new nuclear units all in one licensing proceeding. Receipt of the COL signifies that full construction of the $14 billion facility can now begin in earnest. Plant Vogtle is jointly owned by the Municipal Electric Authority of Georgia (MEAG Power), Ogelthorpe Power Corporation, Georgia Power, and Dalton Utilities and will be operated by Southern Nuclear, a subsidiary of Southern Company. The co-owners are financing construction through a variety of means, including bond programs and pursuit of loan guarantees from the Department of Energy. The co-owners expect Unit 3 to begin operating in 2016 and Unit 4 in 2017.
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Last week, the Pennsylvania legislature passed H.B. 1950, which will allow counties to charge well operators a fee for natural gas wells drilled within their borders. The fee that counties charge companies would vary from year to year depending on the price of natural gas. In a well’s first year, the fee could range from $40,000 to $60,000. With each passing year the fee would decrease. In the 4th year, the fee would be between $10,000 and $20,000 and by the 11th year it would be between $5,000 and $10,000. It is up to each county whether to impose the fee or not. If a county chooses not to, the municipalities within the county can then vote; and if 50% or more of the municipalities vote to approve the fee within 60 to 120 days after the effective date of the law, then the fee will be approved for the entire county. The bill is being sent to Gov. Corbett, who is expected sign it.
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Last week, the Eleventh Circuit issued its decision in Solutia, Inc., et al. v. McWane, Inc., et al., -- F.3d --, 2012 WL 695007 (11th Cir. 2012), holding that a potentially responsible party may not pursue multiple remedies under CERCLA when seeking to recover cleanup costs incurred pursuant to a federal or state consent decree.
The issue presented to the Eleventh Circuit was whether a PRP that has a Section 113 claim for contribution for cleanup costs may also bring a cost recovery claim under Section 107. The Supreme Court left open this very question in United States v. Atlantic Research Corp., 551 U.S. 128, 127 S. Ct. 2331 (2007), creating significant uncertainty for PRPs. In reaching its decision, the Eleventh Circuit relied upon the Supreme Court’s admonishment in Atlantic Research to read CERCLA “as a whole,” and the Court found that to permit an election of remedies between Section 107 and 113 would undermine the structure of CERCLA altogether.
More information about the decision is available at http://www.law360.com/environmental/articles/316630/11th-circ-limits-contribution-claims-under-cercla, the decision itself is available at http://www.ca11.uscourts.gov/opinions/ops/201015639.pdf, and our brief filed in the case can be found here.
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The year started with a bang for City Hall, thanks to the California Supreme Court’s decision
terminating redevelopment at the end of this month.
On December 29, the court decided that the Legislature acted within its authority in passing legislation
dissolving all California redevelopment agencies in jurisdictions that committed to divert redevelopment
funding to be used for education and public safety. The high court’s decision terminates all
redevelopment agencies as of January 31, and requires all cities and countries to begin immediately the
process of winding down the agencies. Although the court’s ruling applies statewide, its ramifications
loom large for the city of Los Angeles.
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Following recent earthquakes near hydraulic fracturing sites in Ohio, Arkansas, Oklahoma and Colorado, Senator Lautenberg (D-NJ) is calling on the United States Geological Survey (“USGS”) to investigate whether seismic risks are posed by hydraulic fracturing and the related waste disposal process. By letter, Senator Lautenberg urged USGS to conduct: “1) an assessment of the science related to earthquakes caused by disposal of fracking waste fluids, 2) an evaluation of the current risk faced by communities where fracking activity is taking place, and 3) recommended strategies to prevent future earthquakes due to fracking.” The Senator is asking USGS to move quickly on the issue and provide local communities, the states and general public with the information they need to assess the potential dangers associated with hydraulic fracturing.
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Despite the absence of specific legislative authorization delegating to them ruling making authority concerning California’s Green Chemistry program, the California Office of Environmental Health Hazard Assessment(OEHHA) announced today the adoption of its Green Chemistry-Hazard Traits Rulemaking. The adopted rule, which we have previously blogged about here and later here, is stated to be a response to the California Health and Safety Code section 25251, which requires the California Department of Toxic Substances Control(DTSC) to “establish the Toxics Information Clearinghouse, which shall provide a decentralized, Web-based system for the collection, maintenance, and distribution of specific chemical hazard trait and environmental and toxicological end-point data.” The adoption of the regulation becomes effective on January 19, 2012.
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