EPA Announces New Rules to Govern Carbon Capture and Sequestration

EPA has come out with several new rules pertaining to sequestration of carbon dioxide and protection of underground sources of drinking water.  EPA is encouraging carbon sequestration as a way to deal with its perception that it is contributing to global climate change.  Of particular interest is the development of a new Safe Drinking Water Act Class VI underground injection control (UIC) well category for wells used to sequester carbon dioxide. Here is EPA's summary of what it did, and hyperlinks for follow up:

EPA Finalizes Rules to Foster Safe Carbon Storage Technology:

As part of efforts to reduce barriers to widespread deployment of carbon capture and sequestration, an important set of technologies to combat climate change Today, the U.S. Environmental Protection Agency (EPA) finalized two rules related to the capture and sequestration of carbon dioxide. Carbon capture and sequestration (CCS) technologies have the potential to enable large emitters of carbon dioxide, such as coal fired power plants, to significantly reduce greenhouse gas emissions. This technology allows carbon dioxide to be captured at stationary sources like power plants and large industrial operations and injected underground for long-term storage in a process called geologic sequestration.

The new rules aim to protect drinking water and to track the amount of carbon dioxide that is sequestered from facilities that carry out geologic sequestration. Together, these actions are consistent with the recommendations made by President Obama’s interagency task force on this topic and help create a consistent national framework to ensure the safe and effective deployment of technologies that will help position the United States as a leader in the global clean energy race.

In August 2010, President Obama’s Interagency Task Force on Carbon Capture and Storage, co-chaired by the EPA, delivered a series of recommendations to the president on overcoming the barriers to widespread, cost-effective deployment of CCS within 10 years. The task force concluded that the rules being announced today were an important part of the strategy to promote development of this technology. CCS can play an important role in domestic greenhouse gas emissions reductions while preserving the option of using coal and other abundant domestic fossil energy resources.

Drinking Water Protection:

EPA finalized a rule that sets requirements for geologic sequestration of carbon dioxide, including the development of a new class of injection well called Class VI, established under EPA’s Underground Injection Control (UIC) Program.  The rule requirements are designed to ensure that wells used for geologic sequestration of carbon dioxide are appropriately sited, constructed, tested, monitored, and closed. The UIC Program was established under the authority of the Safe Drinking Water Act.

Greenhouse Gas Reporting:

EPA also finalized a rule on the greenhouse gas reporting requirements for facilities that carry out geologic sequestration. Information gathered under the Greenhouse Gas Reporting Program will enable EPA to track the amount of carbon dioxide sequestered by these facilities. The program was established in 2009 under authority of the Clean Air Act and requires reporting of greenhouse gases from various source categories in the United States.

More information on the geologic sequestration rule: http://water.epa.gov/type/groundwater/uic/wells_sequestration.cfm

More information on the greenhouse gas reporting final rule: http://www.epa.gov/climatechange/emissions/ghgrulemaking.htm

West Virginia DEP Announces Mandatory Electronic Permitting and Reporting for Water Permits

The West Virginia DEP Division of Water and waste Management has sent out the following notice regarding mandatory epermitting that will go into effect next year.

In an effort to more efficiently handle permit applications, the West Virginia Department of Environmental Protection’s Division of Water and Waste Management will soon shift to all electronic permitting for water resources permits and NPDES discharge monitoring reporting.

The DWWM plans to mandate electronic permitting

(ePermitting) by July 1, 2011. More detailed information, including training dates for the new system, will be released at a later time. The WVDEP’s Division of Mining and Reclamation mandated ePermitting on Jan. 1, 2009.

Currently, most DWWM permit applications are prepared by a private entity and submitted to the WVDEP as a hard-copy bundle of forms and documents. Using ePermitting, permit applicants can submit all of the same information to the WVDEP via the Web in a secure environment. Permit applications can be prepared, delivered, reviewed, corrected and approved using Web-based technologies that tie together industry, regulators and the public in a common interface. The only technical requirements are an Internet connection, an email account, and Internet browser software such as Microsoft’s Internet Explorer, version 7.0 or higher.

Beginning in July 2011, all discharge monitoring reporting and the following permits will require ePermitting: NPDES (National Pollutant Discharge Elimination System) Industrial Individual; NPDES Municipal Individual (sewage collection and treatment systems); Vehicle Washing Establishments (car washes); Hydrostatic Testing Water; Sewage-General less than 50,000 gallons per day (GPD); Multi-Sector Industrial Storm Water; Wastewater Discharges from Highway or Municipal Maintenance Facilities; Groundwater Remediation; Water Treatment Plants; Underground Injection Control (sewage, industrial and storm water); Disposal of Sewage Sludge to POTW (publicly owned treatment works); Land Application of Sewage Sludge; Sewage- General 600 GPD or less Individual Residence or Small Business; and Storm Water Associated with Construction Activity.

For more information, contact Mavis Layton, of the DWWM’s permitting branch, at 304-926-0499, ext. 1025 or Mavis.L.Layton@wv.gov.

