Supreme Court Allows Appeal of EPA Clean Water Act Compliance Order

Good news for everyone that has ever faced a Clean Water Act compliance order.  In Sackett v. EPA, the US Supreme Court unanimously ruled that recipients of CWA compliance orders are allowed to appeal them under the federal Administrative Procedures Act.

The Sacketts are landowners who began construction on a parcel of land, until they received a compliance order from the EPA telling them they were filling a wetland in violation of Section 404  of the CWA and must stop and return the land to its original state.  If not, EPA might (or might not) bring a civil or criminal action against them, with fines of tens of thousands of dollars per day.  The Sacketts could do as EPA demanded, or could wait for EPA to bring the lawsuit, at which time they might be facing  millions of dollars in potential accrued penalties. 

If this situation were analogized to a poker game, EPA would be kicking in only its ante, and forcing the Sacketts to bid higher and higher, secure in the knowledge that if it (EPA) won, it would collect the pot, but if the Sacketts won, they wouldn't even get their ante back. With that kind of stacked game, it's no surprise that most people cave when faced with a compliance order.

The Sacketts tried to appeal EPA's finding that they were filling a wetland. EPA took the position it always has, that compliance orders are not final actions under the APA, and that the right to appeal its determination that the Sackett's property is a wetland  must wait until it decides whether to file suit.  An Idaho US District Court and the Ninth Circuit (motto: "Often Wrong, Never in Doubt") agreed with EPA.

The Supreme Court rejected EPA's position, expressing concern  about EPA turning the screws on individuals in this fashion. As Justice Alito said in a concurring opinion, "[i]n a nation that values due process, not to mention private property, such treatment is unthinkable."  (Justice Alito also made a plea for Congress to better define "waters of the United States," something that is long overdue.)  

This is the holding from the  Syllabus:

(a) The APA provides for judicial review of "final agency action for which there is no other adequate remedy in a court." 5 U. S. C. §704.The compliance order here has all the hallmarks of APA finality. Through it, the EPA "determined" "rights or obligations,"
(b) The Clean Water Act is not a statute that "preclude[s] judicial review" under the APA, 5 U. S. C. §701(a)(1). The APA creates a "presumption favoring judicial review of administrative action." The Sacketts may bring a civil action under the APA to challengethe issuance of the EPA’s order. Pp. 4–10.Bennett v. Spear, 520 U. S. 154, 178, requiring the Sacketts to restore theirproperty according to an agency-approved plan and to give the EPA access. Also, "legal consequences . . . flow" from the order, ibid., which, according to the Government’s litigating position, exposes theSacketts to double penalties in future enforcement proceedings. The order also severely limits their ability to obtain a permit for their fillfrom the Army Corps of Engineers, see 33 U. S. C. §1344; 33 CFR§326.3(e)(1)(iv). Further, the order’s issuance marks the "consummation" of the agency’s decisionmaking process, Bennett, supra, at 178, for the EPA’s findings in the compliance order were not subject tofurther agency review. The Sacketts also had "no other adequateremedy in a court," 5 U. S. C. §704. A civil action brought by the EPAunder 33 U. S. C. §1319 ordinarily provides judicial review in suchcases, but the Sacketts cannot initiate that process. And each day they wait, they accrue additional potential liability. Applying to the Corps of Engineers for a permit and then filing suit under the APA if that permit is denied also does not provide an adequate remedy for the EPA’s action. Pp. 4–6.Block v. Community Nutrition Institute, 467 U. S. 340, 349. While this presumption "may be overcome by inferences of intent drawn from the statutory scheme as a whole," ibid., the Government’s arguments do not support an inference that the Clean Water Act’s statutory scheme precludes APA review. Pp. 7–10

Information about the case, including briefs, an audio transcript of the hearing, and the opinion, can be found here.  Here's an analysis by Lyle Denniston at the excellent SCOTUS blog.  Mr. Denniston notes that the Supreme Court granted relief to the Sacketts that it denied to GE, which last term tried to get the Court to allow it to challenge a compliance order from EPA

Court Rejects EPA Denial of 404 Permit for Mingo Logan Coal Co.

