Elliott & Elliott Launches New PennEast Pipeline Documents Public Archive

Elliott & Elliott announces the launch of a new publicly-available Dropbox archive of documents relating to the proposed PennEast natural gas pipeline.  The archive, which will be continuously updated, includes documents from the Federal Energy Regulatory Commission (FERC) docket for the PennEast pipeline project (PF15-1), the Delaware River Basin Commission (DRBC), and other agencies and organizations.  The archive also includes guides to accessing electronic information at FERC Online, including instructions on subscribing to a docket, and the FERC "citizen guide", An Interstate Natural Gas Facility on My Land:  What Do I Need to Know?  The Dropbox archive is available at: https://www.dropbox.com/sh/fwhs6dcjtmrptq9/AABmUxo8I0N4z_n_l4J-WJ8Ea?dl=0

(Please be patient for large files to load.)

We welcome additional submissions of documents and other information on the #PennEast pipeline for the archive.  Submissions can be sent to: pipeline@elliott-lawyers.com

EPA Guidance to Commercial and Industrial Lessees for CERCLA Liability Protection for Historic Contamination

The United States Environmental Protection Agency (EPA) recently issued revised guidance clarifying its position that commercial and industrial tenants can protect themselves from contamination liability under the federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, or "Superfund") by relying on an “all appropriate inquiry” of the ownership and uses of the property, timely performed by the landlord, or by timely performing the all appropriate inquiry themselves. Under EPA’s prior guidance, it was unclear that these statutory defenses were available to tenants. CERCLA imposes strict, joint, and several liability on designated persons, including owners and operators of facilities, where there has been a release or threatened release of hazardous substances. Although the mere execution of a lease does not necessarily impose CERCLA sec. 107 liability, tenants leasing contaminated properties may fall within the “operator” liability designation even if the contamination occurred prior to the tenant’s use of the property. Tenants are also listed in the CERCLA sec. 101(40) definition of "bona fide prospective purchaser" ("BFPP"). CERCLA provides a liability defense to BFPPs who can meet certain requirements, including the making of an "all appropriate inquiry", ordinarily a Phase I environmental site assessment, prior to purchasing or leasing the property. This defense can protect against CERCLA liability at a site that has historical environmental contamination that was not caused by the tenant. Subject to certain conditions, the BFPP defense applies even when the inquiry reveals historical environmental contamination on the property to be purchased or leased.

Under EPA’s revised guidance, a tenant can have derivative BFPP protection by relying on the landlord’s all appropriate inquiry or by performing the all appropriate inquiry itself prior to commencing operations if the landlord failed to timely undertake it or has acted in a way to invalidate this protection. The new guidance indicates how EPA will exercise its enforcement discretion under CERCLA. It is important to note that EPA may still take enforcement action against a tenant if it is potentially liable for reasons other than its status as a tenant or where the owner is not in compliance with state or federal regulatory requirements or cleanup orders.

A prospective lessee of commercial or industrial property should determine if the owner or landlord of the property timely performed an all appropriate inquiry prior to its purchase of the property, where the inquiry, purchase and lease occurred after January 11, 2002. If not, the tenant may want to consider performing a Phase I environmental site assessment prior to entering into a lease to obtain protection from CERCLA liability claims.

A link to EPA’s guidance document is here: "Revised Enforcement Guidance Regarding the Treatment of Tenants Under the CERCLA Bona Fide Prospective Purchaser Provision"

National Parks Conservation Coalition Seeks Injunction to Prevent Construction of Susquehanna-Roseland 500 kV Transmission Line

 A coalition of national, regional and local conservation groups has filed a motion for a preliminary injunction in federal court to stop construction of the Susquehanna-Roseland transmission line through three popular national parks – the Delaware Water Gap National Recreation Area, the Middle Delaware National Scenic and Recreational River, and the Appalachian National Scenic Trail—while the court considers claims that the power line will cause irreversible ecological and scenic damage.  A copy of the press release announcing the court filing can be read here. A copy of the Motion for Preliminary Injunction and legal memorandum in support of the motion is available here.

The press release states:

At stake is nothing less than the Delaware Water Gap’s spellbinding views, pristine environment, and diverse wildlife that include bald eagles, peregrine falcons, and black bears. The Delaware Water Gap National Recreation Area was named a Top 10 most-photogenic national park for fall foliage, and is the eighth most visited national park unit in the country. The Delaware River is one of the cleanest rivers in the nation. The Appalachian Trail, completed 75 years ago, and designated as the nation’s first national scenic trail in 1968, is enjoyed by 2-3 million people each year. Together, these national parks offer some of the very best outdoor recreational opportunities for those living in the Mid-Atlantic region. “Countless public dollars and volunteer hours have gone into protecting special places like the Delaware Water Gap,” explained Mark Zakutansky, Mid-Atlantic Policy Manager for the Appalachian Mountain Club. “Allowing irreplaceable scenic vistas, trails, and wildlife habitat to be permanently damaged violates the Park Service’s mission and sends the wrong message about the value of our national treasures. We have to halt this construction, at least for now, so the court can review the case.”

