Tennessee Environmental Law Blog

TDEC has proposed new rules that will address requirements for permits for hydrofracking.  The amendment adds a definition of "Fracturing" to the definitions as follows:  "the process of pumping fluids, gas or other substances down a well under pressure to create fractures in the producing formation to facilitate oil or gas extraction."  According to TDEC these amendments will solidify the Board’s authority to regulate fracturing activities though they acknowledge that TDEC can most likely regulate these activities under the existing rules. I would note that the Water Quality Control  Board will have the authority to promulgate these rules after July 1, 2012 as the Oil and Gas Board will sunset. 

The rules provide two important changes.  First it requires that the drilling plan for all wells include a statement as to whether or not fracturing will be involved and if so an estimate of the amount.  If greater than 200,000 gallons of water are proposed, the application will be placed on public notice along with a description of the source of the water and whether an ARAP for withdrawal will be required.  Specific details on the actual fracture process would also be requried as part of the well history information. Post drilling well reports will include actual volumes used to frack, amounts/concentrations of all additves used in fracturing, amount of wastewater generated and method of disposal.  These data will be entered on a public website by the operator either one set up by the State or by the operator, but no cost to the Department.

Two hearings are scheduled in Knoxville on July 10, 2012 to accept public comment.

tags: Oil gas water hydrofracking

TDEC is soliciting public comments on revised mitigation guidelines.  According to the announcement the guidelines would revise the 2004 Stream Mitigation Guidelines and would be used in determining the type and quantity of mitigation for permitted stream impacts for both state and federal regulatory prgrams.  A significant part of the revision is the inclusion of a rapid functional assessment of the stream being impacted as well as where the mitigation would occur.  A Stream Mitigation Assessment Sheet has been proposed that would include factors and weighting used to derive mitigation quantities.  Comments can be sent to Ben Brown at benjamen.brown@tn.gov or 615-532-0645.

This is a critical document for water resources and we will provide additional information and analysis in the coming weeks.  Thanks to Jeff Duke with CEC for bringing this to our attention.

tags: ARAP mitigation 401 wetlands

Happy Earth Day 2012! 

April 22, Earth Day, is a day dedicated to increasing awareness and appreciation of environmental issues around the world.  Bill Penny's post from the past two Earth Days provides a good history of the day.  Earth Day events are now coordinated globally by the Earth Day Network.  The EPA has a dedicated Earth Day page with great resources for those interested in learning more and taking action. 

For those of you in Nashville, Tennessee, be sure to check out the Nashville Earth Day Festival on April 21 from 11am until 7pm at Centennial Park.  Exhibitors will include entities and groups as diverse as Bridgestone, Clean Air Partnership of Middle TN, and Urban Green Lab.  Hope to see you there!

tags: Earth Day environmental awareness EPA April 22 Nashville Tennessee

Yesterday, the Environmental Protection Agency issued the proposed Carbon Pollution Standard, a rule limiting carbon dioxide (CO₂) emissions from new fossil-fuel powered electric power plants.  If adopted, this proposed rule would establish the first nation-wide, numeric limit on CO₂ emissions from new power plants. The rule follows EPA’s 2009 finding that greenhouse gases, including CO₂, endanger the public health and welfare. 

Under the proposed rule, new fossil-fuel powered generating facilities will be required to meet an output-based standard of 1,000 pounds of CO₂ per megawatt-hour (lb CO₂/MWh).  According to EPA, new natural gas combined cycle power plants should be able to meet the proposed standard without additional controls.

The proposed Carbon Pollution Standard would create a new category under the new source performance standards for the regulation of greenhouse gases from fossil fuel powered electric utility steam generating units (boilers and IGCC units) and combined cycle units.  The new category would include those units that (1) generate electricity for sale and (2) are greater than 25 megawatts in size.  The proposed rule would not apply to:

• Existing generating units, including modifications to those units required to comply with other air pollution requirements;
• New power plants that have permits and start construction within 12 months of the date of the proposed rule;
• Generating units looking to renew permits as part of a Department of Energy demonstration project, provided construction begins within 12 months of the date of the proposed rule; and
• New power plants that do not burn fossil-fuels (such as biomass).

EPA notes that new coal or petroleum coke power plants subject to the proposed Carbon Pollution Standard would need to incorporate CO₂reduction technologies, such as carbon capture and sequestration (CCS) to comply with the standard.  The proposed rule does, however, allow those generators that construct new generating units requiring CCS to use a 30-year average of CO₂emissions to comply with the standard.  Those CCS facilities taking advantage of the 30 year average must, however, limit their emissions to 1,800 lb CO₂/MWh on an annual basis during the first ten years of operation.  According to EPA, this limit is attainable using “supercritical” boiler technologies.

EPA will accept comments on the proposed Carbon Pollution Standard for sixty days following the official publication of the proposed rule in the Federal Register.  EPA is also planning to hold public meetings on the proposed rule, the dates of which will be included in the Federal Register and will be noted in future alerts.

Thanks to Ken Gish for the above entry!

tags: EPA carbon dioxide power plants Clean Air Act GHG emissions

Today, the United State Supreme Court handed down a unanimous decision in the closely watched case of Sackett v. Environmental Protection Agency. Reversing the courts below, the Supreme Court held the Sacketts have the right to challenge an EPA decision that their property contained wetlands. Justice Scalia, writing for the Court, stated that “there is no reason to think that the Clean Water Act was uniquely designed to enable the strong-arming of regulated parties into ‘voluntary compliance’ without the opportunity for judicial review—even judicial review of the question whether the regulated party is within the EPA’s jurisdiction. Compliance orders will remain an effective means of securing prompt voluntary compliance in those many cases where there is no substantial basis to question their validity.” The Clean Water Act does not preclude judicial review under the Administrative Procedures Act and, thus, the Court remanded the case to allow the Sacketts to bring a civil action under the APA to challenge the issuance of the EPA’s order.

For transportation and other development projects, which frequently have to deal with issues of wetlands jurisdiction, this decision will hopefully lead to a process where EPA jurisdiction can be challenged up front and early in the planning process rather than waiting for the EPA to assert a violation after the fact, as it did with the Sacketts. The decision will also have a dramatic impact on EPA's actions to demand administrative compliance.

tags: EPA Supreme Court Clean Water Act APA