Stray Gas Methane – The Next Big Problem?

Methane has been identified in drinking water wells and/or the basements of homes in Pennsylvania and other places. Some have loudly claimed that the mere presence of methane is proof that hydraulic fracturing for natural gas has contaminated water supplies and put people at risk. Others have begun to research the potential sources of stray gas methane and have arrived at a different, more scientifically based, explanation. In doing so, they have raised a new concern which may foster a wave of litigation against oil and gas drillers and operators.

Methane is an odorless and colorless gas and is the primary component of natural gas. Stray gas methane is a natural hydrocarbon which has migrated for various reasons from its original location in the subsurface into the atmosphere, shallow groundwater, drinking water supplies, or enclosed spaces. Stray gas methane is of two types: thermogenic or biogenic. Thermogenic gas is formed during the ancient deposition of organic material and its subsequent heating through pressure. Although mostly methane, it also includes ethane, propane, and butane. It is commonly associated with subsurface oil and gas deposits. Biogenic gas is almost all methane, is formed by microbial fermentation of organic matter in the near surface, and is not associated with oil and gas deposits. Continue reading “Stray Gas Methane – The Next Big Problem?” →

Upgraded Standards for Phase I Site Assessments May Impact Loans and Sales

Phase I Environmental Site Assessments (Phase I’s) have been the subject of this column in the past. See, for example, BIC’s August 2013 issue (pg. 94). Recent revisions to the standards for Phase I’s have been announced that will lead to more comprehensive Phase Is, which will benefit purchasers/lenders to the potential detriment of sellers/borrowers.

Phase I’s are widely used by real estate purchasers and lenders to discover past uses of property and potential contamination of that property. The requirements for Phase Is are set out in an ASTM standard, No. E1527-05, and EPA’s “All Appropriate Inquiries” Rule (40 CFR Part 312). Compliance with the existing ASTM standard is deemed compliance with the EPA rule. While both the ASTM standard and the EPA rule include specific guidelines and best practices to which an environmental professional conducting a Phase I must strictly adhere, there are differences that make the EPA rule more stringent.

ASTM has just revised Standard No. E1527-05 and will issue a new standard, No. E1527-13, that includes an updated and more detailed set of guidelines and best practices.  EPA is expected to recognize or adopt the new standard and it will become the new standard for environmental professionals conducting Phase I’s. This will bring the ASTM standard more in line with the EPA rule. Continue reading “Upgraded Standards for Phase I Site Assessments May Impact Loans and Sales” →

EPA Opens an Absurd Front in the War on Coal

EPA Administrator Gina McCarthy once declared that she “didn’t go to Washington to sit around and wait for Congressional action. Never done that before, and don’t plan to in the future.” May 1, 2010, quoted in CNS News, March 4, 2013. EPA’s recently proposed rule on ‘carbon pollution’ from new coal-fired power plants is a perfect example of this mind-set and her seemingly fervent belief that “greenhouse gas pollution, through its contribution to global climate change, presents a significant threat to Americans’ health and to the environment upon which our economy and security depends.” Testimony U.S. House of Representatives, June 29, 2012.

On September 20, 2013, EPA issued proposed uniform national limits on the amount of ‘carbon pollution,’ (i.e., carbon dioxide) that future power plants will be allowed to emit. The proposed rule comes at a time when there has been a documented pause in ‘global warming’ over the last 16 years and a growing consensus that the climate models predicting dire results from carbon emissions grossly overstated the risks. Nevertheless, Ms. McCarthy’s EPA is opening new fronts in the war on coal. Continue reading “EPA Opens an Absurd Front in the War on Coal” →

There is a Growing Resistance to Climate Change Proposals

Although temperature data shows that there has been a sixteen (16) year pause in global warming, the Obama Administration continues its push for more regulation of greenhouse gases. In fact, President Obama has flatly stated that, for the balance of his term, his administration would continue to combat climate change as one of its “key priorities” and focus on “strategies … that are lowering … dangerous carbon pollution.” Speech, July 24, 2013. In addition to the ongoing ‘war on coal,’ the continuing decrease in amount of oil and gas production from federally-controlled lands, and the implementation of emission standards for fracking, the administration has proposed and/or implemented ideas to make good on its promise. Continue reading “There is a Growing Resistance to Climate Change Proposals” →

Keystone Pipeline Decision Looms

According to most polls, there is general support for the construction and operation of the Keystone XL Pipeline. Most people are familiar with the basic facts about the pipeline. It will have the capacity to transport over 800,000 barrels of oil per day from the tar sands of Alberta, Canada to the refineries of the Gulf Coast, significantly reducing dependence on oil from Venezuela and the Middle East. It will create thousands of jobs in the construction and pipe fabrication fields, providing a boost to a sluggish economy. Overall, the project will add billions to the gross domestic product of the country.

TransCanada’s original application was filed in 2008 and re-filed in May, 2012. The governor of Nebraska approved the pipeline’s revised route through his state so that an important source of drinking water was protected. In March, 2013, the US State Department released a Draft Supplementary Environmental Impact Statement which concluded, among other things, that “there would be no significant impacts to most resources along the proposed [pipeline] route.” Continue reading “Keystone Pipeline Decision Looms” →

The Expansion of the ‘Unconstitutional Conditions’ Doctrine In Land Use Regulation

The United States Supreme Court extended important protections to landowners faced with ‘unconstitutional conditions’ imposed on them by the government in the context of land-use regulations. Koontz v. St. Johns River Water Management District, — U.S. —, 133 S.Ct. 2586 (2013).