We previously posted on the environmental impact statement for the Susquehanna-Roseland transmission line on September 1, 2012 and onDecember 3, 2011.

Federal Court Dismisses As Premature Lawsuit Challenging DRBC Failure to Comply With NEPA in Developing Natural Gas "Fracking" Regulations

A federal district court judge has dismissed as premature three consolidated lawsuits challenging the failure of the Delaware River Basin Commission (DRBC) and other federal defendants to comply with the National Environmental Policy Act in the course of drafting and considering regulations that would permit natural gas development in the Delaware River Basin.   In a memorandum and opinion dated September 24, 2012, the court dismissed the actions for lack of jurisdiction.  The court found that because the DRBC has merely released draft regulations for public comment, plaintiffs had not yet established an "injury-in-fact " requisite to establish Article III standing for federal court jurisdiction. The court observed, "The line between proposed regulations and final regulations may be subtle, but the court believes it is real[.]" The court recognized that "a plaintiff can show an injury-in-fact through showing the creation of an increased risk of invasion of concrete interests; in NEPA cases, this chain of reasoning is extended to allow for an injury based on the increased risk in uninformed decision-making that will create an increased risk in the invasion of a concrete interest." However, generally in such cases, "the agency has done something that has affected legal rights or obligations of some party in a way that made an invasion of plaintiffs interests more likely, or refused to do something that allowed an already existing invasion to continue."  Here, because the regulations are merely draft, "the court has no way of judging reliably how probable it is that the regulation will be enacted, and thus no way of judging whether risks that natural gas development may create are more than conjecture." The court also found that the claims were not ripe for judicial review.

However, the dismissal is by no means the end of the lawsuit. We can reasonably anticipate an appeal of the dismissal. Moreover, under the court's ruling, a challenge to the regulations as violative of NEPA would be ripe and appropriate if, and when, such regulations are issued in final form and plaintiffs are able to establish the requisite "injury-in-fact."

The Court Found That All Plaintiffs Had Interests Sufficient to Bring the Lawsuit

Although the court rejected the plaintiffs' claims of "injury-in-fact" to confer Article III standing, the court found that all of the plaintiffs had concrete interests sufficient to bring the lawsuits: State of New York, Delaware Riverkeeper, Riverkeeper, Inc., Damascus Citizens for Sustainability, and the National Parks Conservation Association. The interests that New York State asserted are particularly interesting, because they involve air pollution as well as concerns over water quality.  One set of interests asserted by New York was maintaining the status quo in the Upper Delaware River, home to numerous endangered species. New York claims ownership of the shellfish, fish, birds, and other animals that live wild on New York’s land and in its waters. New York also asserted property rights in land, facilities, and the rights to conservation easements along the Upper Delaware, which gave New York proprietary interests sufficient to confer standing.  New York’s other asserted interest is tied to preventing increases in ozone (O3) concentrations over New York’s population, which can increase due to natural gas production. As New York asserted,  ozone can cause respiratory health problems, asthma attacks, and may also be linked to higher mortality rates. The court declared that New York's "desire to prevent its residents from suffering from increased ozone exposure is analogous to a state’s desire to secure the abatement of a public nuisance—in other words, a quasi-sovereign interest in the health of its residents."

The Troubled History of DRBC Compliance With NEPA

The court did not address the merits of the plaintiffs' claims that DRBC violated NEPA by drafting natural gas development regulations without complying with NEPA's procedural requirements.  However, one need look no further than the court's simple review of DRBC history to see that DRBC's compliance with NEPA requirements is problematic:

After NEPA was enacted in 1970, the DRBC promulgated regulations implementing it as to its own operations. (NGO Pls. Mem. (11–CV–2599 Docket Entry # 79–1) at 4–5.) The CEQ’s guidelines on preparing EISs published in the 1970s included the DRBC as a federal agency. (Id. at 5.) The DRBC performed NEPA analyses during that decade. (Id.) In 1980, however, the DRBC suspended its NEPA-implementing regulations due to lack of financial resources and indicated it would rely on an agency of the federal government to serve as “lead agency” and perform EISs for DRBC projects. (Id.) In 1997, the DRBC repealed its NEPA regulations. (Id.)