The DC Circuit Court of Appeals slapped EPA's hands today, announcing that the agency cannot veto a Clean Water Act Section 404 permit once it is issued.  Here's a summary of the court's decision in Mingo Logan Coal Co. v. US EPA:

 

Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984). But it is undeniable that the provision in question is awkwardly written and extremely unclear. So, the Court will go on to rule as well that even if the absence of a clear grant of authority to EPA to invalidate a permit is seen as a gap or ambiguity in the statute, and even if the Court accords the agency some deference, EPA’s interpretation of the statute to confer this power on itself is not reasonable. Neither the statute nor the Memorandum of Agreement between EPA and the Corps makes any provision for a post-permit veto, and the agency was completely unable to articulate what the practical consequence of its action would be. Therefore, the Court will grant plaintiff Mingo Logan’s motion for summary judgment [Dkt. # 26] and deny defendant’s cross-motion [Dkt. # 46].

The Court concludes that EPA exceeded its authority under section 404(c) of the Clean

Water Act when it attempted to invalidate an existing permit by withdrawing the specification of certain areas as disposal sites after a permit had been issued by the Corps under section 404(a). Based upon a consideration of the provision in question, the language and structure of the entire statutory scheme, and the legislative history, the Court concludes that the statute does not give EPA the power to render a permit invalid once it has been issued by the Corps. EPA’s view of its authority is inconsistent with clear provisions in the statute, which deem compliance with a permit to be compliance with the Act, and with the legislative history of section 404. Indeed, it is the Court’s view that it could deem EPA’s action to be unlawful without venturing beyond the first step of the analysis called for by

Ethane Cracker Could Face Air Permitting Problems

Joe Kessler, an engineer with the West Virginia Department of Environmental Protection's Division of Air Quality,  said in a presentation on Wednesday that an ethane cracker might  have difficulty getting an air permit in several areas in West Virginia that are nonattainment. Ken Ward reports here.

Re-Issued Section 404 Nationwide Permits Now Effective

Yesterday the Huntington District of the US Army Corps of Engineers issued a public notice  providing information about the new Section 404 Nationwide Permits and the regional conditions that have been imposed by the Huntington and Pittsburgh Districts in West Virginia.  Under Section 404 of the Clean Water Act, the Corps is responsible for issuing permits for discharges of dredge or fill material to waters of the United States.  The Corps issues general permits, called Nationwide Permits, or NWPs, and each Corps District can impose additional requirements that apply in that District.  Then each state can impose conditions that are designed to protect water quality in that state, known as the 401 water quality certification.  Here is how the Corps explained the process that brought us to yesterday's notice:

On February 21, 2012, the Corps of Engineers published, in the Federal Register, the final rule for the administration of its nationwide permit program regulations under the Rivers and Harbors Act of 1899, Section 404 of the Clean Water Act, and the Marine Protection, Research and Sanctuaries Act. The rule became effective on March 19, 2012.

An integral part of the Corps’ regulatory program is the concept of nationwide permits (NWPs) for minor activities. NWPs are activity specific, and are designed to relieve some of the administrative burdens associated with permit processing for both the applicant and the Federal government. The NWPs, published in the February 21, 2012, Federal Register, Issuance of Nationwide Permits (77 FR 10184), are issued by the Chief of Engineers, and are intended to apply throughout the entire United States and its territories. The Corps Districts representing

West Virginia have imposed regional conditions on the NWPs that are applicable throughout the entire state. For convenience, all NWPs with the appropriate regional, general and special conditions are attached.

I also received the following from Jason Bostic of the WV Coal Association.  I can't improve on what he said, so I'll just pass it along as he wrote it.  

