With Proposed Hazardous Waste Exemption, USEPA Shows Support for CCS

This post was written by David Wagner.

As we previewed a few months ago, the U.S. Environmental Protection Agency (USEPA) recently proposed a rule to exclude CO2 metatrader 4 demo download for pc streams from Resource Conservation and Recovery Act (RCRA) regulations if they meet certain conditions, including injection for the purpose of geologic sequestration into specific wells regulated under the Safe Drinking Water Act. The proposed rule, which was published on August 8, comes on top of an earlier Safe Drinking Water Act regulation finalized in December 2010 that sets requirements for geologic sequestration, including the development of a new class of injection well called Class VI, established under USEPA’s Underground Injection Control (UIC) program. The UIC Class VI requirements are designed to ensure that wells used for geologic sequestration of CO2 streams are appropriately sited, constructed, tested, monitored, and closed in a manner that ensures USDW protection.

In developing the proposed rule, USEPA determined that CO2 streams captured at power olymp trade website plants and industrial facilities destined for a UIC Class VI well for the purposes of geologic sequestration would be a RCRA solid waste, as it is a “discarded material” as defined in RCRA § 1004(27). In its discussion of the rule, USEPA indicated that, while there is little information available to conclude that CO2 streams would qualify as a RCRA subtitle C hazardous waste, there is the potential for some CO2 streams to meet the definition of a hazardous waste. USEPA concluded that the management of CO2 streams under the proposed conditions does not present a substantial risk to human health or the environment, and will encourage the geologic sequestration of CO2, in a safe and environmentally protective manner.

The proposed exclusion, if finalized, may apply to generators, transporters, and owners or operators of treatment, storage, and disposal facilities engaged olymp trade registration in the management of CO2 streams that would otherwise be regulated as hazardous wastes under the RCRA subtitle C hazardous waste regulations as part of geologic sequestration activities. This includes entities in the following industries: operators of CO2 injection wells used for geologic sequestration; and certain industries identified by their North American Industry Classification System (NAICS) code: oil and gas extraction facilities (NAICS 211111); utilities (NAICS 22); transportation (NAICS 48-49); and manufacturing (NAICS 31-33).
 

Power Plants, Petroleum Refineries and Landfills Take Note: USEPA Electronic Greenhouse Gas Reporting Tool Launches

This post was written by Jennifer Smokelin.

By September 30 of this year, 28 industrial sectors -- including power plants, petroleum refineries and landfills -- will be required to submit their 2010 greenhouse gas data under the U.S Environmental Protection Agency's (USEPA) Greenhouse Gas Reporting Program. You may recall that the September 30, 2011 deadline was pushed back from March 31. To facilitate the reporting, USEPA launched a new and improved greenhouse gas reporting tool this week known as the electronic Greenhouse Gas Reporting Tool, or e-GGRT, that will allow the top emitters in the country to submit their 2010 greenhouse gas pollution electronically. USEPA expects to receive 2010 greenhouse gas data from approximately 7,000 large industrial greenhouse gas emitters, including power plants, petroleum refineries and landfills. To provide a sense of the scale of the program, these emitters are responsible for 70 percent of the United States' greenhouse gas emissions. The Agency plans to publish non-confidential greenhouse gas data collected through the tool by the end of 2011

USEPA has indicated that, under the GHG Reporting Program, entities required to submit data must register with e-GGRT no later than 60 days before the reporting deadline, or August 1, 2011. If you have missed the August 1 deadline, USEPA still strongly encourages all reporting entities to register as soon as possible, and has stated that a good faith effort to register as soon as possible after the August 1 deadline "will be taken into consideration". This cryptic statement is open to interpretation and if you have not registered and wish to use e-GGRT, we recommend you register immediately then confirm with USEPA that your registration is accepted before relying on the registration to report using e-GGRT.

Inceasing Costs in Marcellus? A New Application of Recorders' Fee is Proposed in Pennsylvania

This post was written Nicolle Bagnell and Ariel Nieland.

With Pennsylvania courts looking to increase administrative costs, it may get more expensive to be involved in Marcellus Shale leasing activity. On July 30, 2011, the Administrative Office of Pennsylvania Courts (AOPC) published an announcement that it intends to recommend that the state Supreme Court amend current financial regulations already providing for, inter alia, recorders of deeds to impose a fee of $23.50 on the recording of documents for purposes of funding the Judicial Computer System/Access to Justice/Criminal Justice Enhancement Account (JCS/ATJ/CJEA). The amendments will specify that the $23.50 JCS/ATS/CJEA fee should be imposed on each individual property interest conveyed in a filing, including all individual leases conveyed in a single blanket assignment.

