Energy and Environment MonitorEnvironmental LitigationSierra Club Sues West Virginia Over Mine Reclamation Sites (Again)April 28, 2016 The Sierra Club’s “Beyond Coal” campaign has generated another suit against West Virginia. The Surface Mine Control and Reclamation Act (SMCRA) requires coal operators to reclaim mine sites after mining. To insure that reclamation occurs, operators must post reclamation bonds. West Virginia and many other states have an alternative bonding system that requires operators to both post a… On Remand, EPA Determines Cost of Mercury Air Rule was ReasonableApril 25, 2016 On June 29, 2015, the United States Supreme Court ruled that EPA erred when it failed to take cost into account in evaluating whether it was “appropriate and necessary” to regulate hazardous air pollutants (mercury) from coal- and oil-fired electric generating units. See Michigan v. EPA, No. 14-46 (June 29, 20150). The rule, known commonly as the “Mercury and Air Toxics Standards” or… Coal-bed Methane Included within a Conveyance of “Coal and Minerals”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… EPA Proposes to Add Clarksburg, WV Site to Superfund National Priorities ListApril 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… How the Federal Government Is Coming after Water, and Whether It Will Get ItApril 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… AQB to Decide WVONGA Challenge to General PermitMarch 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… AQB to Decide WVONGA Challenge to General PermitMarch 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… EPA Proposes to Expand its Accidental Release and Risk Management Program Rules under Section 112(r) of the Clean Air ActMarch 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 EngineersMarch 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… Fish & Wildlife Service Imposes New Habitat CriteriaFebruary 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… Federal Court In WV Voids Severance Deed Waiver Because Longwall Mining Not Contemplated In 1902February 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… District court judge denies request for interlocutory appeal in Coal Ash Pollution SuitFebruary 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… |
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