It’s Time to Face the Music: Harms of Noise Pollution and the EPA’s Ineffective Regulation

By Isabella DiCosmo, Fair Shake Legal Intern

We live in a loud world where noise is all around us. While there is noise we enjoy, like music, there is noise that can hurt us – noise pollution. National Geographic defines noise pollution as “any unwanted or disturbing sound that affects the health and well-being of humans and other organisms.” Common contributors of noise pollution are road traffic, planes, garbage trucks, construction, manufacturing processes, and leaf blowers. While we cannot see it, noise pollution has very real effects on human health and the environment.

In addition to the more obvious side effects, like hearing loss, noise pollution also contributes to the exacerbation of cardiovascular disease, type-2 diabetes, sleep disturbances, stress, mental health and cognition problems (like memory and attention deficits), and childhood learning delays. These harms compound in environmental justice communities. The Center for Disease Control and Prevention (CDC) uses the phrase “health disparities” to describe this occurrence. The CDC defines health disparities as “preventable differences in the burden of disease, injury, violence, or in opportunities to achieve optimal health experienced by socially disadvantaged racial, ethnic, and other population groups, and communities.”

As for the environment, noise pollution interferes with animals’ ability to use sound for purposes of communicating, navigating, finding food, attracting mates, and avoiding predators. Noise pollution harms animals both on land and in the sea by disrupting sonar and echolocation.  Natural sounds (from biological sources as opposed to anthropological sources) have been found to reduce pain, lower stress, improve mood, and enhance cognitive performance.

While noise pollution poses a substantial threat to human health and the environment, the Environmental Protection Agency (EPA) charged with regulating it has been largely inactive under its Congressional authority to do so within the Noise Control Act of 1972 (NCA). Under the NCA, the EPA is given the authority to identify and regulateproducts that are “major sources” of noise. The NCA also leaves the primary responsibility of noise control to state and local governments, while recognizing that federal action is needed for major noise sources in commerce.

An advocacy organization recently filed a citizen suit against the EPA, asserting that the agency has failed to perform a variety of responsibilities Congress assigned to it under the NCA. These duties include the duties to review, revise, and supplement published noise criteria and published information on safe levels of environmental noise, identify and regulate major sources of noise, develop low-noise-emission products, designate products and promulgate labeling regulations, coordinate and consult regularly with federal agencies and report on their noise control programs, and assist state and local governments in developing effective noise control programs.

The suit relies on studies documenting noise pollution health risks. More updated noise pollution regulations will benefit the public, as they will be better protected against the harms noise pollution causes. Additionally, coming into compliance with new, updated regulations puts a burden on industry. Industry members, including manufacturers of products such as personal listening devices, outdoor power equipment, and transportation technologies, will have to pay the cost of compliance. For example, in the aircraft industry, the compliance costs to modify and retest airplane engines range from $1 million to $3 million per engine. However, the cost of noise pollution in the aircraft industry alone is about $72 million. The compliance cost seems like a small price to pay for the protection of people’s hearing and reduction of harms to the environment.

West Virginia Zoning Case's Potential Impact on Local Control of Oil and Gas Activities

SWN Production Company, LLC v. City of Weirton and City of Weirton Board of Zoning Appeals

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SWN Production Company, LLC, a Texas-based natural gas developer, is appealing a West Virginia circuit court decision upholding local zoning laws’ ability to limit the location of oil and gas activities. The appeal’s outcome may greatly affect the ability of local governments to control oil and gas activities in their communities.

Some Background:

In June 2021, SWN, also known as Southwest Energy, filed an application with the City of Weirton for a conditional use permit to locate a well pad on a 300-acre site that was zoned to allow for oil and gas extraction, and which required a 250-foot setback for schools, churches, and residences. In response to SWN’s application, the Weirton Zoning Board of Appeals rezoned the site to require a 2,500 setback and disallowed oil and gas extraction as a permitted land use under the city’s “Unified Development Ordinance.” SWN submitted its application prior to the new ordinance taking effect, but, on October 1, the zoning board denied SWN’s permit application because the proposed well pad would increase traffic and put stress on the surrounding infrastructure.