Attached to this message is a Public Notice issued yesterday by the Huntington and Pittsburgh Districts of the U.S. Army Corps of Engineers (Corps) regarding the recently-revised Clean Water Act (CWA) Section 404 Nationwide or General Permits (NWPs).  The attached document represents the final-effective regional conditions that will be implemented by the Huntington and Pittsburgh Districts on NWPs within the State of West Virginia.  For the mining-specific NWPs (21, 49 and 50), the final regional conditions mirror the restrictions for the national use of the permits.  The new NWPs became effective for West Virginia yesterday with the publication of the attached notice from the Huntington and Pittsburgh Districts.

While the permits are final and can be used in West Virginia, they will require an individual water quality certification under CWA Section 401 from the West Virginia Department of Environmental Protection (WV DEP).  The state agency has yet to propose its CWA 401 Certification requirements for public notice and comment.  Until these state certifications are final, all use of the NWPs will require individual state certifications.      

On February 21, 2012 the Corps published a Federal Register notice announcing the “new” programmatic NWPs.  The final versions of the NWPs contained new restrictions on their use for mining-related activities:  

Nationwide Permit	Limits	Pre-Construction Notification (PCN) Threshold	Changes in 2012	Other Information
21 Surface Coal Mining	--  1/2 acre of nontidal waters of U.S. --  300 linear feet of stream bed (DE can waive for intermittent and      Ephemeral streams AFTER agency consultation) --  Cannot be used to authorize valley fill construction	all activities	Added 1/2-acre limit and limits losses of stream beds to 300 linear feet unless district engineers waives in writing for intermittent and ephemeral streams. Agency coordination required for proposed waivers of the 300 linear foot limit. Does not authorize valley fills. Added definition of “valley fill.”	Activities that were verified under the 2007 NWP 21 may be reauthorized without the limits, if the permittee submits a written request to the DE for reauthorization by February 1, 2013. Expansions in waters of the U.S. are not eligible for reauthorization. To be reauthorized, the district engineer must issue a written verification.
49 Coal Remining	Limited to sites that were previously mined for coal, but new mining may be conducted in adjacent areas if the newly mined area is less than 40 percent of the area being remined plus any unmined area needed for reclamation	all activities	Clarified how the 40% of newly mined area is determined. Corps will review the SMCRA determination regarding the amount of previously unmined area necessary for the reclamation and make an independent determination of the amount needed.	Permittee must demonstrate net increase in aquatic resource functions through reclamation; activities must be authorized by the Department of Interior, Office of Surface Mining , or by states with approved programs under Title IV and V of the Surface Mining Control and Reclamation Act of 1977 or are currently being processed as part of an integrated permit processing procedure; prospective permittee must receive written authorization prior to commencing the activity
50 Underground Coal Mining	--  1/2 acre of nontidal waters of U.S. --  300 linear feet of stream bed (DE can waive for intermittent and      Ephemeral streams AFTER agency consultation)	all activities	Added 1/2-acre limit and a 300 linear foot limit for any activity causing the loss of stream bed. The 300 linear foot limit may be waived for intermittent and ephemeral streams through a written determination made by the DE. Agency coordination required for proposed waivers of the 300 linear foot limit.	Activities must be authorized by the Department of Interior, Office of Surface Mining, or by states with approved programs under Title V of the Surface Mining Control and Reclamation Act of 1977 or are currently being processed as part of an integrated permit processing procedure. If reclamation required, a copy of the plan must be submitted with PCN. Does not authorize coal preparation and processing activities outside of the mine site. Prospective permittee must receive written authorization prior to commencing the activity

The Huntington and Pittsburgh Districts originally proposed a unique set of regional conditions for the new NWPs (see attached Public Notice from April 2011).  However, the final public notice has simply adopted the programmatic thresholds announced in the February 2012 Federal Register Notice. 

WV DEP is currently working on its draft CWA Section 401 certifications. 

New Storm Water Plan Template From EPA

The following comes from EPA, which has put out a template for preparing storm water pollution prevention plans (SWPPPs) for construction sites.  The WV DEP, not EPA, is responsible for storm water permitting in West Virginia, and has its own permit, which is based on EPA's prior permit for storm water from construction activity. This template will not, by itself, allow you to prepare a  SWPPP that is acceptable to DEP, but it represents a good start and provides helpful information.