It is hard to imagine how an agency could successfully claim that it can avoid NEPA obligations because of "lack of financial resources."  We note that historically the DRBC has prepared environmental impact statements and in several cases the Commission conceded that it was a federal agency for purposes of NEPA. See, e.g., Bucks County Bd. of Commissioners v. Interstate Energy Co., 403 F. Supp. 805, 808 (E.D. Pa. 1975) (DRBC as the designated federal agency to prepare and review an EIS); Borough of Morrisville v. DRBC, 399 F. Supp. 469, 479, n.7 (E.D. Pa. 1975) (DRBC conceded it was a federal agency for purposes of NEPA). In Delaware Water Emergency Group v. Hansler, 536 F.Supp. 26, 36 (E.D. Pa., 1981), while the court expressed some doubt on the matter, it also noted that the DRBC did not dispute that NEPA obligations applied to it, and stated 'to the extent that the United States' member of the Commission votes in favor of an application or otherwise acquiesces in accordance with the Compact, such approval might be deemed Federal action.'"

We will report on further developments in the case as they emerge.

National Park Service Issues Final Environmental Statement on PP&L Susquehanna-Roseland Transmission Line Through Delaware Water Gap National Recreation Area

The National Park Service has published its Final Environmental Statement (FES) on the Susquehanna-Roseland Transmission Line through the Delaware Water Gap National Recreation Area. The FES effectively approves the utilities' proposed route of a new 500kV line across the Delaware Water Gap National Recreation Area, Middle Delaware National Scenic and Recreational River, and the Appalachian National Scenic Trail in Pennsylvania and New Jersey.

The final environmental statement confirms NPS's previous determination that the "no action" alternative is the environmentally-prefereable alternative, but determined that the utilities' proposed route - among six alternatives evaluated - is its "preferred alternative", assuming the incorporation of "critical mitigation measures."  The "preferred alternative" is the one “which the agency believes would fulfill its statutory mission and responsibilities, giving consideration to economic, environmental, technical and other factors.”

NPS made this determination despite finding that the proposed route "would cause significant adverse impacts to geologic resources; wetlands; vegetation; landscape connectivity, wildlife habitat, and wildlife; special-status species; rare and unique communities; archeological resources; historic structures; cultural landscapes; socioeconomics; infrastructure, access and circulation; visual resources; visitor use and experience; wild and scenic rivers; and park operations."

Specifically, among other impacts, the alternative will cause:

• conversion of 20.28 acres of forested wetlands to scrub shrub and/or emergent wetlands
• adverse impacts to 15.22 acres of Exceptional Value Wetlands and/or rare and unique wetlands
• clearing of 240 acres of vegetation, including 129 acres of mature forest
• adverse impacts to multiple archaeological sites, at least 17 historic structures, 18 cultural landscapes, including the Appalachian National Scenic Trail.

The FES articulates NPS's intention to require mitigation of adverse impacts where possible:

The NPS expects to conclude consultation by including in any ROD a binding commitment to the mitigation measures disclosed in this EIS, as required by 36 CFR § 1508.8. Mitigation measures specific to the impact topics, where applicable, are presented in appendix F. The NPS would also establish mechanisms to ensure that all mitigation obligations are met, mitigation measures are monitored for effectiveness, and unsuccessful mitigation is quickly remedied. In instances where impacts cannot be avoided and mitigation is not feasible, compensation for resources lost or degraded through project construction, operation, and maintenance would be required. Examples of items that cannot be remedied through mitigation include impacts that degrade the scenic and other intrinsic values of the parks or impacts that result in the loss of recreational use and visitor enjoyment.

The Final Environmental Impact Statement is available here.

Note: This is an update to our prior posts on this topic of January 21, 2010 and December 3, 2011.

Pa. Appeals Court Strikes Down Act 13 Natural Gas Drilling Law as Unconstitutional

In a 4-3 decision issued today in Robinson Township, et al. v. Commonwealth of Pennsylvania (284 MD 2012), the Commonwealth Court struck down as unconstitutional Pennsylvania's "Act 13", a law that provided that natural gas well drilling, waste pits and pipelines be allowed in every zoning district, including residential districts.  In its 54-page opinion, the Court stated: Because the changes required by [the law, at 58 Pa. C.S. §3304] do not serve the police power purpose of the local zoning ordinances, relating to consistent and compatible uses in the enumerated districts of a comprehensive zoning plan, any action by the local municipality required by the provisions of Act 13 would violate substantive due process as not in furtherance of its zoning police power. Consequently, the Commonwealth’s preliminary objections to Counts I, II and III are overruled.  

