Late last week, a South Carolina district court reinstated the Obama administration’s 2015 Clean Water Rule (referring to it as “the 2015 WOTUS rule”) in 26 states, including Pennsylvania, Ohio, New York, Maryland, New Jersey and the New England states. The decision overturns a move by the Trump administration earlier this year to delay the applicability date of the 2015 WOTUS rule until early 2020 and brings the Rule’s definition of “waters of the United States” (WOTUS) into effect in these states, at least for the time being. Unless the South Carolina decision is overturned or invalidated, the reinstatement of the 2015 definition of WOTUS could have significant Clean Water Act (CWA) permitting, compliance and enforcement implications for regulated entities in these 26 states, given that the 2015 definition of WOTUS is widely regarded by industry as unreasonably expanding the types of waterbodies under U.S. EPA and U. S Army Corps of Engineers’ jurisdiction.
Please read more about the decision in this Alert.
Since its enactment in 1972, the federal agencies who administer the Clean Water Act (the Act), the Environmental Protection Agency (EPA) and the United States Army Corps of Engineers (the Corps), have taken the position that the definition of “waters of the United States” governed by the Act (also known as “jurisdictional waters”) does not include groundwater. Regulation of groundwater therefore falls outside the scope of the Act. To read more: click here.
On January 22, 2018, the U.S. Supreme Court unanimously held that lawsuits challenging the Obama administration’s 2015 Clean Water Rule (Rule) – a landmark revision to the definition of “waters of the United States” (WOTUS) that arguably expanded the scope of the federal government’s authority under several regulatory programs, including those associated with wastewater discharges and dredge/fill activities under the Clean Water Act (CWA) – must be filed in federal district courts instead of the federal courts of appeal. Nat’l Assoc. of Mfrs. v. Dept. of Def., No. 16-299 (Jan. 22, 2018) (NAM). While the Supreme Court’s decision in NAM did not address the merits of the lawsuits challenging the Rule, it did determine the appropriate forum for those legal challenges. To read more: click here.
On March 28, 2017, President Donald Trump signed an Executive Order entitled “Promoting Energy Independence and Economic Growth,” with the stated policy of “promot[ing] clean and safe development” of domestic energy resources and ensuring an affordable and reliable supply of electricity, while “avoiding regulatory burdens that unnecessarily encumber energy production, constrain economic growth, and prevent job creation.” Although the Executive Order does not itself withdraw any rules issued by the U.S. Environmental Protection Agency (EPA) or other agencies, it clearly reflects President Trump’s intent to drastically change course from the Obama administration’s stance on climate change and to seek reducing environmental regulation of, among other sources of greenhouse gases, coal-fired power plants and oil and natural gas operations.
For more information, read our Administrative Watch.
Effective March 2, 2017, the U.S. Environmental Protection Agency (EPA) has withdrawn the information collection request (ICR) entitled, “Information Collection Effort for Oil and Gas Facilities.” EPA issued the final ICR in November 2016, requiring more than 15,000 owners and operators in the oil and natural gas industry to submit information that would support a future EPA rulemaking to reduce methane emissions from existing sources. The ICR required companies to provide a significant amount of information in two phases, known as the Part 1 Operator Survey and Part 2 Facility Survey. EPA has withdrawn both parts of the ICR, which means that owners and operators who received a letter directing them to complete an ICR survey are no longer required to respond.
According to an official withdrawal notice that is expected to be published in the Federal Register on March 7, 2017, “[t]he withdrawal is occurring because EPA would like to assess the need for the information that the agency was collecting through these requests, and reduce burdens on businesses while the Agency assesses such need.” The notice also indicates that EPA acted in response to a letter from a group of states expressing concern for burdens on businesses.