Template for Construction Stormwater Pollution Prevention Plans Available Online EPA has posted a new template for construction operators to use in developing stormwater pollution prevention plans, which  are site-specific documents  required as part of EPA's new 2012 Construction General Permit.  The template is designed to help construction operators develop a stormwater pollution prevention plan that is compliant with the minimum requirements of the new permit.  The template allows operators to customize the document to the needs of the site, and includes tables and other fields that are easy to fill out.  For questions about the template, or the permit in general, please send inquiries to CGP@epa.gov.

For additional information on stormwater pollution prevention plans for construction activities and to view a copy of the template: http://cfpub.epa.gov/npdes/stormwater/swppp.cfm. 

For additional information on EPA's 2012 CGP: http://cfpub.epa.gov/npdes/stormwater/cgp.cfm.

Shell Announces Option to Build Ethane Cracker in Pennsylvania

FOR IMMEDIATE RELEASE: MARCH 15, 2012
SHELL SIGNS AGREEMENT TO EVALUATE PETROCHEMICAL SITE IN PENNSYLVANIA
Houston – Shell Chemical LP (Shell) signed a land option agreement with Horsehead Corporation to evaluate a site in the US Appalachian region for a potential petrochemical complex. The complex includes an ethane cracker that would upgrade locally produced ethane from Marcellus Shale gas production. The site is located in Potter and Center Townships in Beaver County near Monaca, Pennsylvania.

This positive development marks another phase as Shell continues to assess the commercial feasibility of a petrochemical complex in the Appalachian region. The next steps for this project include additional environmental analysis of the preferred Pennsylvania site, further engineering design studies, assessment of the local ethane supply, and continued evaluation of the economic viability of the project.

“We are very pleased to have signed this site option agreement,” said Dan Carlson, General Manager, New Business Development, Shell Chemicals. “This is an important step for the project, and we look forward to working with the communities in Pennsylvania, and gas producers across Appalachia, as we continue our efforts to develop a petrochemical complex.”

Shell looked at various factors to select the preferred site, including good access to liquids rich natural gas resources, water, road and rail transportation infrastructure, power grids, economics, and sufficient acreage to accommodate facilities for a world scale petrochemical complex and potential future expansions.

In addition to an ethane cracker, Shell is also considering polyethylene (PE) and mono-ethylene glycol (MEG) units to help meet increasing demands in the North American market. Much of the PE and MEG production would be used by industries in the northeast.

As an integrated energy company and a leader in worldwide gas technology, Shell has an array of long-term options to monetize natural gas. This includes extracting ethane and other natural gas liquids for petrochemicals production; shipping solutions for LNG (liquefied natural gas); proprietary gas-to-liquids technology to produce fuels, lubricants and chemicals; and LNG for heavy duty vehicles, marine and rail transport.

Office of Oil and Gas Webpage for Horizontal Wells

      The Department of Environmental Protection’s Office of Oil and Gas has launched a webpage that contains information specifically related to horizontal drilling as defined by the Horizontal Drilling Act that was passed by the state Legislature in December.

As part of the Act, the Legislature required the DEP to create the page so citizens could obtain information about the location of proposed horizontal wells and give them the opportunity to comment on those permit applications.

Currently, the page offers links to items that will be further developed as permit applications are received by the agency. Links to pages that allow citizens to submit or review comments about specific permit applications, as well as a link to a tool that helps them find the location of a proposed well, are included.

“The page will continue to grow and change as more permit applications are submitted to the agency,” said James Martin, Chief of the Office of Oil and Gas. “Soon, after we populate the site with applications that have been received, people will be able to see a list with information such as the applicant, where the well is located, the formation it targets, whether the well has been completed and the date the permit was issued.”