On October 18, SWN applied for a permit with the West Virginia Department of Environmental Protection (DEP) to drill on the site. The DEP granted the permit in February 2022.

SWN ultimately filed suit against the city and zoning board challenging their authority to deny the permit, whether under the old or new “Unified Development Ordinance.” SWN’s lawsuit included many legal issues, but the most important was SWN’s contention that the state laws which granted the DEP authority to allow or deny permits “preempted” local zoning regulations’ ability to regulate oil and gas activity within city limits.

What’s preemption? Basically, preemption means that when the laws of one governmental authority conflict with the laws of another governmental authority, then the laws of whichever is the higher authority prevails. For example, if state laws conflict with federal laws, then federal law prevails. In the Weirton scenario, SWN argued that state laws take precedence over local laws, meaning that the DEP’s authority and decision to grant SWN a permit preempts the city’s zoning laws.

In August 2022, the judge overseeing the case in Brooke County, WV, ruled that the state laws governing oil and gas activities did not preempt zoning ordinances. The judge’s decision stated:

• oil and gas companies are permitted to operate in our state; that the operation of such companies, and the permitting of such companies to operate, is to be largely, if not completely regulated by the state DEP; and that local municipalities, although not permitted to completely ban the lawful operation of oil and gas companies within their city limits, are permitted to pass reasonable and rational zoning ordinances/regulations to allow said companies to operate therein while protecting the health, welfare and safety of its citizens.

 SWN then appealed the judge’s ruling to the West Virginia Intermediate Court of Appeals, arguing that the circuit court judge got the preemption question wrong.

The Appeal:

In West Virginia, the Land Use Planning Act grants authority to municipalities to adopt zoning laws, and that zoning ordinances must promote the “general public welfare, health, safety, comfort, and morals.” Zoning ordinances must also, among other things, promote orderly development within city limits, designate land uses, establish standards for land use, and seek to regulate traffic flow to lessen congestion. Importantly, the Land Use Planning Act, explicitly prohibits zoning rules that regulate natural resource development outside of municipalities or urban areas, but the law does not place that same restriction on natural resource development inside municipalities or urban areas. “Municipalities” are cities and incorporated areas, and under the Land Use Planning Act, “urban” means land within the jurisdiction of a municipal planning commission, such as a Weirton’s planning commission.

However, as it did before the circuit court, SWN argues that two state laws preempt all local zoning laws in West Virginia. Those laws are the Oil and Gas Act and the Horizontal Well Control Act. Specifically, SWN relies on language from the Horizontal Well Control Act that states:

•  “the [DEP] secretary has sole and exclusive authority to regulate the permitting, location, spacing, drilling, fracturing, stimulation, well completion activities, operation, any and all other drilling and production processes, plugging and reclamation of oil and gas wells and production operations within the state.”

 According to SWN, this language about the DEP secretary’s “sole and exclusive authority” to regulate permitting and “location” of oil and gas operations preempts all local zoning regulations.

The City of Weirton countered SWN’s arguments in three ways:

1. While the Land Use Planning Act explicitly says that zoning regulations cannot limit natural resource development outside of municipalities or urban areas, the law does not impose that same restriction on zoning laws that regulate natural resource development within municipalities. Therefore, municipalities can regulate oil and gas activities through zoning ordinances.

2.  Two, for a state law to preempt a local law in West Virginia, one of two conditions must be met. One, the state law must contain explicit language that says the state law preempts local laws, OR, two, the state legislature must have clearly intended for the state law to preempt local laws. The city argued that there is no explicit language in the Oil and Gas Act or the Horizontal Well Control Act that says local zoning ordinances are preempted. For instance, the language cited by SWN in the Horizontal Well Control Act that gives the DEP secretary sole and exclusive authority over permitting and well location says nothing about preemption of local zoning ordinances. As for the state legislature clearly intending for the Oil and Gas Act or the Horizontal Well Control Act to preempt local zoning ordinances, the city argued that SWN provided no evidence at all that the state legislature had intentions of preemption.