Because 58 Pa. C.S. §3304 requires all oil and gas operations in all zoning districts, including residential districts, as a matter of law, we hold that 58 Pa. C.S. §3304 violates substantive due process because it allows incompatible uses in zoning districts and does not protect the interests of neighboring property owners from harm, alters the character of the neighborhood, and makes irrational classifications. Accordingly we grant Petitioners’ Motion for Summary Relief, declare 58 Pa C.S. §3304 unconstitutional and null and void, and permanently enjoin the Commonwealth from enforcing it.

This decision may have impacts which go beyond natural gas drilling. In particular, other statutory provisions purport to require municipalities to allow timbering in every municipal zoning district. We'll offer some further thoughts on the implications of this decision in a future blog. In the meantime, those interested in reading the opinion can find it on the Pennsylvania Commonwealth Court's website here.

Risks of Fracking Gas Well Leases: "Homeowners and Gas Well Drilling: Boon or Bust"

Underscoring the risks of Marcellus Shale formation gas well leases that we discussed in our post of December 4, 2011 is an EcoWatch article posted yesterday by New York attorney Elisabeth Radow, "Homeowners and Gas Well Drilling: Boon or Bust."   It contains a thorough and extensive analysis of numerous issues relating to gas well drilling and leases for such activities and the risks for property owners who enter into such leases.  Accompanying the analysis are a series of photographs of actual well drilling sites by photographer J Henry Fair, best known for his Industrial Scars series, in which he "researches our world’s most egregious environmental disasters and creates images that are simultaneously stunning and horrifying". Mr. Fair’s work has been featured in national and international media and has been exhibited world wide. The article and photographs make for sobering reading and viewing for anyone who has entered into such a lease or is considering such a lease.  Property owners who may enter into such leases should be fully cognizant of the significant environmental and legal risks of these transactions.  This article provides valuable information on these issues.

Congressional Research Services issues CRS Report to Congress on "Proposed Keystone XL Pipeline: Legal Issues"

CongressionalResearchService

On January 23, 2012, the Congressional Research Services issued a Report to Congress on "Proposed Keystone XL Pipeline: Legal Issues."   The entire report (PDF, 29 pp.) can be found here.  The report analyzes a variety of legal issues, including: the sources of Presidential and State Department legal authority regarding cross-border facilities, reconciling the Executive and Legislative roles related to foreign commerce and judicial interpretations of those roles,  constitutional concerns related to potential action by States related to the pipeline, preemption issues, the National Environmental Policy Act (NEPA)  process for permitting of the pipeline, and the availability of judicial review of actions taken under Executive Order 13337.  The Report to Congress provides a typically thorough review of the issues and is required reading for persons interested in the legal issues arising from the Keystone XL proposal.   The Summary of the Report states, in part: "New legislative activity with respect to the permitting of border-crossing facilities, a subject previously handled exclusively by the executive branch, has triggered inquiries as to whether this raises constitutional issues related to the jurisdiction of the two branches over such facilities. Additionally, as states have begun to contemplate taking action with respect to the pipeline siting, some have questioned whether state siting of a pipeline is preempted by federal law. Others argue that states dictating the route of the pipeline violates the dormant Commerce Clause of the Constitution which, among other things, prohibits one state from acting to protect its own interests to the detriment of other states. This report reviews those legal issues. First, it suggests that legislation related to cross-border facility permitting is unlikely to raise significant constitutional questions, despite the fact that such permits have traditionally been handled by the executive branch alone pursuant to its constitutional “foreign affairs” authority. Next, it observes generally that state oversight of pipeline siting decisions does not appear to violate existing federal law or the Constitution. Finally, the report suggests that State Department’s implementation of the existing authority to issue presidential permits appears to allow for judicial review of its National Environmental Policy Act determinations."

A companion report from CRS focusing on policy issues associated with the proposal, "Keystone XL Pipeline Project: Key Issues" (CRS Report R41668), is also available here.

Advisory Committee on Childhood Lead Poisoning Prevention Votes to Adopt New Recommendations to Reduce Childhood Lead Poisoning

The federal Advisory Committee on Childhood Lead Poisoning Prevention for the Centers for Disease Control and Prevention (CDC) today voted to adopt new recommendations to reduce childhood lead poisoning. The recommendations are found here in a downloadable PDF document.  The CDC is expected to act on the Committee's recommendations within 90 days. If adopted, the new approach would eliminate the current blood lead "level of concern" level of 10 micrograms/deciliter. The standard would be replaced by a childhood BLL reference value of 5 micrograms/dL, based on the 97.5th percentile of the population BLL in children ages 1-5 to identify children and environments associated with lead-exposure hazards.