Under the new legislation, one of the first steps operators have to take is placing a Class II Legal notice in local newspapers at least 10 days prior to submitting an application.

“As an added public notice option, people can go to this page and sign up for an email notification whenever a permit is received or issued by the Office of Oil and Gas,” Martin said.

The site can be found at:

http://www.dep.wv.gov/oil-and-gas/Horizontal-Permits/Pages/default.aspx

The Government's Role In Technological (and Economic) Development

Mike Shellenberger and Ted Norhaus have an article in the San Francisco Chronicle about government support for basic research. Here's a short summary with a link to the story.  They explain how basic government research led, years after the work was done, to substantial economic growth.  Here's a taste:

Heretical as it may sound, market competition has not been the primary driver of world-changing innovations. There was no market for microchips when the Air Force and later NASA in the 1950s and 1960s contracted with companies to make microchips -- and loaned them money to build factories. It would take until the 1980s for personal computers to take off, and until 1990 for their increases in labor productivity to translate into economic growth (accounting for much of the post-1990s economic boom).

Same story for the Internet. In the 1960s, there was no commercial interest to link computer networks. But the DoD wanted to make it easy for its researchers to communicate, and in 1968 contracted with BBN (now part of Raytheon) to create the protocols for computers networks to efficiently route information in packets. It took 25 years for the Internet to become commercially viable, and until the early 2000s for the Internet to add 0.25 to 0.5 percent to annual U.S. economic growth.

West Virginia Geothermal Energy Conference To Be Held May 22

This is a notice I received about the first-ever West Virginia Geothermal Energy Conference.  A year or so ago there was an interesting press release from, I believe, Southern Methodist Univ., that said that WV had the greatest geothermal energy potential in the East.
The web link below provides information regarding the upcoming West Virginia Geothermal Energy Conference, being held May 22nd, 2012 in Flatwoods, WV. This event is sponsored by the West Virginia Division of Energy, in partnership with the West Virginia Geological and Economic Survey, and is being hosted by Marshall University. This is a first-time event for the State, and is a first step in understanding the potential for future geothermal energy production and use in WV. There is no cost for attending this one-day event, but we are asking folks planning to attend to register for conference facility and lunch planning purposes. Please use the following website to learn more about the conference, including conference topics and hotel information, conference contacts for more information, and to register to attend, if interested.

http://www.marshall.edu/cegas/events/wvgec/

A final conference agenda is currently being compiled, and will be available soon.

George Carico, P.G.
Environmental Manager
Marshall University Center for Environmental, Geotechnical and Applied Sciences
WV Brownfields Assistance Center
One John Marshall Drive
Huntington, WV 25755-2585
304/696-5456

carico@marshall.edu

Yes In My Backyard

I was corresponding yesterday with someone about the West Virginia garbage wars of the late 80's and early 90's, during which there was great moral outrage against the prospect of "out-of-state garbage" being dumped in West Virginia, and fervent opposition (including from my church)  against a large landfill in McDowell County. The environmentalists didn't seem to understand that, in order to be able to afford the extensive liners, monitoring and other environmental protections that we should (and do) demand of our landfills, we need to bring in large amounts of garbage for which fees can be charged. West Virginia simply doesn't produce the garbage to support lots of little local landfills. Furthermore, the tipping fees, or taxes that the garbage haulers pay, go to help pay for closure of old landfills that weren't properly designed or operated. 

So today we have a situation where the DEP was reportedly trying to stop a hauler from taking waste to Ohio because the fees are needed in West Virginia.  (To be fair, the DEP wasn't fanning flames against out-of-state garbage 20 years ago.)  And we have resource recovery companies that are coming into the state, offering to pay money for the right to "mine" all that old garbage, and reuse 90% of it.  If we had taken in more garbage years ago, we could make more money from it in the future.

And then I read this from Forbes about a community that wants to be the nuclear waste repository for the nation. Here's a teaser from the article's beginning:

Christopher Helman, Forbes Staff


There’s a secure solution to America’s nuclear waste problem: bury it under Carlsbad, New Mexico. The locals are ready — if only Washington would get out of the way.

