EPA Files Suit Against Colorado Operator

By: Michael K. Reer

On June 26, 2017, the U.S. Environmental Protection Agency filed suit against a Colorado operator in the U.S. District Court for the District of Colorado. Specifically, the suit alleges that the operator failed to ensure that vapor control systems on 86 batteries of storage tanks were sufficiently retaining volatile organic compounds. The suit represents one of the first post-Obama enforcement actions by EPA concerning the Oil and Gas National Enforcement Initiative. The lawsuit seeks injunctive relief and penalties each day each violation occurred. Even if only one violation occurred per day, EPA’s requested damages would exceed $150 million.
Thursday, July 13, 2017

EPA Proposes to Re-Evaluate "Waters of the United States" Definition

By: Michael K. Reer

On June 27, 2017, the U.S. Environmental Protection Agency and U.S. Army Corps of Engineers released a proposed rule for publication in the Federal Register

that would rescind the current definition of “waters of the United States” under the Clean Water Act and re-codify the pre-2015 definition utilized by the agencies. The agencies moreover announced that the proposed rule is the first step in a “comprehensive, two-step process intended to review and revise the definition of ‘waters of the United States’ consistent with” President Trump’s February 28, 2017 Executive Order “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule.” Once the pre-2015 definition is re-codified, the agencies state that they will pursue a notice and comment rulemaking to conduct a substantive re-evaluation of the definition.


During the second-step re-evaluation, the agencies state that they will develop a new definition that takes “into consideration the principles that Justice Scalia outlined in the Rapanos plurality opinion.” In Rapanos, Justice Scalia authored a plurality opinion that concluded that “waters of the United States” – and therefore the jurisdiction of federal agencies under the Clean Water Act – include only those relatively permanent, standing, or continuously flowing bodies of water. Conversely, Justice Scalia’s plurality opinion stated that water bodies that flow intermittently or ephemerally are not “Waters of the United States.” Moreover, Justice Scalia’s opinion stated that wetlands are not jurisdictional based on a mere hydrologic connection to “waters of the United States.”  Instead, for a wetland to be considered jurisdictional, there must be an inherent ambiguity concerning where the jurisdictional water ends and the wetland begins.
Wednesday, July 12, 2017

EPA to Delay and Reconsider Methane Rule

By: Michael K. Reer

On April 18, 2017, the U.S. Environmental Protection Agency announced a delay and reconsideration of “Oil and Natural Gas Sector: Emission Standards for New, Reconstructed and Modified Sources” a final rule published by the Obama Administration that finalized new emissions regulations applicable to new, reconstructed, or modified sources in the oil and natural gas sector. Even though the new source emissions requirements were finalized by the previous administration, Clean Air Act Section 307(d)(7)(B) allows the agency to convene a proceeding for reconsideration of a final rule issued under the CAA if a party raises an objection to the final rulemaking and if it was impractical to raise the objection within the public comment period. EPA states that as a result of the reconsideration, the agency will issue a 90-day stay of the compliance date for the fugitive emissions monitoring requirements and that sources need not comply with the requirements while the stay is in effect.
Monday, April 24, 2017

EPA Requests Feedback on Expendable Regulations

By: Michael K. Reer

On April 10, 2017, the U.S. Environmental Protection Agency released a request for comment for publication in the Federal Register. The request for comment seeks public comments “on regulations that may be appropriate for repeal, replacement, or modification.” Through comments to EPA, operators may now suggest regulations that they believe inhibit the development of oil and natural gas.

The request for comment is issued pursuant to President Trump’s February 24, 2017 executive order “Enforcing the Regulatory Reform Agenda” – which directed federal agencies to establish a Regulatory Reform Task Force. The Task Force is responsible for evaluating existing regulations and making recommendations to agency heads regarding their repeal, replacement, or modification. Among other items, the executive order directs the Task Force to identify regulations that: eliminate jobs, or inhibit job creation; are outdated, unnecessary, or ineffective; impose costs that exceed benefits; create a serious inconsistency or otherwise interfere with regulatory reform initiatives and policies; or derive from or implement executive orders or other presidential directives that have been subsequently rescinded or substantially modified.

Comments are due 30 days after the request is published in the Federal Register.
Thursday, April 13, 2017

EPA Requests Extension in Methane Lawsuit

By: Michael K. Reer

On April 7, 2017, the U.S. Environmental Protection Agency requested that the U.S. Court of Appeals for the District of Columbia Circuit temporarily halt a lawsuit brought by the American Petroleum Institute that challenges EPA’s recent new source performance standards for sources in the oil and gas sector. EPA stated in a filing that it will review the challenged regulation in accordance with President Donald Trump’s March 28, 2017 executive order that directs EPA to review the final rulemaking and, “if appropriate . . . suspend, revise, or rescind” the final rulemaking.