The Advisory Committee's recommendations are based on the weight of evidence that includes studies with a large number and diverse group of children with low BLLs and associated IQ deficits.  The Committee notes that adverse effects such as attention-related disorders and impaired academic achievement are reported at blood lead levels well below 10 micrograms/dL.  In addition, it reports new evidence that adverse health effects include cardiovascular, immunological, and endocrine effects. It concludes that "the absence of an identified BLL without deleterious effects combined with the evidence that these effects, in the absence of other interventions, appear to be irreversible, underscores the critical importance of primary prevention."

If the advisory committee's recommendations are adopted by the Centers for Disease Control, we can expect that a more stringent regulatory regime regarding environmental lead exposures will follow.

National Park Service Issues Draft Environmental Impact Statement on Susquehanna-Roseland 500kV Transmission Line

Update: The National Park Service has now published the Final Environmental Statement on the project. See our September 1, 2012 post for updated information.

The National Park Service has published its Draft Environmental Impact Statement (DEIS) for construction and right-of-way permit as requested by Pennsylvania Power and Light Electric Utilities Corporations (PPL) and Public Service Electric and Gas Company (PSE&G), in connection with their proposed Susquehanna-Roseland transmission line.  The project is more fully described in our previous post of January 21, 2010.

The National Park Service found that PPL's proposed route and all alternatives that would cross the Delaware Water Gap National Recreation Area would have adverse environmental impacts.  The DEIS concludes that the environmentally preferred alternative is "no action": to deny the request for the right of way and construction permit.

A public comment period including public meetings has started and will end on January 31, 2012. Comments can be submitted electronically at the NPS Planning, Environment and Public Comment page.

Three public hearings (6:00-9:00pm) will be held:

Tuesday, January 24, 2012 (snow date 1/31 if required) Fernwood Hotel and Resort U.S. 209 Bushkill, PA 18324

Wednesday, January 25, 2012 (snow date 2/1 if required) Stroudsmoor Country Inn - Ridgecrest RD#4 Stroudsmoor Road Stroudsburg, PA 18360

Thursday, January 26, 2012 (snow date 2/2 if required) Farmstead Golf and Country Club 88 Lawrence Road Lafayette, NJ 07848

EPA Orders Coal-Fired Portland Generating Station to Reduce Sulfur Dioxide Interstate Air Pollution

Portland Generating Station

The U.S. Environmental Protection Agency has ordered the coal-fired Portland Generating Station in Northampton County, PA to put an end to its interstate air pollution. In a 95-page decision issued on October 31, 2011, EPA ordered the plant, operated by GenOn REMA LLC (GenOn Energy), to reduce its sulfur dioxide emissions by 81 percent within three years.  The decision also establishes interim emission rate limits which the plant must meet within one year. The decision constitutes final rulemaking, and adds a new rule at 40 C.F.R. Section 52.2039. It has been reported that this is the first EPA rulemaking directed at a single pollution source. 

The EPA found that emissions of sulfur dioxide (SO2) from the Portland plant significantly contribute to nonattainment and interfere with maintenance of the 1-hour SO2 national ambient air quality standard (NAAQS) in New Jersey. The decision provides a detailed analysis of EPA's authority under Section 126 of the Clean Air Act to provide a remedy to downwind states subjected to pollution from out-of-state sources.  It also reviews the emissions data, air pollution dispersion modeling, available control technologies, and other technical issues supporting its decision.

UPDATE: The EPA decison was published in the November 7, 2011 Federal Register (76 Fed. Reg. 69052, et seq.) and is available at http://www.gpo.gov/fdsys/pkg/FR-2011-11-07/pdf/2011-28816.pdf.

EcoWatch: New National Environmental News Service

EcoWatch has launched its new national news service in partnership with Waterkeeper Alliance, the first media source to focus exclusively on news from more than 700 environmental organizations across the country. EcoWatch offers original content in its Insights column from national leaders in the environmental movement. It will provide nationwide and state-by-state environmental news, and content in five major areas: water, air, food, energy and biodiversity.

“The current assault on America’s environmental laws, like the Clean Water Act, creates a pressing need to educate and engage people to protect our infrastructure, the air we breathe, the water we drink, to provide our children with the same opportunities for dignity and enrichment as our parents gave us,” said Robert F. Kennedy, Jr. founder and president of Waterkeeper Alliance. “This website encourages people to be part of the solution and engage in democracy.”

The site is well-designed and content-rich, offering objective information and deep insight from voices we need to hear.