3.  The city argued that there is no conflict between regulating oil and gas activities through zoning laws and the state’s regulation of permits through the Oil and Gas Act and the Horizontal Well Control Act. That is, local zoning ordinances and the state laws regulate two very different types of activity. Zoning laws are concerned with orderly land use and development within municipalities, but the Oil and Gas Act and the Horizontal Well Control Act are concerned with state-level environmental regulation of oil and gas activities (for example, whether gas development complies with state environmental regulations). According to the city, because zoning ordinances and the state law serve two very different purposes there is no conflict or preemption issue for a court to resolve.

Under West Virginia law, if the state allows an activity, zoning ordinances cannot ban that activity. However, zoning ordinances can regulate that activity, and the city cites many instances where that is the case. For example, the state grants liquor licenses and zoning laws cannot revoke liquor licenses. But, local zoning laws can regulate where liquor is sold, just as a city can determine other types of land use (e.g., commercial use, residential use, mixed used).

The city also pointed to cases regarding fracking activity where zoning laws crossed the line into a ban and that Weirton’s zoning did no such thing. For instance, in 2011, Morgantown enacted a total ban on fracking within one mile of the city limits, considering fracking an environmental hazard. When an oil and gas company challenged that ban, the court in Northeast Natural Energy, LLC v. The City of Morgantown, ruled that the city could not ban an activity (fracking) allowed by the state. The city also could not use its zoning power to regulate fracking based on environmental concerns because the state regulated whether industry is in compliance with environmental regulations. Similarly, when Fayette County, WV enacted a county-wide ban on fracking wastewater disposal because of concerns over water contamination, the court in EQT v. Wender held that the county could not ban an allowed activity. Also, the ban was invalid because it was concerned with environmental contamination, which the state DEP regulates.

The City of Weirton argued that its use of zoning is very different from the Morgantown and Fayette County examples because the city (1) did not ban fracking, and (2) the city did not deny SWN’s permit based on environmental issues that the state DEP already regulates. Instead, the city denied the permit based on traditional zoning issues of traffic regulation, whether the noise and light produced by gas activity would negatively affect surrounding businesses and residents, and whether gas activity was compatible with the city’s overall economic development plan.

What’s Next:

The Intermediate Court of Appeals heard arguments on September 19, 2023 and will issue its decision in the next months or early next year. The court might uphold the circuit court’s decision and reject SWN’s claim that the state laws preempt all local zoning laws. The court might also modify the circuit court’s decision by stating more precisely how zoning ordinances can regulate oil and gas activities withing city limits. Or the court might accept SWN’s arguments and declare that all zoning laws are preempted. If that were the case, as SWN admitted, as long as the DEP issued a permit and the center of a well pad was 625 feet from an occupied building, then fracking well pads would be allowed in all neighborhoods. Lastly, as the Biden administration just announced the location of hydrogen hubs in West Virginia, such as in Follansbee, whether cities can use zoning regulate that type of industrial activity will surely be a future legal issue in West Virginia and other states.

References:

 The briefs submitted by SWN (petitioner) and the City of Weirton (respondent) are available at:

http://www.courtswv.gov/intermediate-court/Calendar/2023/Dockets/09-19-23ad.html

https://www.weirtondailytimes.com/news/local-news/2022/08/cuomo-zoning-not-pre-empted-by-regulations/

 Written by Daniel Weimer, Fair Shake Legal Intern

FAIR SHAKE BRINGS ON NEW LAWYER TO EXPAND SERVICES FOR COMMUNITIES WITH LEAD EXPOSURE

Fair Shake Environmental Legal Services has provided assistance to communities experiencing lead exposure for over seven years. While the mission of Fair Shake is to foster equal access to environmental justice in the Appalachian Region, the variation of laws governing lead between state and local jurisdictions have been a barrier to the expansion of services for lead exposure. That is why Fair Shake is excited to announce that Brooke Christy, a recent Pitt Law graduate, has joined Fair Shake’s staff as an Equal Justice Works Fellow dedicated to specializing in lead exposure. Brooke will be responsible for a wide variety of tasks, including direct representation of tenants with lead exposure, collaborating with community organizations to better support their existing efforts, and promoting increased capacity of pro-bono lead litigation.  