Fourth Circuit Upholds Decision Requiring DEP to Issue NPDES Permits to Itself

The Fourth Circuit has upheld Judge Irene Keeley's decision that the WV Department of Environmental Protection must issue NPDES permits to itself when it assumes responsibility for reclamation at abandoned coal mines. Here is how the 4th Circuit opened its decision: 

("WVDEP") appeals an injunction requiring it to obtain

National Pollutant Discharge Elimination System permits

under the Clean Water Act ("CWA"),

see 33 U.S.C. § 1342

et seq.

The injunction was based on the district court’s conclusion

that the plain language of the CWA and applicable EPA regulations

require such a permit.

The trial court’s ruling was correct. The text of the CWA,

as well as the corresponding regulations issued by the Environmental

Protection Agency, confirm that the permit requirements

apply to anyone who discharges pollutants into the

waters of the United States. Under the CWA, it does not matter

that a mining company may have created the conditions

, for reclamation efforts at abandoned coal mining sites.

that call for reclamation. What matters is that an entity, private

or public, is currently discharging pollutants into the

waters of the United States. In fact, the statute contains no

exceptions for state agencies engaging in reclamation efforts;

to the contrary, it explicitly includes them within its scope.

At bottom, WVDEP’s arguments stem from little more than

policy disagreements with the statutory text. Finding that to

be an insufficient basis for deviating from the law as written,

we affirm the judgment of the district court.

The Court was unpersuaded by  arguments that requiring the DEP to obtain permits from itself was contrary to the intent of the Clean Water Act, or that enforcing against itself was a practical impossibility.

The decision can be found here.  A story on the decision can be  found in the AP report in the Gazettte

DEP Proposes Certification for Water Quality Samplers

The West Virginia DEP Division of Water and Waste Management has proposed a certification system for those persons who take samples of wastewater to determine compliance with wastewater discharge permits. A meeting was held early last month to discuss how the system might be structured.  It has not received a warm welcome from industry, who don't see any need for the certification.  The following description of the history of the proposal came in from William Chambers of Acacia Environmental, who wrote it shortly before the first meeting:

A discussion regarding the certification of samplers first began within a committee formed by the WVDEP in 1995, formed to discuss certification of laboratories performing analytical work for statutory programs within the purview of the WVDEP. The results of the meetings during 1995 resulted in legislation establishing the laboratory certification program; however, the field sampler certification program was dropped from consideration. Again in February 2003 the WVDEP sponsored another meeting to discuss a sampler certification program. The meeting again failed to gain support for the program and the issue has remained dormant until announcement of this recently scheduled meeting.

According to Dan Arnold, the certification of field samplers would assist in removing questions regarding the collection and handling of samples. The program envisioned would provide standardized procedures for sampling in accordance with professional standards that includes documentation of the sample collection.   The goal is to obtain more accurate data being reported by the laboratories and result in better decisions regarding each site. Mr. Arnold pointed out that the adjoining states of Pennsylvania and Virginia are working on some component of a field sampler certification program.

If a program for certification would be developed by the WVDEP, a certification would be required for each type of sampling, such as: monitoring wells, surface water, soil, soil gas, air, etc.

EPA Discusses Chesapeake Bay Restoration Plans for West Virginia

Tom Boggs has sent in reports of EPA's meetings with  citizens in the Eastern Panhandle who are interested in the effect that the Chesapeake Bay renewal effort will have on them.  EPA is proposing to limit discharges of sediment and nutrients into the Chesapeake Bay, in order to restore it to its former health.  That will mean some additional controls on discharges from WV municipalities, agriculture, and other sources of nutrients.  Here is the report from the Journal, and the report from WV Public Radio

WV Supreme Court Affirms Rights of Mineral Owners

On November 3, 2010, the West Virginia Supreme Court of Appeals released its opinion in Cabot Oil & Gas Corporation, et al. v. Randy Huffman, et al., Nos. 35508, 35509, 35510 and 35511 (November 3, 2010) (per curiam), affirming the ruling of the Circuit Court of Logan County, which overruled the DEP’s denial of well work permit applications filed by Cabot for drilling within the confines of Chief Logan State Park.

The Court held that a 1960 deed from the mineral owner, the Lawson Heirs, Inc., was clear and unambiguous in reserving to the Lawson Heirs the right to produce oil and gas in the future. The Court further held that a 1961 statute enacted by the West Virginia Legislature which prohibited the Director of the DNR from allowing the “exploitation of minerals” within state parks had no preclusive effect upon the requested permits and thus the DNR and the DEP did not have the authority to prevent the Lawson Heirs, and their lessee, Cabot, from locating wells within the State park. The Court also rejected arguments by several environmental groups that Cabot would be prohibited from drilling in the park because federal funds had been allocated by the Department of Interior for the park, and federal law prohibited the use of the lands for anything other than public outdoor recreation uses. The Court upheld the sanctity of deeds and written contracts reserving surface uses to the mineral owner.

The opinion is an important one for mineral owners and lessees who hold reserved mineral estates under public lands. A full copy of the opinion can be obtained from the West Virginia Supreme Court’s website (http://www.state.wv.us/wvsca/Fall2010.htm). Cabot was represented by Timothy M. Miller of Robinson & McElwee. For more information, contact Timothy M. Miller at 304-347-8336, or tmm@ramlaw.com.