The reasoning behind the proposed amendment is the inconsistent application of fees by recorders' offices, specifically with regard to the filing of oil and gas leases, assignments, and "bundled" memorandum filings (a/k/a blanket assignments). The AOPC has explained that under the proposed amendments, a "separate fee shall be imposed for each such referenced, incorporated or listed property transfer at the time of filing.''

The public may submit suggestions, comments, or objections concerning the proposal no later than August 30, 2011 by contacting: Administrative Office of Pennsylvania Courts, ATTN: Financial Regulations Comments, 1515 Market Street, Suite 1414, Philadelphia, PA 19102, financialregscomments@pacourts.us.

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).

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Marcellus Shale Report Released by Pennsylvania

This post was written by Nicolle Bagnell.

As mentioned in our earlier blog post, Pennsylvania Governor Tom Corbett's Marcellus Shale Advisory Commission issued their written report today. The 137 page document identifies the numerous recommendations including enacting an impact fee, increasing setbacks from public water sources, increasing fines for environmental violations and minimizing disruption to surface area in state forest lands. A copy of the full report can be found at this link.

What to Know about Aggregation in Marcellus Shale

This post was written by David Wagner.

Aggregation is the process of determining whether emissions from multiple locations should be aggregated into a single source for air permitting purposs. In the Marcellus Shale play, it's a big environmental issue and Reed Smith environmental attorneys are focused on it in a few ways. Reed Smith represents a defendant in an aggregation case and we also examined aggregation issues in a teleseminar yesterday. The teleseminar, presented with AECOM, discussed U.S. Environmental Protecton Agency guidance, federal aggregation cases, state aggregation cases and some of the pitfalls of aggregation. Feel free to review the slides and the audio from the event.

Update on Pennsylvania Governor's Marcellus Shale Commission Recommendations

This post was written by Ariel Nieland and Nicolle Snyder Bagnell.

In Pennsylvania, Governor Corbett's Marcellus Shale Commission met on Friday, July 15, 2011 to review and vote on a list of recommendations compiled by various government, industry and environmental stakeholders over the past four months regarding various regulatory issues in Pennsylvania. The Commission ultimately approved a set of 96 recommendations and is now in the process of preparing a report to be presented to Gov. Corbett this Friday, July 22, 2011. The list of recommendations will be made available to the public only after the Governor has reviewed them.

According to news reports from those in attendance at the meeting on Friday, some of the major topics and recommendations included the following:

  • Enacting an impact fee (no specific amount recommended)
  • Allowing for forced pooling
  • Increasing setbacks from wells to 500 ft. and up to 1000 ft. near public water sources
  • Extending a well operator's presumptive liability for pollution or water loss from 1,000 feet to 2,500 feet.
  • Doubling the fines for environmental violations
  • Creating an intrastate pipeline system
  • Encouraging development of ethylene processing plants
  • Minimizing disruption to surface area in state forest lands
  • Evaluating the need to reconnect railroad spurs to aid the industry
  • Locating national gas fueling stations at set distances along highways
  • Advocating a regional approach to work force training
  • Requiring well pads to have a 911 address
  • Providing for specialized firefighter training under the state fire commissioner's office
  • Having a "one-stop" agency to expedite the gas pipeline permitting process
  • Increasing penalties for violations of the Oil and Gas Act
  • Creating a public health registry to track health of residents living in proximity to wells

The Long and Winding Rule: USEPA's Cross-State Air Pollution Rule the Latest to Address Interstate Air Pollution

This post was written by Steve Nolan.

In previous posts, we have reported the vacation of the Clean Air Interstate Rule (CAIR) in 2008, CAIR's subsequent, temporary resuscitation later that year, and the 2010 release of the draft Transport Rule which was proposed to replace CAIR. On July 7, 2011, the U.S. Environmental Protection Agency (USEPA) released the final version of this rule, now renamed the Cross-State Air Pollution Rule (Cross-State Rule).

The Cross-State Rule is specifically directed at emissions from electric generating units in classes 2211, 2212 and 2213 of the North American Industry Classification System. Like CAIR, the new rule is intended to help downwind states achieve USEPA's National Ambient Air Quality Standards (NAAQS) for fine particulate matter and ozone. Also like CAIR, the new Cross-State Rule actually regulates sulfur dioxide (a chemical precursor of fine particulate matter) and nitrogen oxides (a chemical precursor of both fine particulate matter and ozone) generated by upwind states.

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MSW Landfills Take Note: CO2 Emissions from Bioenergy and Other Biogenic Sources Issued 3-Year Deferral from Clean Air Act Permitting Requirements

This post was written by Jennifer Smokelin.