Today the U.S. Environmental Protection Agency (EPA) announced the availability of several highly-anticipated regulatory measures affecting both existing and new emission sources in the oil and natural gas sector. EPA has released the pre-publication version of its final New Source Performance Standards (NSPS) rulemaking to reduce emissions of methane and volatile organic compounds from new, modified, and reconstructed sources. The agency received more than 900,000 public comments on the proposed NSPS rulemaking that was released in August 2015.
In March, EPA announced its intent to also regulate methane emissions from existing sources in the oil and natural gas sector. Today EPA issued a draft Information Collection Request (ICR) directing oil and natural gas companies to submit extensive information to support the development of a federal rule targeting existing sources. Public comments will be accepted for 60 days following publication of the draft ICR in the Federal Register. As a related measure, EPA will soon release a voluntary “Request for Information” inviting industry, government, and public interest stakeholders “to provide information on innovative strategies to accurately and cost-effectively locate, measure and mitigate methane emissions.”
Additionally, today EPA released the pre-publication version of its final Source Determination Rule aimed at clarifying the term “adjacent” for air permitting purposes. The final rule is intended to clarify when oil and gas equipment and activities constitute a single source that is subject to “major source” permitting requirements under the Clean Air Act. In general, according to EPA’s fact sheet, the final rule provides that pollutant-emitting activities are adjacent “if they are located on the same site or on sites that share equipment and are within 1/4 mile of each other.”
Finally, EPA also released the pre-publication version of a final Federal Implementation Plan rule to clarify air permitting requirements for oil and natural gas sources located in Indian Country, specifically.
On May 4, 2016, seven environmental groups followed through on a prior threat to sue the United States Environmental Protection Agency (EPA) by filing a lawsuit against the EPA in a bid to force the agency to develop tailored rules for the disposal, storage, transportation, and handling of oil and gas waste under the Resource Conservation and Recovery Act (RCRA) Subtitle D solid waste program. In an effort to trigger movement on the issue, the environmentalists had previously sent the EPA a 60-day Notice of Intent to Sue in August 2015; however, according to the environmentalists, the agency did not formally respond to the Notice. The Complaint, filed with the U.S. District Court for the District of Columbia, alleges that the agency has not within the statutorily required three-year timeframe (1) reviewed and, where necessary, revised RCRA’s Subtitle D solid waste regulations for oil and gas waste, and (2) reviewed and/or revised its guidelines for state solid waste management plans for oil and gas waste.
For more information, read our Administrative Watch.
Today the U.S. Environmental Protection Agency (EPA) announced the next step in its strategy for reducing methane emissions from the oil and natural gas sector: regulating emissions from existing sources. According to EPA’s fact sheet, the agency will issue an Information Collection Request (ICR) “to require companies operating existing oil and gas sources to provide information to assist in the development of comprehensive regulations to reduce methane emissions.” EPA plans to reach out to stakeholders about the ICR process in the next few weeks and begin the formal ICR process next month. A draft ICR will be released for public comment.
On January 29, 2016, the U.S. Environmental Protection Agency (EPA) published in the Federal Register a proposed rule that would amend the Greenhouse Gas Reporting Program for the petroleum and natural gas systems source category at 40 CFR Part 98, Subpart W, which was revised as recently as October 2015. Specifically, EPA now proposes to add new monitoring methods for detecting leaks from oil and natural gas equipment in order to achieve consistency with the leak detection methods in the agency’s pending New Source Performance Standards rulemaking for the oil and natural gas industry. In addition, EPA is proposing to add emission factors for leaking equipment for use in the calculation and reporting of greenhouse gas emissions. Comments regarding the latest Subpart W rulemaking are due February 29, 2016.
On October 14, 2015, the United States District Court for the Western District of Pennsylvania invalidated several provisions of a Grant Township, Indiana County, Pennsylvania local ordinance that was intended to prevent an oil and gas operator from operating an injection well that had been permitted by the U.S. Environmental Protection Agency. In Pennsylvania General Energy Company, L.L.C. v. Grant Township, C.A. No. 14-209, 2015 U.S. Dist. LEXIS 139921 (W.D. Pa. Oct. 14, 2015), Pennsylvania General Energy Company, L.L.C. challenged the constitutionality, validity and enforceability of the Grant Township ordinance that sought to establish a self-described Community Bill of Rights Ordinance. For additional information, read our recent Administrative Watch.