Thursday, April 13, 2017

EPA Previews New Electronic Submission Tools

By: Michael K. Reer

On April 5, 2017, the U.S. Environmental Protection Agency previewed new electronic reporting tools at a meeting of the Environmental Council of the States. The electronic reporting tools are intended to streamline certain reports required by EPA, including hazardous waste reporting and air emissions reporting. New electronic tools for hazardous waste reporting will allow permittees to use electronic manifest systems, replacing the carbon-paper manifest systems currently in use. New electronic tools for air emissions data will allow operators to issue a combined submission for the separate reports currently required by EPA’s Toxic Release Inventory, Greenhouse Gas Reporting system, Compliance and Emissions Data Reporting Interface, and the National Emissions Inventory. Allowing operators to combine these separate reports into a single electronic submission may noticeably decrease reporting costs and time commitments.
Friday, April 07, 2017

BNA Posts HFB Insights on Risk Management Program Changes

By: Michael K. Reer

On March 21, 2017, Bloomberg BNA published “EPA Changes to the Risk Management Program,” an HFB article discussing recent amendments to EPA’s risk management regulations. The amendments to the risk management program have the potential to affect a wide array of industries, including midstream oil and gas facilities, chemical manufacturers and wholesalers, food and beverage manufacturers, petroleum wholesalers, utilities, warehouses, and certain local government entities (such as wastewater treatment plants).

The regulations are scheduled to take effect June 19, 2017.
Tuesday, March 21, 2017

EPA Withdraws ICR for Oil and Gas Operators


On March 2, 2017, the U.S. Environmental Protection Agency issued notice that the agency is withdrawing its requests that owners and operators in the oil and natural gas industry provide information on equipment and emissions at existing oil and natural gas facilities. Upon publication in the Federal Register, the notice will formally withdraw the Information Collection Request issued by EPA in 2016 to more than 15,000 owners and operators in the oil and natural gas industry.

The ICR was comprised of two parts, an “operator survey” that requested basic information on the numbers and types of equipment at onshore oil and gas production facilities and a “facility survey” that requested detailed information on sources of methane emissions and emissions control devices or practices.

EPA states in the notice that the “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. This also comes after the Agency received a letter on March 1, 2017 from nine state Attorneys General and the Governors of Mississippi and Kentucky, expressing concern with the burdens on businesses imposed by the pending requests.”
Friday, March 03, 2017

Trump Administration Orders Review of Waters of the U.S. Rule



On February 28, 2017, President Donald Trump signed an executive order that requires the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers to review the final “Waters of the U.S.” rulemaking published on June 29, 2015. The “Waters of the U.S.” rulemaking defines the scope of waters protected under the Clean Water Act. Several states and industry associations challenged the final rulemaking upon publication, alleging that the definition exceeds the scope permitted by the Clean Water Act. The U.S. Court of Appeals for the Sixth Circuit is currently reviewing challenges to the merits of the final rule. Additionally, a challenge to the Sixth Circuit’s jurisdiction to review the final rule is currently pending before the Supreme Court of the United States.

The executive order requires that EPA and ACOE consider whether the final rulemaking ensures “that the Nation’s navigable waters are kept free from pollution, while at the same time promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the roles of the Congress and the States under the Constitution.” The executive order also requires that EPA and ACOE consider interpreting “Waters of the U.S.” in a manner consistent with Justice Antonin Scalia’s opinion in Rapanos v. U.S., 547 U.S. 715 (2006).

In Rapanos, Justice Scalia authored a plurality opinion that concluded that “Waters of the U.S.” – and therefore the jurisdiction of federal agencies under the Clean Water Act – includes only those relatively permanent, standing, or continuously flowing bodies of water. Conversely, Justice Scalia’s plurality opinion stated that water bodies that flow intermittently or ephemerally are not “Waters of the U.S.” Moreover, Justice Scalia’s opinion stated that wetlands are not jurisdictional based on a mere hydrologic connection to “Waters of the U.S.” Instead, for a wetland to be considered jurisdictional, there must be an inherent ambiguity concerning where the jurisdictional water ends and the wetland begins.  

Wednesday, March 01, 2017

SCOTUS to Review Clean Water Act Case


On January 13, 2017, the Supreme Court of the United States granted certiorari in Nat’l Ass’n of Manufacturers v. Dep’t. of Def., et al., a case from the U.S. Court of Appeals for the Sixth Circuit. The case arises from a challenge to the U.S. Environmental Protection Agency and U.S. Army Corps of Engineers “Waters of the U.S.” rulemaking, published June 29, 2015, which defined the scope of waters protected under the Clean Water Act. 


Several states and industry associations challenged the rulemaking upon publication, alleging that the definition exceeded the scope of the Clean Water Act. EPA and the Army Corps of Engineers allege that, under the Clean Water Act, judicial review of the final rulemaking must occur at the U.S. Court of Appeals. Several states and trade associations disagree, arguing that the Clean Water Act requires judicial review from a U.S. District Court.

Multiple circuit court challenges have since been consolidated at the Sixth Circuit. In October 2015, the Sixth Circuit stayed the rule nationally pending further review. EPA and the Army Corps of Engineers have since resumed nationwide use of the agencies’ prior regulations regarding the scope of “waters of the United States.” In February 2016, a Sixth Circuit panel determined in a 2-1 ruling that jurisdiction was exclusive to the U.S. Court of Appeals. The Supreme Court is likely to determine whether the Clean Water Act vests judicial review in the federal circuit or district courts.
Monday, January 16, 2017

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The Oil & Gas Law Blog is made available for educational purposes only and to give you general information as well as a general understanding of the law, not to provide specific legal advice. Use of this blog does not create an attorney-client relationship between you and any of the blog contributors or Harris Finley & Bogle. The Oil & Gas Law Blog should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.