Army Corps of Engineers Suspends Fast-Track Mountaintop Removal Permit
On June 18, 2010, the U.S. Army Corps of Engineers suspended the use of Nationwide Permit 21, which allowed "fast-track" permits to be issued for mountaintop removal coal mining, in six states (Kentucky, Ohio, Pennsylvania, Tennessee, Virginia and West Virginia). The suspension comes a year after a federal judge ruled that the Corps could not use fast-track permits to "circumvent its statutory obligations to thoroughly examine the environmental impacts" of mountaintop removal (Ohio Valley v. Hurst, 604 F. Supp. 2d 860 (S.D. W.Va. 2009). Though the ruling in the case limited the declaration of the illegality of fast-track permits to the Southern District of West Virginia, the Corps extended the suspension to states where environmental opposition to mountaintop removal is particularly vehement. The permit will continue to be available in other states.
Due to the suspension of Nationwide Permit 21, proposed surface mining projects in the affected states that will involve discharges of dredged or fill materials into waterways will individually have to be granted Army authorization under the Clean Water Act. This will allow for increased public involvement and comment on proposed projects, according to the Army Corps.
Fast track permits already issued will be honored, but any pending applications will have to be resubmitted through the new, individualized review process.
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EPA Adds Underground Coal Mines to List of GHG Reporters
On June 28, 2010, EPA Administrator Lisa Jackson signed a rule which adds Underground Coal Mines to the list of source categories required to report their greenhouse gas (GHG) emissions to EPA. The original GHG Reporting Rule, which was published in the Federal Register in October 2009 (74 Fed. Reg. 56260 (October 30, 2009)), considered but did not include mines in the initial reporting program, which went into effect January 1 of this year. Upon further consideration, EPA has decided to require GHG reporting from active underground coal mines as well as those under development. Abandoned mines, surface mines, and post-coal mining activities are not included.
On a quarterly basis, underground coal mine owners and operators must report (1) methane liberated from each ventilation well or shaft, and/or each centralized monitoring point, (2) carbon dioxide emissions from coal mine gas methane destruction where the gas is not a fuel input for energy generation or use. On a weekly basis, they must report (1) methane liberated from each degasification system, and/or each centralized monitoring point, as well as (2) methane destruction from each destruction device or point of offsite transfer. Finally, on an annual basis, mine owners and operators must report carbon dioxide and nitrous oxide emissions from stationary fuel combustion devices. In addition, if any additional emission sources at a facility fall within one of EPA's other GHG reporting source categories, those emissions must also continue to be reported.
Underground coal mines subject to the new rule must begin monitoring GHG emissions on January 1, 2011, with the first reports due to EPA on March 31, 2012.
This rule will be effective 60 days after it is published in the Federal Register.
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Virginia Coalbed Methane Dispute Sparks Lawsuit
More than 100 landowners in several Virginia counties filed suit against Consol Energy Inc. in the Western District of Virginia based on the company's actions relating to the capture and sale of coalbed methane (CBM) (Short v. CNX Gas Corp., No. 10-cv-0036 (W.D. Vir. Jun. 15, 2010)).
The plaintiffs allege that Consol, through its subsidiary CNX Gas Corp., has been capturing and selling CBM, a natural gas that resides in coal seams, from their land without having necessary rights. CNX does own the rights to the coal under the properties in question, but plaintiffs argue that coal rights are separate and distinct from CBM rights, citing case law establishing that the two are separate entities. The Virginia Supreme Court ruled that a landowner conveying his coal to a third party still possesses the right to the CBM in Harrison-Wyatt LLC v. Ratliff (2004).
Consol's legal support is grounded in the Virginia Gas and Oil Act, enacted in 1990, by which companies are allowed to drill for CBM, rather than discharging it into the air.
Plaintiffs are claiming a breach of fiduciary duty, a breach of implied duty, and trespass and conversion. They are requesting injunctive relief, compensatory damages, pre- and post-judgment interest, and attorney's fees. Perhaps most importantly, they are seeking a declaratory judgment that they hold the right to the CBM underneath their lands which should entitle them to a higher percentage of royalties.