Chrin Landfill Agrees to Pay $114,00 DEP Fine for Odor & Air Violations

Chrin Brothers Sanitary Landfill has agreed to pay a $114,000 fine to the Pa. Department of Environmental Protection for odor, air pollution and waste management violations, according to an article in the Express-Times (Easton, PA).  It also agreed to withdraw an appeal of the fine which had been pending before the state Environmental Hearing Board. (We reported that appeal in our post of January 31.) In addition to paying the fine, Chrin also agreed to improve its waste and odor management practices. According to the article by reporter Colin McEvoy, "Chrin said the landfill will adopt new off-site odor-minimization procedures and implement twice-daily patrols to monitor the landfill perimeter for potential odors. The company will also instruct its haulers on proper management of particularly odorous loads to avoid problems during disposal, he said, and will deploy a rapid-response team to inspect those loads whenever they are accepted."  Chrin also agreed to give up any further appeal rights.

National Research Council Issues New Report: "America's Climate Choices"

The National Research Council released today a new report, "America's Climate Choices", the final volume of the "America's Climate Choices" suite of activities. The report examines the nation’s options for responding to the risks posed by climate change. The report concludes that it is imprudent to further delay actions to substantially reduce greenhouse emissions, and offers a series of recommendations for national policy.  The primary recommendation is for the nation to substantially reduce greenhouse gas emissions, with the "most effective strategy" to "begin ramping down emissions as soon as possible". The NAS recommendations also include mobilization for adaptation to climate change, including adaptation planning and implementation "at all levels of society".  

A PDF of the entire report can be downloaded for personal use.  It will make sobering reading.

Chesapeake Bay Foundation and Pennsylvania Environmental Council Issue New Proposal to Reform Pennsylvania Laws on Natural Gas Drilling

The Chesapeake Bay Foundation (CBF) and the Pennsylvania Environmental Foundation (PEC) have submitted a legislative proposal to the Corbett administration and state lawmakers "designed to help ensure safe and responsible Marcellus Shale drilling and gas extraction in Pennsylvania." The proposal sets forth detailed amendments to the Pennsylvania Oil and Gas Act  to confer additional authority to regulate and manage deep shale and unconventional drilling techniques that were not contemplated when the law was enacted.  The proposal was provided to Governor Corbett’s Marcellus Shale Commission and members of the Pennsylvania General Assembly.

The proposed amendments are based on the findings of a PEC report issued last year called “Developing the Marcellus Shale” which outline a series of environmental policy and planning recommendations for unconventional shale gas development.  The PEC/CBF press release states: "These amendments are aimed at restoring public confidence in the industry’s ability and commitment to responsible drilling and environmental compliance. The proposal includes 50 specific amendments to the Act which reform the permit process to allow for greater stakeholder input and set clear environmental protection standards for the hydraulic fracturing process and the infrastructure that should be required for shale gas extraction."

The organizations propose to split the gas well drilling permit process into two phases that require enhanced collection and review of site-specific data prior to approval. The proposal also calls for a number of tighter restrictions in the Pennsylvania Oil and Gas Act.

A copy of the press release can be found here. A PDF of the complete, detailed legislative proposal is here.

Energy Department To Revamp Hydraulic Fracturing Rules for Natural Gas Extraction

The New York Times reports that the Department of Energy, acting on orders from President Obama, has established an expert panel to revise safety and environmental standards for hydraulic fracturing (so-called "fracking"). Hydraulic fracturing involves high-pressure injection of fluids into underground shale formations to break open natural gas pockets as a technique for extraction of natural gas from deep wells. The Obama Administration's new energy policy, announced on March 30, 2011 at Georgetown University, significantly relies on increased natural gas production. Steven Chu, Energy Secretary, has requested the expert panel to issue immediate recommendations within 90 days, and a more comprehensive set of safety and environmental standards within three months.  The expert panel chairman is John Deutch, a former director of the Central Intelligence Agency and deputy defense secretary, and current director of Cheniere Energy, which operates a natural gas terminal and pipelines.

Hydraulic fracturing pours millions of gallons of toxic chemicals into the ground and into wastewater treatment systems, which in some cases are not designed to treat all of the contaminants. The New York Times article refers to "numerous documented cases" in which fracking fluids leaked into aquifers and contaminated drinking water.

Other members of the panel include former PADEP secretary Kathleen McGinty; Stephen Holditch, chairman of the department of petroleum engineering at Texas A&M University; Fred Krupp, president of the Environmental Defense Fund; Susan Tierney, former assistant secretary of energy for policy and Massachusetts secretary of environmental affairs; Daniel Yergin, chairman of I. H. S. Cambridge Energy Research Associates and author of “The Prize: The Epic Quest for Oil, Money and Power,” and Mark Zoback, a Stanford geophysics professor.

