Energy and Environment Monitor

Court Allows Pipeline Opponents to Challenge Clean Water Act Permits Directly in Circuit Courts of Appeal

August 11, 2016

The Natural Gas Act (“NGA”) of 1938 grants the Federal Energy Regulatory Commission (“FERC”) exclusive authority to regulate sales and transportation of natural gas in interstate commerce. To that end, Section 7 of the NGA empowers FERC to authorize the construction and operation of interstate transportation facilities—i.e., pipelines.  FERC does so by determining whether a project serves the…

EPA Proposes Amendments to NPDES Procedural Rules

July 28, 2016

“A man always has two reasons for doing anything -- a good reason and the real reason.” J.P. Morgan

Whenever an agency proposes to change the procedures it follows to make decisions, it must offer a good reason for the change. When an agency proposes to make multiple changes in its procedures, there is almost certainly a real reason for its proposal. This is why EPA’s May 18 (81 FR31344) proposed…

Fourth Circuit Rejects Sierra Club’s Health Claims in Mining Permit Appeal

July 14, 2016

The United States Court of Appeals for the Fourth Circuit has unanimously upheld the Army Corps of Engineers’ issuance of a Clean Water Act § 404 permit to Raven Crest Contracting, LLC, a subsidiary of White Forest Resources, Inc.

On August 10, 2012, the Corps issued a § 404 “dredge and fill permit” to Raven Crest for its Boone North No. 5 Surface Mine in Boone County, West Virginia. The Ohio…

Do You Have a Permit for that Reclaimed Valley Fill? The Sierra Club Says You Need One

July 7, 2016

During surface mining, rock and dirt (known as “overburden” or “spoil”) is removed to access coal seams. This rock and dirt swells, leaving the mining operator with excess material after mining and regrading.  In the steep slopes of Appalachia, the only place to safely store this excess material is in valleys and hollows in the form of valley fills.

Typically, the valley fill material is…

How the Federal Government Is Coming after Water, and Whether It Will Get It

April 5, 2016

In February, the U.S. EPA and U.S. Geological Survey (USGS) jointly released a draft technical report entitled “Protecting Aquatic Life from Effects of Hydrologic Alteration.”  This 92 page text summarizes the received wisdom among the regulatory agencies. They include the following observations: “flow regime plays a central role in supporting healthy aquatic ecosystems and the ecological…

EPA Proposes to Expand its Accidental Release and Risk Management Program Rules under Section 112(r) of the Clean Air Act

March 10, 2016

EPA has released a pre-publication copy of a proposed rule to expand its risk management program under § 112(r)(7) of the Clean Air Act.  EPA has long maintained a risk management program (“RMP”) under § 112(r) of the Clean Air Act for “stationary sources” that hold “regulated substances” in excess of threshold quantities. See 40 C.F.R. Part 68.  These facilities have been…

States and Developers File Amicus Briefs Supporting Review of Jurisdictional Determinations by Corps of Engineers

March 7, 2016

Two groups of states, one led by West Virginia and one by North Dakota, have filed amicus briefs in the U.S. Supreme Court supporting landowners claiming a right to challenge jurisdictional determinations by the Corps of Engineers.  Likewise, amicus briefs were submitted by the National Association of Homebuilders and the American Farm Bureau Federation. 

Historically, developers and…

Justice Department Brings Welcomed Candor to WOTUS Litigation

November 2, 2015

Two weeks ago, two of our Lexington colleagues wrote about the Court of Appeals for the Sixth Circuit staying the “Clean Water Rule.” The EPA and the Corps of Engineers promulgated this regulation to define what constitutes “waters of the United States” (WOTUS). Although the agencies have gone to extraordinary lengths to defend the regulation as a mere “clarification,…

A “Whirlwind of Confusion”: Sixth Circuit Imposes Nationwide Stay of EPA’s New Clean Water Rule

October 15, 2015

The United States Court of Appeals for the Sixth Circuit recently imposed a nationwide stay of the EPA’s controversial new “Clean Water Rule.”  States and industry alike have viewed the Rule, effective on August 28, 2015, as an impermissible expansion of Clean Water Act jurisdiction.  The Act governs discharges into “navigable waters,” vaguely defined by Congress to mean “waters of…

Links in the Chain: The Evidential Significance of a Discharge Monitoring Report

August 31, 2015

A recent decision of the Eight Circuit Court of Appeals provides a useful reminder about the importance of the Discharge Monitoring Reports (DMR). The message is simple: you are bound by what the report states, and disavowal in a civil penalty action is nearly impossible.

A DMR is filed by every person who holds an NPDES permit for the discharge of a pollutant from a point source. A discharge that…

Links in the Chain: The Evidential Significance of a Discharge Monitoring Report

August 31, 2015

A recent decision of the Eight Circuit Court of Appeals provides a useful reminder about the importance of the Discharge Monitoring Reports (DMR). The message is simple: you are bound by what the report states, and disavowal in a civil penalty action is nearly impossible.

A DMR is filed by every person who holds an NPDES permit for the discharge of a pollutant from a point source. A discharge…

WVDEP Issues Order Requiring Additional Reporting From Coal Prep Plants

April 22, 2015

WVDEP April 2015 Order

On April 15, 2015, the West Virginia Department of Environmental Protection (“WVDEP”) mailed out a generic order to all of the approximately 90 coal preparation plants in West Virginia.  The Order requires prep plants to identify all chemical components of the products used at the plant as well as the outlets that could potentially receive these…