Environmental Business Alert

Date: Nov 06, 2012

Court Rejects Voluntary Endangered Species Mitigation Measures in Pipeline Plan

Ruby Pipeline LLC thought voluntary mitigation measures to protect endangered species would expedite their proposed pipeline project and the Bureau of Land Management (BLM) agreed, approving the 678-mile natural gas pipeline. On review, the Ninth Circuit vacated the approval, holding that BLM's biological opinion impermissibly relied on unenforceable mitigation measures that were never integrated into the project's design. This ruling came down over a year after the pipeline completed construction and began operating. Going forward, parties negotiating projects that could impact endangered species should expect any necessary mitigation measures to be binding and enforceable.

PHMSA Releases Studies on Improving Pipeline Leak Detection Systems and Shutoff Valves

Pursuant to a mandate in the Pipeline Safety, Regulatory Certainty, and Job Creation Act of 2011, the Pipeline and Hazardous Materials Safety Administration (PHMSA) commissioned two studies analyzing the "constraints and implications" for expanding the use of leak detection systems and automatic and remote control shutoff valves in pipelines. The September 28, 2012 report generally found that additional leak detection systems, particularly in natural gas pipelines for which there are no relevant best practice standards, could have reduced the consequences of past incidents, and that returns on investments in such equipment are typically very high over a system's lifetime. With regard to automatic and remote control shutoff valves, the October 4, 2012 report concluded that these controls effectively mitigate the consequences of unintended pipeline releases and that their installation in new pipelines is technically, operationally and economically feasible. These reports may trigger amendments to the pipeline regulations requiring the installation of additional leak detection systems and shutoff valves under the Act.

EPA Proposes New Methods for Electronics Manufacturers to Measure GHG Emissions

Continuing its reconsideration of the Greenhouse Gas Reporting Rule for the electronics manufacturing sector, the U.S. Environmental Protection (EPA) proposed to provide new options for calculating fluorinated greenhouse gas (F-GHG) emissions. The proposal would allow covered facilities to calculate emissions by conducting stack testing, a method already used to comply with other air quality regulations, beginning January 1, 2014. In addition, the proposal would allow large manufacturers to use more generic approaches to calculating emissions rates instead of the earlier "recipe specific" rates that could reveal confidential business information. The proposal would also clarify that facilities may calculate whether they meet the 25,000 metric ton GHG reporting threshold using the maximum capacity of the equipment on site during the relevant reporting year, rather than the potentially higher design capacity of the facility. Comments on the proposal are due December 17, 2012.

EPA Releases New Groundwater Sampling Data from Hydraulic Fracturing Investigation

EPA released a draft report concerning its ongoing investigation of alleged groundwater contamination from hydraulic fracturing in Pavillion, Wyoming. The report describes the results of additional sampling EPA and the U.S. Geological Service conducted on deep monitoring wells to address industry and state criticism of EPA's previous study, which, as we discussed here, concluded that the contamination was caused by fracturing. The latest report finds similar levels of suspected contaminants based on revised sampling and testing protocol, but does not draw a conclusion as to their source. EPA also extended the comment period on the investigation's methodology and findings until January 15, 2013. An independent peer review panel will review the draft report and any public comments before making conclusions as to the source of these pollutants and regulatory recommendations.

New Front Opened in Fracturing World

While oil and gas extraction operations are exempt from most environmental statutes, they are not exempt from the Federal pesticide law, the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA). Oil and gas companies use biocides registered under FIFRA at low concentrations in fracturing fluids to eliminate bacteria that produce corrosive by-products. At a meeting of the Association of American Pesticide Control Officials (AAPCO), pesticide regulators announced that EPA is reviewing water quality risk assessments for biocides used in fracturing. Although EPA may be reviewing new information concerning the impact of fracturing on groundwater, well owners and operators can continue to use biocides that are currently registered for use in fracturing operations unless and until EPA takes formal action to amend the product registrations through a data call-in, registration review or other notice. AAPCO will invite EPA to speak on this issue at its March 2013 annual meeting in Arlington, VA.

POPs Review Committee Meet to Review Chemicals

The Persistent Organic Pollutants Review Committee (POPRC) is reviewing four substances proposed for listing in the annexes of the Stockholm Convention: chlorinated naphthalenes, hexachlorobutadiene, short-chain chlorinated paraffins, and hexabromocyclododecane. These substances have been used as solvents, flame retardants, and plasticizers. Upon POPRC's recommendation, the parties to the Convention can decide to list these substances and specify control measures. Although the United States is not a party to the Stockholm Convention, manufacturers of these substances should pay close attention to the Stockholm process. Past administrations often have sought to reduce POPs, such as dioxins, furan and DDT, in accordance with the treaty.