As reported in the Spirit of Jefferson newspaper, Senate Bill 474, introduced in the West Virginia Senate on Monday, February 3, would amend W. Va. Code § 22-15-8 to allow commercial waste facilities to accept drill cuttings and associated hydraulic fracturing waste above and beyond their monthly tonnage waste limits without a public approval process, provided that the drilling waste is placed in a separate cell dedicated solely to the disposal of such waste. Normally, commercial waste facilities must go through an approval process, including public hearings, to accept solid waste beyond their usual monthly tonnage limits (usually 10,000 or 30,000 tons). The bill, which was drafted by the West Virginia Department of Environmental Protection, must gain approval from the Senate Government Organizations Committee and the Senate Judiciary Committee before taking affect. A public hearing was held in regard to the bill on Monday, February 17 at 5 p.m. in Charleston.
On September 4, 2013, in the case of Whiteman v. Chesapeake Appalachia, L. L. C. (2013 U.S. App. LEXIS 18359 (4th Cir. W. va. 2013)), the United States Court of Appeals for the Fourth Circuit upheld a District Court ruling from the Northern District of West Virginia regarding claims of trespass against Chesapeake Appalachia, L. L. C. brought by the surface owners of a 101 acre parcel in Wetzel County. The Fourth Circuit Opinion, written by Judge Faber, concluded that the District Court properly granted summary judgment to Chesapeake. The Opinion specifically stated “that creating drill waste pits was reasonably necessary for recovery of natural gas and did not impose a substantial burden on the [Plaintiffs] surface property, that creation of the pits was consistent with Chesapeake’s rights under its lease, was a practice common to natural gas wells in West Virginia, and consistent with requirements of applicable rules and regulations for the protection of the environment.”
A report created by the West Virginia Department of Environmental Protection’s Office of Oil and Gas, which was anticipated pursuant to previous studies conducted by the DEP, indicates that no new rules are necessary to protect West Virginia’s air quality from natural gas drilling, reports The Sacramento Bee. The report stated that based upon air quality monitoring data there were no indications of a public health emergency or threat because of hydraulic fracturing. The results of the study were presented to West Virginia State Lawmakers on Tuesday during an interim committee meeting.
The Fifth District Court of Appeals held in a recent decision that a general disclaimer of implied covenants in a lease effectively disclaims any implied covenants to reasonably develop the leased property. In Bilbaran Farm, Inc. v. Bakerwell, Inc., the plaintiffs claimed that the lessees to the oil and gas lease breached the lease by not developing all portions of a 275 acre tract of land. The trial court dismissed the plaintiffs’ complaint citing the general disclaimer language in the lease. The Court of Appeals agreed that the general disclaimer was sufficient to disclaim any obligation to reasonably develop the undeveloped portions of the leasehold.
In Summit Petroleum Corp. v. US EPA, 690 F.3d 733 (6th Cir. 2012), the U.S. Court of Appeals for the Sixth Circuit overturned the US EPA’s finding that a natural gas sweetening plant and approximately 100 gas wells scattered across a 43-square-mile area in Michigan should be treated as a single source for purposes of Title V of the Federal Clean Air Act. The case turned on whether the plant, wells, flares and pipelines were located on “adjacent properties” for purposes of the Title V permitting program, which requires the aggregation of individual sources in making major source determinations if certain requirements are met. In a split decision, the Sixth Circuit applied the plain meaning of the term “adjacent” and rejected the US EPA’s longstanding reliance on functional relatedness in conducting an adjacency analysis.
Read about this development and more in the Babst Calland Report. Access the Report’s executive summary here. Request a copy here.
Journalist Pam Kasey suggested, in a print article in the West Virginia State Journal dated May 2, 2013, that while it is possible for a surface owner to attempt to insist that a driller become certified under new certification standards set by the Center for Sustainable Shale Development (as described last week in our blog), the standards are more likely to benefit minerals owners as bargaining tools for parties signing leases for oil and gas development. If the mineral interests are severed from the surface estate, then the surface owner will have little ability to use the standards for their own benefit. Per the article, the surface landowner will derive the most benefit from the new standards in situations when the minerals and the surface estate are owned by the same party, allowing the landowner can attempt to negotiate the standards into a lease or other agreement affecting the property.
As profiled in an article by Pam Kasey in the West Virginia State Journal, Charleston-based Appalachian Basin natural gas operator Triana Energy, LLC has meet the stringent environmental standards required to achieve ISO 14001 certification. To achieve certification, Triana established a comprehensive environmental management system for its operations. The company claims to be one of the first oil and gas exploration and production companies in the U.S. to receive ISO 14001 certification, which requires internal environmental controls and standards that are more demanding than current regulatory requirements.