Mr. Koontz owns 14.9 acres of land in Florida, most of which contains wetlands. He proposed to develop a 3.7 acre portion of it and deed a conservation easement to the St. Johns River Water Management District (District) on the remaining acres (about 11 acres) to mitigate the environmental effect of the development. The District, however, considered the 11 acre easement to be inadequate and told Mr. Koontz that it would approve the development only if he agreed to one of two concessions. He could reduce the size of his development to 1 acre and grant an easement over the remaining 13.9 acres. Or, in the alternative, he could proceed as originally proposed (build on the 3.7 acres while deeding an easement over the remaining acres) only if he also agreed to make improvements on District-owned land several miles away. Mr. Koontz believed that these alternatives were excessive in light of the environmental effects of his proposal and refused. The District denied his permit. Thereafter, Mr. Koontz filed suit under a Florida state law allowing landowners monetary damages for an agency’s unreasonable exercise of the state’s police power which constitute a taking without just compensation. Continue reading “The Expansion of the ‘Unconstitutional Conditions’ Doctrine In Land Use Regulation” →

EPA Can Veto Corps’ Wetlands Permits “Whenever” It Wants

In a recent appellate court decision that is sure to create a great deal of uncertainty and hamper development efforts, the Court of Appeal for the D.C. Circuit approved EPA’s authority to veto permits issued by Army Corps of Engineers (Corps) well after they are issued. In fact, based on this ruling, these may do this ‘whenever’ they want. Mingo Logan Coal Company, Inc. v. EPA, No. 12-5150, April 23, 2013.

The Clean Water Act (CWA), Section 404(a), authorizes the Corps to issue permits for the discharge of fill material into waters of the United States at specified disposal sites. This authority, however, is subject to the CWA Section 404(c), which provides authority to EPA’s Administrator “to prohibit the specification (including the withdrawal of specification) of any” disposal site “whenever he determines, after notice and opportunity for public hearings, that the discharge of such materials into such area will have an unacceptable adverse effect.” It is the timing of EPA’s actions (‘whenever he determines’) that will create problems. Continue reading “EPA Can Veto Corps’ Wetlands Permits “Whenever” It Wants” →

What You Don’t Know About Phase I’s Can Cost You

Phase I Environmental Site Assessments (Phase I’s) are widely used by purchasers of property and lending institutions providing capital for the purchase. A Phase I can provide valuable information about past uses of the property that assists purchasers and lenders in making informed decisions. In many instances, however, once the Phase I is received and reviewed, it is put in a file and forgotten, even when the Phase I reveals that the property may be contaminated. This is a mistake made by those who do not understand the true purpose behind a Phase I and do not realize that it is only one piece of a larger puzzle. Unfortunately, such ignorance can be costly. Continue reading “What You Don’t Know About Phase I’s Can Cost You” →

An Inconvenient Irony

Hydraulic fracturing, or fracking, remains the target of many environmental groups and some governments who seek to prohibit or significantly curtail the practice. Fracking, however, has provided an abundance of cheap natural gas, which has played a major role in the dramatic decrease in the amount of carbon dioxide (CO2) emitted in the United States. The decrease in CO2 and the role fracking has played in it has created an interesting, and perhaps inconvenient, irony.

The combustion of fossil fuels (such as coal, oil, and natural gas) in the energy, transportation, and industrial sectors creates the vast majority of greenhouse gases (GHG). Coal combustion creates much more CO2 than the combustion of natural gas. CO2 is the most abundant of GHG and remains in the atmosphere much longer than other GHG, such as methane. Although methane and other GHG have a higher global warming potential, the large amount of CO2 emitted into the atmosphere has been a major focus of the climate change (formerly known as ‘global warming’) debate. Recent Environmental Protection Agency (EPA) regulations and the Kyoto Protocol are examples of national and international efforts spurred by environmental groups seeking massive decreases in CO2 emissions. Continue reading “An Inconvenient Irony” →

Why Should You Worry About Environmental Laws?

Environmental laws and regulations govern many activities in the construction and aggregates industries. Due to the nature and complexity of environmental regulation, this brief summary simply cannot comprehensively explain everything that may affect you and your business. However, it will touch on three of the main areas (water, air, and waste) and provide some basic information so you can generally assess whether you may have an issue that needs to be addressed. As Ben Franklin once said – “an ounce of prevention is worth a pound of cure.”

Why is this important? Inspections and potential enforcement actions by the Louisiana Department of Environmental Quality (LDEQ) are bad enough. But, other time-consuming actions could hamper your company as a result of unknowingly violating environmental laws. Third-parties, such as neighbors or environmental groups, have the right to file a ‘citizen’s suit’ against your company for environmental violations. General laws of nuisance, trespass, and tort may form the basis for a suit. When wetlands may be involved, the Corps of Engineers may issue stop-work orders, shutting down your job. Continue reading “Why Should You Worry About Environmental Laws?” →