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Energy & Environmental Law Blog

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TSCA Reform: Major Chemical Management Changes on the Horizon

Posted in Articles, Environment

The Toxic Substances Control Act (“TSCA”) became law in 1976 with the objective of regulating chemicals in commerce that posed an “unreasonable risk of injury to human health or the environment.”  While originated with good intent, TSCA had become a stale law that lacked clarity for industry and regulators alike.  Now, after years of legislative efforts, and with the support of many (including industry, environmentalists, public health officials, and bipartisan efforts in Congress), TSCA is soon to receive a major update through the Frank R. Lautenberg Chemical Safety for the 21st Century Act.

The reformed TSCA, signed into law yesterday by President Obama, will implement changes that affect every industry importing, manufacturing, or processing an industrial chemical substance.  The law aims to strengthen chemical regulation by clarifying EPA’s role in regulating new chemicals and mandating the EPA evaluate all chemicals currently in commerce.  These changes will not be instant; but, industry should expect a need to implement major changes in chemical management within three to five years.

Some of the most significant changes to TSCA include:

  • EPA will be mandated to review all chemicals currently existing in commerce, beginning with those chemicals it deems high priority.
  • Industry will now need the approval of EPA to move forward with the commercialization of a new chemical.
  • EPA will regulate chemical substances based solely on the risk that substance provides to human health and the environment.  TSCA’s previous “balancing test” between the risk of a chemical and the chemical’s economic impact has been eliminated.
  • EPA will no longer be required to impose the “least restrictive” requirements when regulating chemicals in commerce.  TSCA’s previous language requiring chemical regulation at the least burdensome alternative to industry has been eliminated.
  • EPA will have the power to preempt state laws that may contradict its risk finding in certain circumstances.  For instance, states will be barred from banning or restricting the use of chemicals for which EPA has issued a safety determination.
  • EPA will have the authority to order chemical testing from industry to review pre-manufacture notices or “significant new use” notices.
  • Confidential Business Information claims will be more difficult to make and will expire in 10 years.

Ohio’s Utica Oil Production Dips, Gas Production Grows

Posted in Energy

According to quarterly production data released by the Ohio Department of Natural Resources, oil production in the state from Utica shale wells dipped since the fourth quarter of 2015, reports the Akron Beacon Journal:

The oil data is new evidence of the continuing industry downturn from low commodity prices hitting Ohio. That downturn has forced some drilling companies into bankruptcy and dramatically slowed shale drilling across the United States.

Until now, oil and natural gas production in Ohio had been growing because of heavy Utica drilling in recent years.

Oil production dipped 12.3 percent from the fourth quarter of 2015, according to first-quarter 2016 production from 1,302 horizontal Utica wells.

But it’s a different story for natural gas production:

Natural gas production from Ohio’s Utica Shale in the first quarter grew by 8.7 percent from fourth quarter 2015.

It increased from nearly 303 billion cubic feet per day in fourth quarter 2015 to 329.5 billion cubic feet in first quarter 2016.

Natural gas production grew by 80 percent from first quarter 2015 to first quarter 2016, the state said.

You can check out the quarterly production data here.

Supreme Court Holds CWA Jurisdictional Determinations are Final Agency Actions

Posted in Energy, Environment

On May 31, 2016, The U.S. Supreme Court held that Clean Water Act jurisdictional determinations by the Army Corps of Engineers are final agency actions that can be reviewed by federal courts.  In reaching its decision, the Supreme Court declined to follow a 2014 decision from the Fifth Circuit which held that jurisdictional determinations are merely a notification of a property’s classification, and held that such determinations meet the criteria for final agency actions.  Notably, the Court held that a jurisdictional determination “marks the consummation of the Corps’ decisionmaking on the question whether a particular property does or does not contain ‘waters of the United States’” and that the “definitive nature of approved JDs also gives rise to direct and appreciable legal consequences.”

New U.S. EPA Environmental Justice Agenda Announced

Posted in Articles, Environment

On Monday, May 23, U.S. EPA released a draft of its final Environmental Justice Strategic Plan for the Years 2016-2020, which is open for comment until July 7, 2016.  The plan focuses on three major goals.  The first goal is to deepen the environmental justice practice within EPA programs, specifically to improve the health and environment of overburdened communities, which EPA plans to achieve through use of rulemaking, permitting, compliance and enforcement, and science.  The second goal, to work with partners to expand impact in overburdened communities, involves working with state and local governments, federal agencies, community-based organizations, and tribes and indigenous peoples to consider and implement best-practices starting from the ground-level.  Finally, the third goal is to demonstrate progress on environmental justice challenges, through tasks related to disparities in exposure of children to lead, increased access to drinking water, improvement to air quality to reach national ambient air quality standards for low-income populations, and decreased exposure to contaminants at hazardous waste sites. 

