On June 25, 2013, along with other members of the West Virginia Chamber of Commerce’s Environmental Committee, we met in Philadelphia with EPA Region III Regional Administrator Shawn M. Garvin and about a dozen members of his senior staff. The meeting was the latest in an annual series of Chamber “Fly-Ins” to Philadelphia, started many years ago for the purpose of allowing West Virginia business leaders to share their views about key environmental issues and ask questions about EPA’s approach to oversight (or direct implementation) of the various federal regulatory programs. The Chamber had shared in advance a detailed (seven-page) agenda of questions to guide the discussions.

In his opening remarks, Garvin identified the same “big 3” areas of activity for Region III, which had not changed from last year’s meeting: (1) the Chesapeake Bay TMDL implementation process, (2) Mountaintop Mining, and (3) Shale Gas operations. West Virginia was lauded for its leadership in the Chesapeake Bay clean-up efforts, including in particular the nearly-completed $40 million regional wastewater treatment plant being built in Moorefield. Mountaintop mining was not mentioned again during the entire three-hour meeting.

As for shale gas development activity, Garvin described how the various government entities are still in the midst of “trying to set the bar” for those in the industry, including “figuring out what the states will do, what EPA will do,” and so forth. (He did not acknowledge that existing laws and regulations already specify particular roles for EPA and state environmental agencies.) With respect to areas of concern, there may be a broad range. For example, Garvin said he recently completed a tour of shale gas areas in northern W.Va. and Pennsylvania, meeting with local residents. Originally, the focus of the tour was on questions concerning the impact of gas operations on groundwater. However, after being in the field, Garvin stated that his biggest take-away was the potentially injurious nature of the air emissions impacts of such operations. In particular, he described a couple who lived in a farmhouse a few hundred yards from a gas well pad who “could not close their windows quick enough” to escape the emissions when there was a periodic release from the well. There was no mention of what was being released.

Leaving the detailed discussion of the various environmental media issues to his top managers in the program areas (air, water, waste), Garvin emphasized that he believes one of the most important overriding concepts in complying with any of the standards is “sustainable practices.” If there are alternative ways of satisfying a regulatory requirement, the best will be that which meets EPA’s goal of “sustainability” (mentioning, for example, the “green completions” that will be required for gas wells under the New Source Performance Standards, or NSPS, issued by EPA in 2012 (see Client Alert, “EPA Issues Final Rule Targeting Air Emissions from Oil and Gas Operations,” April 25, 2012) ). Towards that end, EPA also intends to continue to find ways to encourage “knowledge transfer,” by and between different governmental units and the regulated community to provide lessons as to how others in their industry have “gotten to a better place.”

In this regard, Garvin was asked about what steps the various EPA regional offices take to ensure consistency amongst them with respect to application of the environmental regulations. His initial response was to observe that “those who are doing more want consistency, and those who are doing less want flexibility.” EPA’s role, according to Garvin, is to ensure that the “floor” is consistent, while avoiding blind application of a “cookie cutter approach” that may be inappropriate in some cases.