Unlike thousands of other places in America, where the thought of trucking in barrels of radioactive garbage from atomic weapons plants would lead to marches, face paint and, invariably, pandering politicians (witness Nevada’s stalled Yucca Mountain project), Carlsbad has a different take. “It’s really a labor of love,” says Forrest. “We’ve proven that nuclear waste can be disposed of in a safe, reliable way.”

This attitude—“Yes in my backyard,” if you will—has brought near permanent prosperity to this isolated spot that until recently had no endemic economic engine. Unemployment sits at 3.8%, versus 6.5% statewide and 8.5% nationally. And thanks to this project—euphemistically known as the Waste Isolation Pilot Plant, or WIPP—New Mexico has received more than $300 million in federal highway funds in the past decade, $100 million of which has gone into the roads around Carlsbad. WIPP is the nation’s only permanent, deep geologic repository for nuclear waste. The roads have to be good for the two dozen trucks a week hauling in radioactive drums brimming with the plutonium-laden detritus of America’s nuclear weapons production.

Water Quality Bill Moves Toward Approval

The DEP and WV Coal Association are supporting a bill that would help clarify the narrative water quality standard for coal mining permits.  It's an appropriate change.   Story here from the State Journal.

Blankenship Reports On Step 3 of the Tailoring Rule

The Tailoring Rule is EPA's way of shoe-horning GHG regulations into the Clean Air Act. Ordinarily, many of the Clean Air Act rules only apply to sources that emit 100 or 250 tons per year of certain air pollutants, but if EPA were to do that with carbon dioxide, it (or the states) would end up having to permit hundreds of thousands or millions of new sources, which it doesn't have the resources to do.  So it took some liberties and changed the applicability thresholds for GHGs. Anne Blankenship has posted the following about Step 3 of  EPA's Tailoring Rule, EPA's latest contortion with regard to GHGs:

The EPA has released its proposed Step 3 of the Tailoring Rule for GHG emissions. It is proposing to maintain the applicability thresholds for GHG-emitting sources


at the current levels established in Steps 1 and 2. EPA is also proposing two streamlining approaches in an attempt to improve the administration of GHG Prevention of Significant Deterioration (PSD) and title V permitting programs.

The first proposal addresses the implementation of GHG plantwide applicability limitations (PALs). It proposes to allow permitting authorities to issue GHG PALs on either a mass-basis (tpy) or a carbon dioxide equivalent (CO2e)-basis and to allow PALs to be used as an alternative approach for determining whether a project is a major modification and whether GHG emissions are subject to regulation. The second proposal would create the regulatory authority for the EPA to issue synthetic minor limitations for GHGs in areas subject to a GHG PSD Federal Implementation Plan (FIP). EPA also discusses its progress in evaluating the suitability of other streamlining approaches and solicits further comment.

Comments on the proposal must be received on or before April 20, 2012.The proposed rule in the federal register can be accessed at : http://www.gpo.gov/fdsys/pkg/FR-2012-03-08/pdf/2012-5431.pdf

EPA’s Fact Sheet: http://www.epa.gov/nsr/ghgdocs/Step3FactSheet.pdf

On the same topic, the DC Court of Appeals heard challenges to the Endangerment Finding and Tailoring Rule last week. Here's a report from Pace University on the argument. Here's the position of the National Association of Manufacturers, to get an idea of one business entites' take on the matter.

US Army Corps of Engineers Presentation on Regulation of Oil and Gas Operation

Yesterday (March 7) the US Army Corps of Engineers, in conjunction with the West Virginia Oil and Natural Gas Association (WVONGA),  presented an excellent overview of its regulatory jurisdiction and enforcement authority under Section 10 of the Rivers and Harbors Act of 1899 and Section 404 of the Clean Water Act.  Susan Fields was gracious enough to post the Power Point of that presentation on the Huntington District's website, and you can access it here. 