As anticipated in an earlier blog post and discussed during a recent Reed Smith teleseminar, on July 1 the U.S. Environmental Protection Agency (USEPA) issued a final rule to defer biomass from greenhouse gas (GHG) regulation for three years so that USEPA can properly study biomass emissions and make a considered determination regarding regulation of GHG emission from biomass. Over this time period, municipal solid waste landfills releasing GHGs from decomposing biomass and industrial plants that burn woody biomass will not need permits before starting construction or expansion and will not need Title V operating permits. However, facilities that co-fire biogenic and fossil fuels would still be required to count the fraction of CO2 associated with fossil fuel combustion towards their Prevention of Significant Deterioration (PSD) applicability determination. Further, the deferral would not apply to other GHGs (e.g., methane) or non-greenhouse gas pollutants that are otherwise subject to PSD and Title V permitting at landfills or industrial facilities.

In the final rule, USEPA will defer for three years the consideration of biogenic CO2 emissions under the Tailoring Rule. To facilitate the deferral, USEPA revised the definition of the term “subject to regulation” to exclude biogenic CO2 emissions from stationary sources. The deferral would apply only to CO2 emissions from the combustion and decomposition of biologically-based material. And such emissions will not count towards the PSD applicability determination for greenhouse gases. Some emissions that would be deferred by the rule include:

  • CO2 generated from the biological decomposition of waste in landfills, wastewater treatment or manure management processes;
  • CO2 from the combustion of biogas collected from biological decomposition of waste in landfills, wastewater treatment or manure management processes;
  • CO2 from fermentation during ethanol production or other industrial fermentation processes;
  • CO2 from combustion of the biological fraction of municipal solid waste or biosolids;
  • CO2 from combustion of the biological fraction of tire-derived fuel; and
  • CO2 derived from combustion of biological material, including all types of wood and wood waste, forest residue, and agricultural material.

For municipal solid waste landfill owners, it's worth restating the obvious: because CO2 generated from the biological decomposition of waste in landfills and CO2 from the combustion of biogas collected from biological decomposition of waste in landfills is deferred for three years, this deferral could be significant to your operation.

New Federal Interim Rule Requires Changes To Bring About More Green Contracting

This post was written by Lorraine Campos and Amy Koch.

Coming soon: Most of the U.S. government's future acquisitions will have to be green and environmentally sustainable. In this Reed Smith alert, we discuss a recently issued interim rule (PDF) that would require federal agencies to conduct their environmental, transportation, and energy-related activities in an environmentally, economically, integrated, efficient, and sustainable manner. The interim rule would seek to lower greenhouse gas emissions from sources owned or controlled by federal agencies and otherwise promote the creation of a "clean energy economy." In addition, the interim rule would require federal agencies to leverage agency acquisitions to foster markets for sustainable technologies, materials, products, and services by ensuring that 95 percent of new contract actions, including task and delivery orders, for products and services are energy-efficient, water-efficient, biobased, environmentally preferable, non-ozone depleting, contain recycled content, or are non-toxic or less-toxic alternatives. Federal agencies are also required to implement high-performance sustainable building design, construction, renovation, repair, commissioning, operation and maintenance, management, and deconstruction practices. On May 31, 2011, the U.S. Department of Defense, the General Services Administration, and the National Aeronautics and Space Administration issued this interim rule amending the Federal Acquisition Regulation (FAR) by implementing Executive Orders 13514 and 13423.

The interim rule (PDF) should further open up opportunities for contractors with sustainable technologies, materials, products, and services to sell to federal agencies. Contractors with strong views on these FAR changes should prepare comments and submit them prior to August 1, 2011, to ensure that their views are considered. Reed Smith attorneys, including the authors of this post and more detailed alert, are tracking changes to the FAR as they evolve.

U.S. Supreme Court Issues Opinion in AEP v. Connecticut

This post was written by Jennifer Smokelin.

Yesterday, in American Electric Power v. Connecticut, the U.S Supreme Court held that the Clean Air Act, which authorizes the U.S. Environmental Protection Agency (USEPA) to limit emissions of carbon dioxide from power plants, displaces any federal common law right to seek abatement of carbon dioxide emissions from power plants. Somewhat surprisingly, the U.S. Supreme Court, because it split 4-4, let stand the Second Circuit Court of Appeals' determination that it had jurisdiction over nuisance claims arising from carbon dioxide emissions. The split means that courts in that circuit continue to have jurisdiction to hear nuisance claims arising from carbon dioxide emissions. The ruling, however, does not apply to other federal circuits and thus it remains an open question outside the Second Circuit.

