The Colorado Supreme Court just issued an order in favor of our clients in the ongoing legal challenge to a statewide clean air plan, in Colorado Mining Association v. Urbina.  The Court denied a petition that challenged key elements of the Regional Haze plan adopted in Colorado pursuant to the Clean Air Clean Jobs Act.  This innovative plan will not only reduce Regional Haze in national parks and wilderness areas, it will also dramatically reduce air pollution and greenhouse gas emissions throughout the state.  These improvements will generate hundreds of millions of dollars per year in public health benefits, all at a cost significantly lower than a more traditional pollution control program as advocated for by the coal interests.  The plan was reviewed and endorsed by a broad, bipartisan coalition of stakeholder groups and elected officials in Colorado, including the entire state congressional delegation and the governor.  The U.S. EPA approved the plan in September of 2012 (as published in the Fedreal Register on December 31, 2012).

The lawsuit was filed by the Colorado Mining Association (CMA), which objected to the Regional Haze plan adopted by the Colorado Air Quality Control Commission.  After we briefed the issue last year, the trial court dismissed the CMA challenge as moot, due to subsequent legislative action.  CMA filed appeals both in the court of appeals and a direct appeal to the Colorado Supreme Court (in the form of an interlocutory petition for certification).  Our clients (a number of state and national environmental organizations), along with the State of Colorado, several natural gas companies and Public Service Company of Colorado, opposed the CMA writ petition.  The victory removes yet another roadblock CMA sought to put in the way of this important Regional Haze plan.  We will be briefing the underlying appeal this week, as that element of the litigation remains active.

This win builds upon our prior victories in this case, including our successful work in the underlying administrative action, the favorable decision by the trial court, and now a favorable order by the Colorado Supreme Court.

On December 31, 2012, EPA formally published its determination approving the Colorado Regional Haze State Implementation Plan, in its entirety.  The plan was endorsed by a broad, bipartisan coalition of stakeholder groups and elected officials in Colorado, including the entire state congressional delegation and the governor.  In an era of politics defined by deep partisanship, it is highly refreshing to see an example of stakeholders and elected officials working together on a long-term, cost-effective program to protect the environment and public health.

My firm represents a coalition of national and state environmental organizations who helped to craft and support this plan, and I serve as the lead attorney on the matter.

This innovative plan will not only mitigate regional haze in national parks and wilderness areas, it will also dramatically reduce air pollution and greenhouse gas emissions throughout the state. These improvements are projected to generate hundreds of millions of dollars per year in public health benefits, all at a significantly lower cost than a more traditional pollution control program as advocated by the coal interests.

The plan is not without its critics.  The Colorado Mining Association (“CMA”), several local governments and some environmental groups opposed certain elements of the plan, for various reasons.  In its response to these objections, EPA expressly recognized the innovative and comprehensive nature of the Colorado program.  Even though EPA may not have made the same decisions itself with respect to each unit, EPA concluded the program achieves a “reasonable result overall” and therefore approved the plan in its entirety.

Here is an excerpt from the Federal Register on this point in the context of whether the plan should have required additional controls on the electric power generation unit known as Craig 1:

“EPA acknowledges that Colorado’s approach appears to be a novel and comprehensive strategy for addressing regional haze requirements and other air quality goals. In 2010, the Colorado General Assembly adopted legislation authorizing the Air Quality Control Commission and the Public Utilities Commission to develop a comprehensive plan for coal-fired electric generating units in the state that would address not only regional haze but also potential new ozone standards and mercury standards, as well as other requirements that, in the State’s view, could apply to coal-fired electric generation units in the foreseeable future. The State desired to address these issues in a coordinated way in order to achieve the most cost-effective strategy that accounted for not only current, but other imminent regulatory requirements. This approach appears to be unique and, as noted below, will yield significant emissions reductions not only of pollutants that affect visibility in Class I areas, but also significant reductions in pollutants that contribute to ozone formation, nitrogen deposition, and mercury emissions and deposition. The State spent considerable time and conducted sequential and extended hearings to develop a plan which seeks to balance a number of variables beyond those that would be involved in a simpler and narrower regional haze determination.