Overall, EPA seeks to strengthen its capacity for addressing environmental justice concerns by placing greater emphasis on low-income communities into their regular agency activities, such as rulemaking, permitting, and enforcement.  It seeks to view communities more holistically with improved tools for monitoring and screening environmental pollutants and health risks and gain more insight through collaboration with state partners.  For more information from EPA, click here.  You can find the entire draft of the 2020 Environmental Justice Action Agenda here.

U.S. EPA Issues Draft Information Request on Methane Emissions

Posted in Energy, Environment

On the same day that U.S. EPA finalized amendments to the New Source Performance Standards for the oil and gas industry (click here for our blog post on the final rule), the Agency issued a draft  Information Collection Request (ICR) to require oil and gas companies to provide extensive information on methane emissions from various sources.  The draft ICR is comprised of two parts: (1) an operator survey to collect information on the number and types of equipment at onshore production facilities, and (2) a facility survey to collect detailed information on emissions sources and control devices in use at onshore production, gathering, boosting, processing, transmission, storage and import/export facilities.  Owners/operators have 30 days to respond to the operator survey, and 120 days to respond to the detailed facility survey.

Click here for a copy of the unofficial version of the ICR.  EPA will accept comments on the draft ICR for 60 days after publication in the Federal Register.

U.S. EPA Finalizes NSPS OOOO Amendments

Posted in Energy, Environment

On May 12, 2016, U.S. EPA finalized amendments to the New Source Performance Standards (NSPS) for the oil and natural gas source category at 40 CFR Part 60, Subpart OOOO, and established new standards at 40 CFR Part 60, Subpart OOOOa.  The final rule establishes standards for greenhouse gas emissions in the form of limitations on methane emissions, and requires additional sources not originally subject to Subpart OOOO to comply with with the VOC and methane limitations prescribed under the rule.

Click here for a copy of the unofficial version  of the final rule.  The final rule will be effective 60 days after publication in the Federal Register.

USEPA Sued to Tighten Disposal Regulations

Posted in Energy

A number of environmental groups have filed suit against the USEPA, alleging that the agency failed to update its rules for the disposal of oil and gas drilling waste, and calling on it to issue more stringent regulations, reports the Columbus Dispatch:

“Updated rules for oil and gas wastes are almost 30 years overdue, and we need them now more than ever,” said Adam Kron, senior attorney at the Environmental Integrity Project, in a news release.

The lawsuit, filed in the U.S. District Court for the District of Columbia, asks the court to force the EPA to update oil and gas wastewater disposal rules. Those rules, the groups say, should include a ban on spreading fracking wastewater onto roads.

The groups also want the EPA to require landfills or ponds that take waste from oil and gas drilling to be built with liners and structural safeguards.

Click read to read more. You can also read the Complaint here.

Pennsylvania Commission Approves Controversial Oil and Gas Regulations

Posted in Energy

Despite formal disapproval by Pennsylvania House and Senate Committees, the Commonwealth’s Independent Regulatory Review Commission, on April 21, 2016, in a 3-2 decision, approved contentious oil and gas regulations that the Governor’s Office claims will improve protection of water resources, address landowner concerns, enhance transparency and improve data management.  The regulations include updates to the well permitting process, requiring drillers to identify public resources (such as schools and playgrounds) that may be impacted by drilling activity and to identify abandoned wells that could be impacted by new drilling.  Further, the regulations require drillers to restore or replace impacted water supplies to Federal Safe Drinking Water Act standards.  Moreover, the regulations prohibit drillers from storing waste in pits and using brine for roadway dust suppression.  Although designed to impact the once-burgeoning Marcellus Shale-related unconventional drilling industry, most of the objections now focus upon the cost of compliance to family-owned, conventional oil and gas well operators.  Those objections, and legislative displeasure with the 3-2 decision, are presented in an April 28th article of The Bradford Era.

The Pennsylvania Legislature has about a month to pass a resolution disapproving the regulations that would be presented to the Governor.  Anticipating a gubernatorial veto, the Senate and House would be required to override that veto by a two-thirds vote.  If no action is taken by the Legislature or a resolution fails, the regulations will take effect following review by the Pennsylvania Attorney General’s Office, the Office of General Counsel and the Commonwealth Budget Office.



Sixth Circuit Denies En Banc Review of WOTUS Jurisdictional Issue

Posted in Energy, Environment

This entry is a follow-up to our blog post on February 23, 2016 regarding the Sixth Circuit’s decision that it has jurisdiction to adjudicate challenges to the EPA-Army Corps WOTUS rule.  On April 21, 2016, the Sixth Circuit denied six petitions for rehearing en banc.  In order to obtain en banc (full court) review, the issue presented must be one of “exceptional importance.” The Court held that “the issues raised in the petitions were fully considered upon the original submission and decision of the cases . . . No judge has requested a vote on the suggestion for rehearing en banc.”