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EPA issues final new heath standard for sulfur dioxide
The Environmental Protection Agency (EPA) has issued a final new health standard for sulfur dioxide (SO2), which is primarily emitted from power plants and industrial facilities. Exposure to SO2 has been found to aggravate asthma and cause other respiratory difficulties.
The EPA revoked the old SO2 standards, which were based on 24-hour and annual exposures. Instead, the new standard of 75 parts per billion (ppb) in one hour is designed to protect against short-term exposures of from five minutes to 24 hours. Science indicates that it is the short-term exposures that are of the greatest concern.
The new EPA standard also changed the SO2 monitoring requirements. The new standard requires that monitors be placed where SO2 emissions impact populated areas. Monitors required by the new rule must begin operating no later than January 1, 2013.
EPA estimates that the cost in 2020 to fully implement the new standard is approximately $1.5 billion. The agency expects to identify or designate areas not meeting the new standard by June 2012.
This final rule addressed only the SO2 primary standards, which are designed to protect the public health. EPA will also conduct a separate review, expected to be completed in 2012, of the secondary standard, which is designed to protect the public welfare, including the environment.
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West Virginia Surface Mine Must Address Selenium Discharges
On June 16, 2010, Judge Robert Chambers of the U.S. District Court for the Southern District of West Virginia refused to dismiss claims by environmental groups regarding alleged permit violations caused by selenium discharges at a large surface mine operated by Hobet Mining LLC, a subsidiary of Patriot Coal Corporation.
The Sierra Club, Ohio Valley Environmental Coalition and West Virginia Highlands Conservancy filed suit in October alleging that Hobet's selenium discharges into the Berry Branch of the Mud River were violating the terms and conditions of its West Virginia/National Pollution Discharge Elimination System (NPDES) Permit. The permit, which was issued in 2007, allowed for the extension of Hobet's existing mining operations and regulated the discharge of pollutants into the Mud River Reservoir. In 2008, Hobet reached a settlement with the state and agreed to pay $4.1 million in civil penalties and for experimental practices to control selenium discharges. Hobet's motion to dismiss the current case before the Southern District argued that previous state court litigation rendered the action moot and that the plaintiffs failed to add the West Virginia Department of Environmental Protection (WVDEP) as an indispensible party.
Judge Chambers held that the prior state court litigation and subsequent settlement was insufficient to preclude this action. The court stated further that the company's failure to produce a promising treatment plan to address selenium discharges rendered the time frames from the 2008 consent order unreasonable. According to the court, the company's assertions that there is no available technology for the removal of selenium makes the extensions in the consent order look more like stalling tactics than attempts at compliance. As for the indispensible party argument, the court stated that the litigation did not prejudice the WVDEP's interests in the dispute and noted that the Eleventh Amendment bars the inclusion of state agencies in Clean Air Act and Surface Mining Control and Reclamation Act citizen suits.
On June 21, 2010, the Sierra Club, Ohio Valley Environmental Coalition and West Virginia Highlands Conservancy filed similar claims against Catenary Coal Co. LLC (another Patriot Coal Corporation subsidiary) and additional claims against Hobet regarding alleged violations of their other NPDES permits. The plaintiffs claim that these Patriot subsidiaries are violating the conditions of six NPDES permits with regard to selenium discharges and that the companies have failed to comply with WVDEP consent orders mandating the treatment and or removal of selenium from the permitted discharges. The suit seeks civil penalties, injunctions barring the defendant companies from continuing these violations, an order forcing immediate compliance and attorneys and expert witness fees.
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U.S. Forest Service Appeals Oil and Gas Development Ruling
The United States Forest Service has appealed the ruling of the United States District Court for the Western District of Pennsylvania, which allowed for the development of oil and gas in the Allegheny National Forest. In the initial ruling, styled Minard Run Oil Co. v. U.S. Forest Service, Case Number 09-CV-00125, the court granted an injunction that lifted the ban on oil and gas development in the Allegheny National Forest.
The original ban on drilling was in place pending an environmental analysis and other factors in accordance with the National Environmental Protection Act (NEPA). The court cited its own previous cases regarding development in the Allegheny National Forest and held that the extensive NEPA review was not appropriate in this case. Therefore, developers no longer had to wait for NEPA review and could proceed. The Sierra Club and other environmental groups involved in the matter had previously appealed the ruling.