EPA Proposes Finding Northampton County PA Coal Power Plant Causes SO2 Air Pollution Violations in NJ

Portland Coal Power Plant

UPDATE

: On October 31, 2011 the EPA Issued its final response to the New Jersey Petition, finding that the coal-fired Portland Generating Station in Upper Mount Bethel Township, PA is emitting air pollutants in violation of the interstate transport provisions of the Clean Air Act. EPA found that the plant's SO2 emissions significantly contribute to nonattainment and interfere with maintenance of the 1-hour SO2 national ambient air quality standard (NAAQS) in New Jersey. The EPA is establishing emission limitations and compliance schedules to ensure that the plant will eliminate its significant contribution to SO2 pollution in New Jersey. See

our post of November 4, 2011

.

The U.S. EPA is proposing to formally find that the coal-fired Portland Generating Station in Upper Mount Bethel Township, Northampton County, Pennsylvania, is causing interstate air pollution in violation of the federal Clean Air Act.  It also proposes to impose emission limitations to force substantial reductions of sulfur dioxide emissions from the plant.

In its "Response to Petition from New Jersey Regarding SO2 Emissions from the Portland Generating Station", EPA proposes to issue a finding that emissions of sulfur dioxide (SO2) from the Portland Plant significantly contribute to nonattainment and interfere with maintenance of the 1-hour SO2 national ambient air quality standard (NAAQS) in New Jersey. This finding is proposed in response to a petition submitted by the State of New Jersey Department of Environmental Protection (NJDEP) on September 17, 2010. EPA is also proposing emission limitations and compliance schedules to significantly reduce SO2 emissions from the plant.

According to the NJDEP petition and the proposed EPA finding,emissions from the Portland plant are causing SO2 concentrations far in excess of the NAAQS of 196 micrograms/m3.  EPA states that these violations require an

81 percent reduction

in emissions from the Portland plant to reduce SO2 concentrations below the NAAQS.

EPA will receive comments on this proposed finding, which must be received on or before May 27, 2011. Submit comments, identified by Docket ID No. EPA-HQ-OAR-2011-0081, online at 

http://www.regulations.gov

, by email to: a-and-r-docket@epa.gov. Attention Docket ID No. EPA-HQ-OAR-2011-0081, or mail to: EPA Docket Center, EPA West (Air Docket), Attention Docket ID No. EPA-HQ-OAR-2011-0081, U.S. Environmental Protection Agency, Mailcode: 2822T, 1200 Pennsylvania Avenue, NW., Washington, DC  20460.

A public hearing will be held on April 27, 2011, in the Pequest Trout Hatchery and Natural Resources Education Center located in Oxford, Warren County, New Jersey 07863.

Appeals Court Rejects Attempt to Void Zoning Hearings Due to Environmental Advisory Council Involvement

UPDATE: May 5, 2011  In an order issued today, the Pennsylvania Supreme Court denied HYK Construction Company, Inc.'s petition for allowance of appeal of the Commonwealth Court's ruling. 

In an important decision for Pennsylvania's Environmental Advisory Councils (EACs), Pennsylvania's Commonwealth Court rejected a developer's attempt to void conditional use zoning hearings before a Board of Supervisors due to the involvement of the Township's EAC .

The November 19, 2010 decision in HYK Construction Company v. Smithfield Township (2047 CD 2009), involved an application to construct and operate a concrete batch plant. The EAC participated in the hearings, along with some 75 neighbors and residents.  The developer objected to the EAC's involvement, claiming that it showed that the township was biased and had a conflict of interest. After the Supervisors denied the developer's objections and allowed the EAC to participate, the developer filed a lawsuit in the Court of Common Pleas against the Township and the EAC.  The lawsuit sought an injunction to disqualify the Supervisors, prevent the EAC from participating, and to order the matter heard by an independent hearing examiner.  The EAC and Township argued that there was no conflict in the EAC's role in the hearings and that the Common Pleas Court lacked jurisdiction to hear the case.  The Common Pleas Court held that it had jurisdiction and granted relief to the developer. 

On appeal, the Commonwealth Court reversed the lower court's decision and ordered the developer's lawsuit dismissed. The Commonwealth Court determined that the Court of Common Pleas lacked jurisdiction to hear the case. The Court decided that such claims of bias and conflict had to be raised as part of the zoning proceedings and could not be the subject of a separate lawsuit. In addition, it held that it was improper for the lower court to hear the case without including all of the other parties to the conditional use hearing, and in a "clear violation of the Appllants' due process rights",  the lower court had improperly conducted a private, off-the-record investigation to determine bias. With respect to the EAC involvement, the Court stated that: "While EAC is funded by the Township and was granted party status by the Board, EAC is a separate and distinct entity from the Board. The requisite walls of division are in place to overcome any appearance of impropriety."