On May 9, 2013, the U.S. EPA approved the PADEP’s 2012 Integrated Water Quality Monitoring and Assessment Report, a biennial “monitoring and assessment report characterizing the condition of Pennsylvania’s surface waters.” Included in this report is a list of Pennsylvania’s “impaired” surface waters that are not able to attain water quality standards, generally referred to as the 303(d) List. According to the U.S. EPA, PADEP’s 303(d) List includes 7,009 impaired waters, with 263 waters newly listed in the 2012 Report. The 2012 Report also “includes a change in the designation for a nearly 100-mile section of the main stem of the Susquehanna River from ‘unimpaired’ for aquatic life and recreational uses, to having insufficient water quality data to make an impairment determination.” Accordingly, PADEP is currently working with the Pennsylvania Fish and Boat Commission, the Susquehanna River Basin Commission, and the U.S. Geological Survey to complete a Susquehanna River Study this year to assess the quality of waters in the Susquehanna River and its tributaries.
The Republic reports that Senator Joe Scarnati, R-Jefferson, recently introduced Senate Bill 555. The bill would create a health advisory panel to review public health data for areas where shale gas extraction occurs and determine the health impacts and benefits such operations. The Governor’s Marcellus Shale Advisory Commission suggested creating a permanent health advisory panel.
The West Virginia Department of Environmental Protection Division of Air Quality recently issued the draft Class II General Permit G70-A for the Prevention and Control of Air Pollution in regard to the Construction, Modification, Relocation, Administrative Update and Operation of Natural Gas Production Facilities Located at the Well Site. The Notice of Intent to approve the permit indicates that the public may provide written comments regarding the permit to the Division of Air Quality, and that all such comments and requests for a public meeting regarding the permit must be received before 5:00 p.m. on Monday, April 29, 2013. The Draft Engineering Evaluation/Fact Sheet regarding Class II General Permit G70-A can be found here.
Pennsylvania Governor Tom Corbett announced today that Pennsylvania DEP Secretary Michael Krancer will resign from the DEP effective April 15. Mr. Krancer will return to private law practice at his former law firm, Blank Rome, LLP. No successor has been named, but the deputy chief of staff for the governor, E. Christopher Abruzzo, will serve as acting secretary after Mr. Krancer’s departure. In a press release from the DEP, Governor Corbett stated, “Secretary Krancer has been an invaluable member of our team and I am grateful for his service. His impressive efforts at DEP have taken the agency back to basics, protecting the environment and making the permitting process more efficient.”
The WVU College of Law will tackle hydraulic fracturing issues in the upcoming National Energy & Sustainability Moot Court Competition. On March 14-16, 2013, moot court teams will gather in Morgantown to address issues involving alleged violations of the Clean Air Act and Migratory Bird Treaty by a “mid-Atlantic national gas company” involved in hydraulic fracturing. The sample case was designed to bringpractical compliance and enforcement issues into the classroom and to raise awareness of vital business and environmental issues affecting West Virginia and other gas-rich states. The Competition includes teams from American University, Duquesne, Florida State, Colorado, Maryland, Utah and Wyoming, West Virginia, and others, at WVU’s Erickson Alumni Center.
The Pennsylvania Senate Committee on Environmental Resources and Energy unanimously approved Senate Bill 411 on Tuesday. The Herald-Standard reports that the bill would provide liability protection from the perpetual treatment of mine water at its source when the end use is for hydraulic fracturing or industrial use. The bill would provide offer liability protection through a Pennsylvania Department of Environmental Protection process developed in the Environmental Good Samaritan Act. The issue was among the policy recommendations made by the Governor’s Marcellus Shale Advisory Commission in a 2011 report. The bill was previously approved by the Senate, but failed to get House approval during the last legislative session. The DEP also recently issued a white paper regarding the use of acid mine drainage in drilling operations.
The Pittsburgh Tribune-Review reports that certain environmental groups and drilling companies will soon collaborate to establish the Institute of Gas Drilling Excellence, an organization that will measure drilling companies’ performances against the best industry standards. The report lists the Environmental Defense Fund, PennFuture, The Heinz Endowments and drilling companies EQT and Shell as collaborators in the institute.
The Delaware River Basin Commission has advised that it will conduct a review of two completed pipeline projects in Northeast Pennsylvania, a reversal of its prior position. DRBC Executive Director Carol Collier made the decision after the Commission decided at its December 2012 meeting that Collier should assess whether the DRBC should review the projects. The projects are interstate pipelines built by Columbia Gas Transmission and Tennessee Gas Pipeline Co. While the DRBC does not review gas pipeline projects typically, the DRBC determined that review was needed in these cases because the pipelines went through the Delaware State Forest. The Philadelphia Inquirer has more.