One of the most important points we learned is that EPA has exercised its authority under the Clean Water Act to take the lead in all oil and gas-related enforcement matters. If you violate Section 404 or Section 10 you will be dealing with EPA, not the Corps, although the Corps will still be involved to some extent.

GE, Chesapeake To Facilitate Natural Gas Vehicle Fueling

According to theWheeling Intelligencer, General Electric and Chesapeake are partnering to provide compressed natural gas fueling systems in West Virginia:

"CNG in a Box is a 'plug and play' solution available to businesses and fueling station retailers. Once purchased, the unit provides the technology needed to install a CNG fueling station in any location with access to a natural gas pipeline," said Kent Wilkinson, vice president of Natural Gas Ventures, a new company now acquiring natural gas assets.

"In West Virginia specifically, we hope retailers show interest given the state's abundant supply of natural gas," Wilkinson added when asked whether any of the boxes would be placed in the Ohio Valley.

State tax credits are available for refueling stations and for some cars that are CNG compatible. However, I believe the tax credits are not available to those who want to add a CNG option to a standard gasoline-powered car.  You have to convert completely to CNG, or buy a car that is already set up as a dual fuel vehicle, to get the credit.

Methane Hydrates - Fuel of the Future?

The new sources of energy that are being found continue to astound me. Right now we're in the midst of the Marcellus Shale gas boom, with  future production from the Utica Shale expected soon.  But there's even more unconventional gas out there, almost ready to be tapped. The latest gas source is methane hydrates, which have been known about  for years, but recovering them has always been prohibitively expensive. The US Geological Survey had this to say, 20 years ago:

Hydrates store immense amounts of methane, with major implications for energy resources and climate, but the natural controls on hydrates and their impacts on the environment are very poorly understood.

Gas hydrates occur abundantly in nature, both in Arctic regions and in marine sediments. Gas hydrate is a crystalline solid consisting of gas molecules, usually methane, each surrounded by a cage of water molecules. It looks very much like water ice. Methane hydrate is stable in ocean floor sediments at water depths greater than 300 meters, and where it occurs, it is known to cement loose sediments in a surface layer several hundred meters thick.

Evidently, they store huge amounts of energy:

The worldwide amounts of carbon bound in gas hydrates is conservatively estimated to total twice the amount of carbon to be found in all known fossil fuels on Earth.

This estimate is made with minimal information from U.S. Geological Survey (USGS) and other studies. Extraction of methane from hydrates could provide an enormous energy and petroleum feedstock resource. Additionally, conventional gas resources appear to be trapped beneath methane hydrate layers in ocean sediments.

The worldwide amounts of carbon bound in gas hydrates is conservatively estimated to total twice the amount of carbon to be found in all known fossil fuels on Earth.


This estimate is made with minimal information from U.S. Geological Survey (USGS) and other studies. Extraction of methane from hydrates could provide an enormous energy and petroleum feedstock resource. Additionally, conventional gas resources appear to be trapped beneath methane hydrate layers in ocean sediments.

Recently the Department of Energy, ConocoPhilips and Japan Oil have been been funding an evaluation of a way to produce methane hydrates using CO2.

The goal of this project is to define, plan, and conduct a field trial of a methane hydrate production methodology whereby carbon dioxide (CO₂) molecules are exchanged in situ for the methane (CH₄) molecules within a hydrate structure, releasing the methane for production. The objective is to evaluate the viability of this hydrate production technique and to understand the implications of the process at a field scale.

Exciting times.

Shell Launches Preemptive Attack On Environmental Groups

Shell has filed a declaratory judgment action that names a number of environmental groups that are expected to challenge its plans for drilling in the Alaskan arctic.   Shell expects opposition to its spill response plan, which will  have to undergo public review, and wants to deal with that now rather than later. This from Alaska Public Radio:

Shell Alaska has taken an unusual step in asking a federal court Wednesday for a declaratory judgment on their Arctic spill response plan that was approved by the department of Interior in February. Shell is seeking this judgment against a number of environmental and conservation groups in an effort to end run the litigation that will likely challenge the process that was used to approve their plan. Shell Alaska spokesman Curtis Smith says the company wants a judge to consider sooner rather than later the merits of the spill response plan approval process.