Finally, the Court rebuked the developer for its attempt to avoid the ordinary hearing and review process of the Pennsylvania Municipalities Planning Code:  "We believe HYK's equity action represents an improper attempt to circumvent the mandatory statutory review process. To allow equity jurisdiction to usurp the power of the Board would create infinite challenges to interlocutory determinations and defeat or, at the very least, disrupt the Commonwealth's structure for review of zoning decisions by local boards and governing bodies. If the courts became involved every time a party makes an allegation of bias, the courts — rather than the Board — would be reviewing conditional use applications... [W]e can find no justification for the trial court's exercise of equity jurisdiction in this matter."

NOTE: Charles W. Elliott represented the Smithfield Township Environmental Advisory Council in this case.

Rising Currents: Re-Visioning New York City Through the Lens of Climate Change

"Rising Currents", a current exhibition at the Museum of Modern Art presents a dazzling synthesis of environmental science, art, architecture and visionary design. The work, by five interdisciplinary teams of design and architectural firms, re-visions the urban landscape of New York City to confront a world altered by rising sea levels and storm surges induced by climate change.

The exhibit space dramatically presents a series of design ideas expressed through display boards, multimedia, physical models, and computerized data visualizations.

The design work is supported by a foundation of detailed scientific analysis, documented in Guy Nordenson's remarkable book, On the Water|Palisade Bay (a product of beautiful design in its own right - kudos to Lizzie Hodges). The teams used the tools of science - fluid dynamic modeling, geographic information systems, quantitative analysis of dynamic systems - to inform environmentally and socially sustainable landscape and infrastructural designs.

The resulting design strategies seek to offer protection to the urbanized spaces of Lower Manhattan and Palisade Bay from rising seas and increased storm intensity and frequency. In some cases, they do so by inviting the water to enter and to accommodate its presence through softened infrastructure and landscapes which "rethink the thresholds of water, land, and city". The design objectives include construction "of an archipelago of islands and reefs along the shallow shoals of the New York–New Jersey Upper Bay to dampen powerful storm currents as well as encourage the development of new estuarial habitats","revitalize the waterfront by designing a broad, porous, 'fingered' coastline which combines tidal marshes, parks, and piers for recreation and community development."

The visualization of these new spaces forces the viewer to re-evaluate the relationship between "natural" forces and human activity which now so dramatically influences them. This is an exhibit for the scientist, the artist, and the concerned citizen in each of us. A detailed exhibition blog provides more information. The exhibit runs through October 11, 2010.

(Exhibition photography © 2010 Armen Elliott Photography, www.armenphotography.com).

EPA Issues Final Rule "Tailoring" Permit Requirements for Greenhouse Gas Emissions

On May 13, 2010 EPA took one more regulatory action to address climate change and greenhouse gas (GHG) emissions, by issuing its final rule setting thresholds for GHG emissions that define when permits are required under the major EPA programs for stationary sources. These include the New Source Review Prevention of Significant Deterioration (PSD) and title V Operating Permit programs.

First Step (January 2, 2011–June 30, 2011). In the first step of this three-step rule, for the first 18 months, only sources currently subject to the PSD permitting program (i.e., those that are newly-constructed or modified in a way that significantly increases emissions of a pollutant other than GHGs) would be subject to permitting requirements for their GHG emissions under PSD. Projects with GHG increases of 75,000 tpy or more of total GHG, on a CO2e basis, would need to determine the Best Available Control Technology (BACT) for their GHG emissions. Similarly for the operating permit program, only sources currently subject to the program (i.e., newly constructed or existing major sources for a pollutant other than GHGs) would be subject to title V requirements for GHG.

Second Step (July 1, 2011 to June 30, 2013). Next, PSD permit requirements will cover for the first time new construction projects that emit GHG emissions of at least 100,000 tpy even if they do not exceed the permitting thresholds for any other pollutant. Modifications at existing facilities that increase GHG emissions by at least 75,000 tpy will be subject to permitting requirements, even if they do not significantly increase emissions of any other pollutant.  Similarly, operating permit requirements will apply to sources based on their GHG emissions even if they would not apply based on emissions of any other pollutant. Facilities that emit at least 100,000 tpy CO2e will be subject to title V permit requirements.  First-time Title V permittees are likely to be solid waste landfills and industrial manufacturers.

Third Step.  EPA commits to another rulemaking, to begin in 2011 and conclude no later than July 1, 2012. That action will take comment on an additional step for phasing in GHG permitting, and may discuss whether certain smaller sources can be permanently excluded from permitting. EPA also plans to explore a range of opportunities to reduce permit burdens and to streamline permitting actions.

A copy of the EPA fact sheet is available at: http://www.epa.gov/nsr/documents/20100413fs.pdf

A copy of the final rule (515 pp.) is available at: http://www.epa.gov/nsr/documents/20100413final.pdf