Colorado’s BART requirements for the Craig units reflect a balance struck by Tri-State Generation & Transmission Association, Inc. and several environmental groups before the Colorado Air Quality Control Commission during an extensive and formal proceeding; at the conclusion of the proceeding, the Commission adopted the agreement reached by Tri- State and those environmental groups as part of Colorado’s regional haze plan. As a result, the plan requires installation of SCR at one of the two Craig BART eligible units even though the Commission previously had concluded that installation of SCR was not warranted at either unit. In addition, we note that Colorado has imposed SCR as BART on two other EGUs in western Colorado—Hayden Units 1 and 2—and at the Pawnee plant in eastern Colorado.  Moreover, Colorado has exceeded the minimum requirements for BART and reasonable progress for sources included in the PSCO BART Alternative (as described in our notice of proposed rulemaking, 77 FR 18073–18075), and has imposed substantial and meaningful controls, that go beyond what EPA’s regulations otherwise might have required, to address reasonable progress sources for the initial planning period.

Under the unique circumstances discussed above, EPA concludes that Colorado’s plan achieves a reasonable result overall. Based on this, we are approving the entirety of the Colorado regional haze SIP, even though the State’s BART analysis for Craig 1 only analyzed visibility impacts at the most impacted Class I area and appears to overestimate the costs of SCR controls.”

The full approval can be found here

Posted by: tommtn | December 21, 2012

Boulder County Regulates Fracking

Last week, Boulder County updated its regulations governing oil and gas production and fracking. The action is part of a larger tapestry of regulation and conflicts within Colorado and the Country on this issue. For more information on these regulations, please see Boulder County’s Oil and Gas Development page.

Fracking and oil and gas production faced an unprecedented flurry of regulatory activity throughout Colorado in 2012, at both the local and state levels.  The City of Longmont adopted its own rules and was promptly sued by the State. Longmont voters approved a ban on fracking, prompting another lawsuit by industry.  On the state level, both the Air Quality Control Commission and the Oil and Gas Conservation Commission (COGCC) undertook rulemakings to amend their rules.

Boulder County chose not to ban fracking, but it did proceed to adopt some of the most stringent oil and gas regulations in the state. To do so, they took advantage of state air pollution laws that give clear authority to local governments to impose more stringent rules than state regulations. We believe that Boulder County is the first to take advantage of this authority in the oil and gas context. The County sought to adopt rules that avoided operational conflicts with state rules while still protecting the people and environment of Boulder County to the maximum extent possible within such authority.  Many in the community called for a ban on fracking, but the Commission believed it did not have authority to adopt such a ban.

The County regulations contain certain requirements that apply to all applicants. For example, the rules require all applicants to minimize air pollution (e.g. by controlling volatile organic carbon emissions by 98% and developing and implementing a leak detection and repair program) and to electrify the drill site where feasible, among other requirements. These rules go beyond the current state and federal regulations.

The regulations also encourage operators to voluntarily opt-in to an expedited permit process, which provides for additional protections. These additional controls include greater setbacks from homes and other sensitive areas, more protective procedures for drilling (such as closed loop drilling procedures), specific testing protocols for groundwater, and restricting the venting of gas during production, among other things. In exchange to agreeing to these more protective measures, operators will be able to obtain a permit more quickly. Since the additional controls are voluntary, they do not present an operational conflict with state rules.

If an applicant opts out of the expedited review, the application is still subject to certain prescriptive standards (such as the 98% control outlined above) but also has to develop plans to meet subjective standards. Since the standard review involves more subjective standards with fewer built-in protections, the process will also involve additional public review, process and time.

Gallagher & Gallagher advised Boulder County on these rules.

The U.S. Department of Justice recently announced two settlements that will end eight years of contentious litigation for the settling parties concerning the B.F. Goodrich Superfund Site and groundwater in the Rialto Colton Basin.  See the Department of Justice announcement here.

For our clients, including the County of San Bernardino and others, these settlements will bring favorable closure to eight years of contentious litigation involving over fifty parties. Response costs are estimated to be in excess of $150 million.  Past operations by various industrial operations, including defense contractors, the Department of Defense and/or fireworks companies, released perchlorate and TCE into the soil and groundwater, leading to two groundwater plumes in the basin.  The divisibility of harm between the two plumes was a contested issue in the litigation.  The settlements provide protection to the settling parties not only through CERCLA section 113(f)(2), but also California Code of Civil Procedure §§ 877 and 877.6, and federal and state common law.

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