April 21, 2016
In a unanimous decision, the Virginia Supreme Court affirmed on Thursday that a conveyance of “coal and minerals” includes coal-bed methane (CBM). The decision represents an incremental expansion of the Court’s 1936 Warren v. Clinchfield Coal decision which held that severance deed which conveyed “coal and minerals” included conventional oil and gas. The plaintiff/appellant in the present case…
April 11, 2016
In the April 7, 2016 Federal Register, EPA proposed to add a site in Clarksburg, West Virginia to National Priorities List. The NPL is intended to guide EPA in determining which sites containing hazardous substances warrant further investigation and remediation under CERCLA.
According to a press release by EPA Region 3, the North 25th Street Glass and Zinc site in Clarksburg consists of…
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…
March 31, 2016
The West Virginia Department of Environmental Protection’s (“WVDEP”) Division of Air Quality (“DAQ”) recently issued two General Permits regulating air pollution in the oil and gas industry, both of which have been challenged by the West Virginia Oil and Natural Gas Association (“WVONGA”) as exceeding the Agency’s authority. During the public comment process, DAQ dismissed complaints about…
March 31, 2016
The West Virginia Department of Environmental Protection’s (“WVDEP”) Division of Air Quality (“DAQ”) recently issued two General Permits regulating air pollution in the oil and gas industry, both of which have been challenged by the West Virginia Oil and Natural Gas Association (“WVONGA”) as exceeding the Agency’s authority. During the public comment process, DAQ dismissed complaints about…
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…
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…
February 25, 2016
New criteria and policy was announced on February 11 by the U.S. Fish & Wildlife Service (“F&WS”) for designating “critical habitat” under the Endangered Species Act. The agency announced two changes in its regulations (81 Fed. Reg. 7214-7226; 81 Fed, Reg. 7414-7440) and adopted one new policy (81 Fed. Reg. 7226-7248). Collectively, these changes will provide the agency considerably…
February 18, 2016
Surface owners have the right of “subjacent support”—to have their surface left intact—unless that right has been waived. In West Virginia, the right of support can be waived expressly (by saying that mineral owner has no obligation to support the surface and no liability for failing to support it) or by necessary implication (by granting all of the coal and right to remove all of the…
February 16, 2016
On January 29, 2016, The United State District Court for the Middle District of North Carolina denied Duke Energy Carolinas, LLC’s (“Duke”) interlocutory appeal of its order denying Duke’s motion to dismiss a Clean Water Act (“CWA”) citizen suit. Duke argued that, before the law suit proceeded further, the Fourth Circuit should weigh in on two issues regarding claims of unpermitted discharges…
February 16, 2016
On January 29, 2016, The United State District Court for the Middle District of North Carolina denied Duke Energy Carolinas, LLC’s (“Duke”) interlocutory appeal of its order denying Duke’s motion to dismiss a Clean Water Act (“CWA”) citizen suit. here. Duke argued that, before the law suit proceeded further, the Fourth Circuit should weigh in on two issues regarding claims of unpermitted…
February 10, 2016
The Obama Administration finalized the “Clean Power Plan” rule for existing coal-fired electric generating plants on October 23, 2015. 80 FR 64662 (Oct. 23, 2015). The rule creates a CO2 budget for states that cannot be met by existing coal-fired units. Instead, the rule depends on widespread “trading” by which states can meet their budgets only if coal-fired units are not…
April 21, 2016
In a unanimous decision, the Virginia Supreme Court affirmed on Thursday that a conveyance of “coal and minerals” includes coal-bed methane (CBM). The decision represents an incremental expansion of the Court’s 1936 Warren v. Clinchfield Coal decision which held that severance deed which conveyed “coal and minerals” included conventional oil and gas. The plaintiff/appellant in the present case…
April 11, 2016
In the April 7, 2016 Federal Register, EPA proposed to add a site in Clarksburg, West Virginia to National Priorities List. The NPL is intended to guide EPA in determining which sites containing hazardous substances warrant further investigation and remediation under CERCLA.
According to a press release by EPA Region 3, the North 25th Street Glass and Zinc site in Clarksburg consists of…
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…
March 31, 2016
The West Virginia Department of Environmental Protection’s (“WVDEP”) Division of Air Quality (“DAQ”) recently issued two General Permits regulating air pollution in the oil and gas industry, both of which have been challenged by the West Virginia Oil and Natural Gas Association (“WVONGA”) as exceeding the Agency’s authority. During the public comment process, DAQ dismissed complaints about…
March 31, 2016
The West Virginia Department of Environmental Protection’s (“WVDEP”) Division of Air Quality (“DAQ”) recently issued two General Permits regulating air pollution in the oil and gas industry, both of which have been challenged by the West Virginia Oil and Natural Gas Association (“WVONGA”) as exceeding the Agency’s authority. During the public comment process, DAQ dismissed complaints about…
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…
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…
February 25, 2016
New criteria and policy was announced on February 11 by the U.S. Fish & Wildlife Service (“F&WS”) for designating “critical habitat” under the Endangered Species Act. The agency announced two changes in its regulations (81 Fed. Reg. 7214-7226; 81 Fed, Reg. 7414-7440) and adopted one new policy (81 Fed. Reg. 7226-7248). Collectively, these changes will provide the agency considerably…
February 18, 2016
Surface owners have the right of “subjacent support”—to have their surface left intact—unless that right has been waived. In West Virginia, the right of support can be waived expressly (by saying that mineral owner has no obligation to support the surface and no liability for failing to support it) or by necessary implication (by granting all of the coal and right to remove all of the…
February 16, 2016
On January 29, 2016, The United State District Court for the Middle District of North Carolina denied Duke Energy Carolinas, LLC’s (“Duke”) interlocutory appeal of its order denying Duke’s motion to dismiss a Clean Water Act (“CWA”) citizen suit. Duke argued that, before the law suit proceeded further, the Fourth Circuit should weigh in on two issues regarding claims of unpermitted discharges…
February 16, 2016
On January 29, 2016, The United State District Court for the Middle District of North Carolina denied Duke Energy Carolinas, LLC’s (“Duke”) interlocutory appeal of its order denying Duke’s motion to dismiss a Clean Water Act (“CWA”) citizen suit. here. Duke argued that, before the law suit proceeded further, the Fourth Circuit should weigh in on two issues regarding claims of unpermitted…
February 10, 2016
The Obama Administration finalized the “Clean Power Plan” rule for existing coal-fired electric generating plants on October 23, 2015. 80 FR 64662 (Oct. 23, 2015). The rule creates a CO2 budget for states that cannot be met by existing coal-fired units. Instead, the rule depends on widespread “trading” by which states can meet their budgets only if coal-fired units are not…