On August 26, 2015, seven environmental groups sent the U.S. Environmental Protection Agency (EPA) a Notice of Intent to Sue the agency in an attempt to force the agency to develop tailored rules for oil and gas wastes under the Resource Conservation and Recovery Act (RCRA) Subtitle D solid waste program. The groups argued that the agency has not within the statutorily required three-year timeframe (1) reviewed and, where necessary, revised RCRA’s Subtitle D solid waste regulations for oil and gas wastes, and (2) reviewed and/or revised its guidelines for state solid waste management plans for oil and gas wastes. For additional information, read our recent Administrative Watch.
Today the U.S. Environmental Protection Agency (EPA) announced that it will host three public hearings in September regarding proposed Clean Air Act rulemaking actions that will affect the oil and gas industry. Two hearings will be held in Denver and Dallas on the same day, September 23, 2015. A third hearing is scheduled to be held on September 29, 2015, in Pittsburgh. The hearing in Pittsburgh will take place at the William S. Moorhead Federal Building downtown. For additional information about EPA’s proposed rules, check out our Administrative Watch: EPA Announces Clean Air Act Proposals Targeting the Oil and Natural Gas Sector.
Today the U.S. Environmental Protection Agency (EPA) formally announced its highly-anticipated proposal to regulate methane emissions from the oil and natural gas sector. Specifically, EPA is proposing to amend the New Source Performance Standards (NSPS) rule for the sector, NSPS Subpart OOOO, to include standards for reducing methane as well as volatile organic compound (VOC) emissions from sources located across the oil and natural gas source category (i.e., production, processing, transmission and storage). This proposal is part of the agency’s broader strategy for reducing emissions of ground level ozone-forming pollutants from the oil and gas sector. Public comments will be accepted for 60 days following publication in the Federal Register, and EPA is planning to host public hearings on the rulemaking. In conjunction with today’s announcement regarding the proposed NSPS revisions, EPA also announced proposed guidelines for states to follow in order to reduce VOC emissions from existing oil and gas sources located in areas where the ambient air quality does not meet certain thresholds with respect to ozone.
The U.S. Environmental Protection Agency (EPA) is revising important definitions in the New Source Performance Standards (NSPS) rule for the oil and gas sector, NSPS Subpart OOOO, in response to stakeholder petitions. In a final rule published today, EPA is revising the definition of “low pressure gas well”, in order to identify the wells that cannot implement a reduced emission completion (otherwise known as REC or “green completion”) because of a lack of necessary reservoir pressure. EPA is also revising the definition of “storage vessel” to remove references to “connected in parallel” and “installed in parallel”, in order to clarify which storage vessels are subject to NSPS Subpart OOOO. The revisions are effective immediately.
The U.S. Environmental Protection Agency (EPA) Office of Inspector General (OIG) recently released a report entitled, “Enhanced EPA Oversight and Action Can Further Protect Water Resources From the Potential Impacts of Hydraulic Fracturing.” The report evaluates how EPA and state agencies have used existing authorities to address the potential impacts of hydraulic fracturing on water resources, and also recommends two areas for EPA improvement. First, the OIG recommends that EPA improve its oversight of Underground Injection Control (UIC) permit issuance for the use of diesel fuels in hydraulic fracturing. Second, the report recommends that EPA develop an action plan to address public comments submitted in response to the agency’s May 2014 advance notice of proposed rulemaking (ANPR) related to possible federal chemical disclosure requirements. The OIG found that EPA does not have a plan for responding to the comments submitted in response to the 2014 ANPR, nor for making a final determination on whether to proceed with a formal rulemaking.