The case was remanded to the Second Circuit on the issue of plaintiffs' claims under state nuisance law. The Second Circuit did not reach those claims because it held that federal common law governed. In light of the Supreme Court's holding that the Clean Air Act displaces federal common law, the availability of a state lawsuit depends, inter alia, on the preemptive effect of the federal Act, and the issue of preemption was left for consideration on remand. Stay tuned.
 

In Case You Missed It, Here Are Slides and Audio from Reed Smith's June 16 Climate Change Event

This post was written by David Wagner.

Last week, we discussed recent international and U.S. developments related to greenhouse gas regulation, and here are the slides and audio from the event. In particular, we addressed:

  • How the uncertain future of the Kyoto Protocol and the Clean Development Mechanism affect U.S. business (You can also find details on this issue here)
  • What your business needs to know for compliance and planning related to step 2 of USEPA's greenhouse gas Tailoring Rule
  • Implications of the court's "cap and trade" ruling in Association of Irritated Residents v. California Air Resources Board
  • Developments in state courts including upcoming decisions on insurers' obligation to defend and/or indemnify covered insureds for public nuisance, and other types of claims based on third-party allegations of damages from climate change
     

How the Uncertain Future of the Kyoto Protocol and the Clean Development Mechanism Affects Business

This post was written by Jennifer Smokelin.

After a mid-year status meeting in early June, it is clear that the 192 or so parties to the international climate change convention's 17th Conference of the Parties (COP17) in South Africa this November have their work cut out for them…and the future of the Kyoto Protocol and the Clean Development Mechanism (CDM) is in limbo.

Following the mid-year meeting, most pundits agree that, after the Kyoto Protocol's first compliance period ends in 2012, a "regulatory gap" will result. In other words, there will a period of some unknown duration where there will be no legally binding, concrete greenhouse gas (GHG) mitigation commitments applicable to parties to the Kyoto Protocol. This will be the case even if, by some feat of negotiations, the parties are able to reach agreement regarding post-2012 compliance under the Kyoto Protocol in South Africa. A "regulatory gap" will occur because an agreement by COP17 parties would still require ratification by all parties to the United Nations' climate change convention (UNFCCC) and the one year time period until the first compliance period ends in 2012 is not enough time for ratification (keep in mind that ratification of the Kyoto Protocol itself took 7 years!).

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USEPA Delays Proposed Greenhouse Gas Emissions Rule for Power Plants

This post was written by Jennifer Smokelin.

On June 13, the U.S. Environmental Protection Agency (USEPA) indicated that it would take additional time to review input on proposed greenhouse gas emissions limits on New Source Performance Standards for new and existing power plants. The Agency stated that it will propose the new rules by September 30, 2011, instead of the original deadline of July 26. USEPA still plans to finalize the rules in late May 2012.

New Source Performance Standards are technology-based emissions limits issued under Section 111 of the Clean Air Act that apply to new and in some cases existing facilities in a specific industrial sector. NSPSs are a set of rules distinct from (and potentially broader than) the Tailoring Rule, the set of regulations now in effect to control greenhouse gases from large industrial sources. The proposed NSPS will apply to all sources within a source category and, in this case, the source category is power plants. Currently, under the Tailoring Rule, USEPA only requires the largest industrial facilities to obtain prevention of significant deterioration permits under new source review provisions of the Clean Air Act when they expand or make modifications that increase emissions. Those permits require the facilities to install best available control technology, which is determined for each individual facility, while the NSPS impose uniform emissions limits for the industry nationwide.

The extension will also not affect USEPA's deadline to propose performance standards for petroleum refineries by December 15. As we discussed on the blog in December 2010, this is a separate settlement agreement that requires USEPA to issue the final petroleum refinery rule by November 15, 2012 (See American Petroleum Institute v. EPA, D.C. Cir., No. 08-1277, settlement reached December 23, 2010).

Proposed Pennsylvania Legislation Imposes Natural Gas Impact Fee

This post was written by Nicolle Bagnell and Ariel Nieland.

Last week, Pennsylvania State Senator Joe Scarnati (R) expanded upon a bill he introduced last month, Senate Bill 1100, which proposes to levy a $10,000 base impact fee on natural gas drillers in the Marcellus Shale. Senator Scarnati's expansions provided additional details for how the money collected from the fee would be distributed and how penalties for non-compliance would be assessed. Under the new version of SB 1100, the majority of the funds obtained from the fee are to be distributed among local counties, municipalities, and conservation districts. A portion of the funds would also be used to address statewide infrastructure and environmental impacts. The bill provides for impact fees to be retroactively assessed, meaning that drillers would be responsible for paying fees for last year's production. Bill opponents have expressed concern that the bill would chill development in the Marcellus. The Pennsylvania Senate Environmental Resources and Energy Committee will consider SB 1100 on June 14.