Lots of us will be watching this with interest. Ordinarily, to get an environmental permit you file an application, there is public comment, and sometimes a legal challenge thereafter.  The legal challenge occasionally alleges that the process by which the permit was granted was improperly conducted.  Evidently Shell is trying to short circuit that particular argument, although it is unclear to me whether that would work. It would seem to me that the other appeal issues could string out the permit-issuing process to the same degree.  If it works, though, expect others to try the same sort of pre-emptive action.

Here is Shell's explanation of what it is doing.

Welch Settles CSO Violations Lawsuit

I've heard people complain about the increase in sewer rates in Charleston in the last few years, as the city upgrades its system to better respond to wet weather events (i.e., heavy rains that run into  the city's sewer system, overwhelming the treatment plant), but the money is needed to prevent combined sewer overflows, or CSOs. When  there's too much precipitation for the sewage system to handle, the water is not sent to the treatment plant, but runs straight through the treatment plant, carrying raw sewage with it.  That was the problem in Welch, as discussed below in an EPA press release.  It's not clear exactly how Welch will be upgrading its treatment system, although presumably it will develop more storage.  That's what Washington DC will be doing, digging huge tunnels to store storm water until after the rainfall event, when it can be gradually introduced into the treatment system.
Date: 03/01/2012

Subject: EPA News Release (Region 3): Welch, W.Va. Settles Clean Water Act Violations

Contact: EPA: David Sternberg, 215-814-5548 sternberg.david@epa.gov

WVDEP: Kathy Cosco 304-926-0499 ext. 1331 kathy.cosco@wv.gov

Welch, W.Va. Settles Clean Water Act Violations

(PHILADELPHIA – March 1, 2012) The U.S. Environmental Protection Agency and West Virginia announced today that they have settled violations of the Clean Water Act involving sewage overflows in Welch, W.Va.

Under the settlement filed by the U.S. Justice Department in federal district court, the City of Welch has agreed to implement a long term control plan to eliminate combined sewer overflows (CSOs) at an estimated cost of $16 to $23 million. As part of this plan, Welch will completely separate its sanitary wastewater and storm sewers.

In addition, Welch will develop and implement a plan for upgrading its treatment plant and monitoring system. Once implemented, the steps that Welch is required to take under this agreement will eliminate CSOs resulting in the discharge of approximately 400,000 gallons of raw sewage annually. Welch will also pay a $5,000 penalty for past violations, split between the U.S. and West Virginia.

The settlement announced today is the third addressing West Virginia municipalities' wastewater violations in recent months. EPA and West Virginia also settled a CSO case with Elkins, W.Va. in October 2011 and a sanitary sewer overflow case with Fort Gay, W.Va. in January 2012.

Untreated sewage contains many types of organisms which can cause illness. People coming in contact with these organisms can suffer adverse health effects ranging from minor ailments such as sore throats, stomach cramps and diarrhea, to life-threatening illnesses such as cholera, dysentery, infectious hepatitis and severe gastroenteritis. Children, the elderly, people with weakened immune systems and pregnant women are more at risk of illness.

The CSO complaints, filed with the settlements, alleged numerous overflows from the municipalities' combined sewer systems. These sewer systems are designed to collect and convey rainwater runoff, domestic sewage, and industrial wastewater in the same pipe to a sewage treatment plant, where it is treated before discharge to a water body.

However, especially during periods of heavy rainfall or snowmelt, the water volume may exceed the capacity of the sewer system or treatment plant -- causing discharges of untreated wastewater directly to nearby waterways. These CSOs contain not only stormwater but also untreated human and industrial waste, toxic materials, and debris.

For more information on CSOs: http://cfpub.epa.gov/npdes/home.cfm?program_id=5