Energy and Environment Monitor

EPA’s Science Advisory Board Critiques EPA Assessment of Hydrofracking Impacts on Water Resources

August 17, 2016

In 2009, Congress asked EPA to examine the relationship between hydraulic fracturing and drinking water resources. In June 2015, EPA released for external review a draft report entitled “Assessment of the Potential Impacts for Oil and Gas on Drinking Water Resources.”  The Executive Summary observed that the Assessment “synthesizes available scientific literature and data to assess the…

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 Invokes Deliberative Process to Avoid Producing Documents in Clean Water Rule Litigation

August 1, 2016

We’ve previously written about the challenge to EPA’s controversial “Clean Water Rule” currently pending before the Sixth Circuit Court of Appeals here and here.

To briefly recap the litigation, various states and industry groups (“Plaintiffs”) filed challenges to the Clean Water Rule in both the United States district courts and courts of appeal. The federal Joint…

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…

The Problem with Peer Review. A Standard that Doesn’t Always Translate Well in the Media or Courtroom

July 11, 2016

Most reputable scientific journals require that articles be “peer reviewed” before publication. Under this process, articles are submitted to a journal and anonymous “peers” (who have expertise in the subject matter) review the articles.  Articles are then accepted, rejected or revised to address the comments of the peer reviewers. 

The process is sensible. Certainly, scientific…

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…

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…

WVU Research Undermines USEPA Test Method for Aluminum

June 27, 2016

Aluminum is among the most common elements found in the Earth’s crust. Soil eroded by flowing water invariably discharges aluminum.  For surface coal mining, this represents an engineering and technical challenge because rainfall and snow melt must be collected and channeled into ponds for sediment to settle before the water is discharged to a stream.  On every particle of discharged…

Northern District Decisions Add Uncertainty to Subsidence Law

June 24, 2016

In Schoene v. McElroy, the Federal District Court for the Northern District of West Virginia recently issued a series of unpublished opinions calling into question the ability of mine operators to rely on severance deeds as a legal basis for employing longwall miners. Additionally, the Court abandoned the long-standing rule in West Virginia that the less costly option between repair of subsidence…

Tenth Circuit Vacates District Court NEPA Rulings on Mine Permit Modifications, but Only After Finding Appeals Were Moot

June 23, 2016

In 2015, a district court in Colorado ruled that OSM had failed to discharge its NEPA obligations in considering applications to modify existing surface mining permits sought by Colowyo Coal Company and Trapper Mining, Inc.  The two mines at issue were the primary fuel suppliers for a power plant.  The court ruled that OSM had improperly failed to solicit public comment on its…

Murray Energy Seeks Review of Additional Documents in Jobs Lawsuit Against EPA

June 7, 2016

We have previously reported about Murray Energy’s lawsuit against EPA in the Northern District of West Virginia.  There, Murray claims that EPA has failed to conduct studies on the impacts of its rules and enforcement policies on coal industry jobs pursuant to Section 321(a) of the Clean Air Act.  EPA filed a motion for summary judgment in early May.  Murray claims that EPA has…