This fellowship was intentionally designed to have broad programming opportunities because we understand that the needs of our community partners vary significantly across regions. Brooke will be leaning on her ten years of community organizing experience and legal education to bring attorneys and organizers closer together in the fight to prevent lead poisoning. She also looks forward to building upon relationships that Fair Shake has established in Ohio, West Virginia, and Pennsylvania to identify how we can best serve local communities and build sustainable programming for us to continue this work for years to come.  

We recognize that while the rates of lead poisoning have significantly dropped in recent decades, the eradication of lead poisoning will require creative approaches on how to best serve our most vulnerable communities. Lead exposure continues to have disproportionate impacts on historically marginalized communities, including communities of color and residents with low-income. Tenants and their families are also uniquely vulnerable to lead exposure due to barriers to access preventative and remediation resources. Compounding this, the aging infrastructure of the Appalachian Basin puts local communities at higher risk than the national average. 

Since joining Fair Shake at the end of September, Brooke has started reaching out to community partners to discuss potential collaborations. Such collaboration can include helping draft model municipal ordinances, assisting with community education programing, creating “Know Your Rights” guides tailored to localities, providing technical support for organizations receiving federal funds for lead remediation, and accepting referrals for tenants seeking legal counsel.  

If you or an organization that you work with are interested in similar services, please reach out to Brooke at bchristy@fairshake-els.org or (267) 817-5917. 

We also plan to be in attendance at several Lead Poisoning Prevention Week events, including Cleveland Lead Advocates for Safe Housing (CLASH) resource fair at East Cleveland Public Library on October 28. We hope you will join us in celebrating Lead Poisoning Prevention Week by finding an event near you or clicking here to learn more about lead.  

Finally, we would like to give a special thanks to Fenwick & West LLP for sponsoring this fellowship.  

Pleasants Power Station - Potential Permits and Approvals Needed for Pyrolysis Plans

Omnis Fuel Technologies, a California based company, has purchased the Pleasants Power Station, in Pleasants County, West Virginia.  Omnis Fuel intends to retrofit the coal fired power plant into a facility that manufactures synthetic graphite using a form of pyrolysis it has developed.

Pyrolysis is where a hydrocarbon is heated at extremely high temperatures in an inert environment to make synthetic graphite. The facility will also produce electricity powered by the hydrogen byproduct of that process. The Pleasants Power Plant was slated to close prior to the Federal Energy Regulatory Commission approving the sale of the coal fired power plant to Omnis at the end of July, 2023.

There are many steps Omnis will need to take before the current power plant becomes a graphite manufacturing and hydrogen power producing facility. Omnis states that it will need to purchase and convert the neighboring Solovay chemical company property to effectuate the production of hydrogen powered energy. Omnis will also need to retrofit the power plant so that it can produce synthetic graphite.  For the immediate future, Omnis intends to continue to operate the plant as a coal fired power plant.

Omnis has not announced a timeline for its proposed facility. However, Omnis will undoubtedly need to apply for permits with West Virginia Department of Environmental Protection (DEP). To date there has been nothing filed of record.  The very first step Omnis will need to take will be to immediately file for Change of Ownership on the existing permits to continue operations of the coal fired plant.  

Because the technology and process Omnis states they intend to use is their own developed form of pyrolysis for graphite production, there is not a tried-and-true framework for the exact permits for their projected facility. Looking across the state to Amstead Graphite Materials, LLC in Anmoore, West Virginia, can provide an example of what type of permits might be required.  Amstead is a synthetic graphite manufacturing facility the predecessor of which began producing graphite circa 2010. Based on the Amstead facility permits, Omnis is likely to require, Construction/Modification Permits, Air Quality General Permits, and National Pollutant Discharge Elimination System (NPDES) Permits which are likely to have the following requirements:

• Permit to Construct Modify or Relocate: Because the facility needs to be retrofitted from a           coal fired power plant to a graphite manufacturing and hydrogen energy plant, this permit          is likely to apply. Prior to applying for this permit Omnis would need to meet with DEP             Air Quality Permitting to review the proposal for the facility. After the meeting Omnis      would file a permit application which would be advertised by DEP in the area of the current Pleasants Power Plant. This public notice allows 30 calendar days for written public         comment and provides provisions for requesting a public meeting. The Environmental          Protection Agency (EPA) would also provide public notice.            

• Air Quality Permit – This is the operating permit. Based off the Amstead facility, this could          be a Title V Permit, which implements Title V of the 1990 Federal Clean Air Act      Amendments. Once Omnis applies for this permit, it is subject to legal advertisement in a             local newspaper and includes a 30-day public comment, however interested parties may            request an extension. Public meetings are based on the level of public interest.  This type      of permit, if approved, is valid for five years and must be renewed six months prior to the             end of the term. This permit is also subject to further review by the EPA.

• NPDES Permit:  The Division of Water and Waste Management administers this permit    program which is a federally delegated program pursuant to the Clean Water Act. NPDES      permits usually require public notice and a period for public comment. A general NPDES             permit is typically issued for five years. There is also a period of public comment on every           permit reissuance. This permit is also subject to review by the EPA.

However, there are many unknowns about the project, and the facility has many steps before Omnis even reaches the point of applying for permits. Some items to consider are that this facility will ultimately convert a coal fired plant to a facility generating hydrogen power, and it is possible that this facility will qualify for Inflation Reduction Act funds which included $369 billion to tackle climate change.

But there are potential environmental pitfalls, the Amstead facility can serve as an example of what environmental concerns could arise. Amstead was cited by the U.S. Environmental Protection Agency (EPA) for multiple violations of pollutant discharge and temperature control issues impacting waters of the state under the Clean Water Act before entering a Consent Order. Additionally, synthetic graphite is touted as necessary to reduce greenhouse gas. Graphite is used in a variety of industries, including but not limited to batteries, brake linings, lubricants, and powdered metals.  The most prevalent use of graphite is in batteries specifically in relation to the electric-vehicle and solar markets. Although synthetic graphite is used to support green energy and products which aim to lower greenhouse gas emissions, synthetic graphite is traditionally created from heating multiple derivatives of oil and coal (coke, distilled tars, carbon black, and recycled graphite) together at extremely high temperatures over a period of time.  So, despite the emerging need for graphite and its importance in green energy, the creation of synthetic graphite using traditional methods of production tends to generate high levels of greenhouse gasses and can create the temperature control issues for which Amstead was cited. Additionally, hydrogen energy as a means to limit greenhouse gas emissions has been criticized because it moves greenhouse gas emissions to a different part of the energy production chain. This is because hydrogen feedstock that is produced from coal or gas may produce significant emissions in the process of generating the hydrogen. So, while using hydrogen to generate energy is low emissions, creating hydrogen is not necessarily low emission. Omnis’s pyrolysis manufacturing process may prevent excessive emissions in graphite production thus solving the concern of high emissions for both portions of the facility. Omnis is currently working with Zeeco, a company that specializes in combustion equipment for the oil and gas industry and carbon capture equiptment.  However, because this is a process that Omnis and Zeeco are developing, the actual process and environmental impact will be unknown until Omnis files permit applications which include its plans.

With so many unknown elements until Omnis begins applying for permits, the public in Pleasants County, West Virginia will have to wait and see if this project comes to fruition and how it takes shape.  New announcements should be able to be found either on the West Virginia DEP’s website or in local newspapers. The permit histories can be found using the West Virginia DEP’s Application Xtender. Water quality permits can be found by navigating to “Permits” and inputting “WV0023248” into the Primary ID box. Air quality permits can be found by navigating to “PermitsAir” and searching for “Pleasants Power Station.”

Written by Tina Perez, Fair Shake Legal Intern