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Category Archives: Environment

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USEPA Proposes to Redesignate Columbus Area in Attainment of 2015 Ozone NAAQS

Posted in Environment
On July 3, 2019, USEPA issued a proposed rule finding the Columbus, Ohio area is attaining the 2015 ozone National Ambient Air Quality Standard (NAAQS). The Columbus area is currently designated as nonattainment for the 2015 ozone NAAQS. However, in response to Ohio EPA’s request for redesignation to attainment supported by monitoring data for 2016-2018,… Continue Reading

Ohio EPA Issues Draft Vapor Intrusion Guidance

Posted in Energy, Environment
On June 24, 2019, Ohio EPA issued a draft Vapor Intrusion Sampling and Evaluation Guidance (Guidance). The draft Guidance, which is intended to update the 2010 version of Ohio EPA’s Vapor Intrusion Guidance, is applicable to sites subject to CERCLA, RCRA, and Ohio Voluntary Action (VAP) oversight. Comments on the draft Guidance must be submitted… Continue Reading

Ohio H.B. 168 Creates Superfund-like Protections for Qualifying Purchasers of Brownfield Properties

Posted in Environment
The Ohio House of Representatives recently passed a bill (H.B. 168) that provides “bona fide prospective purchasers” (BFPPs) of brownfield properties with an affirmative defense against state lawsuits seeking to impose liability for the cleanup of such properties. To qualify for the liability protection as a BFPP under H.B. 168, a landowner must satisfy the… Continue Reading

U.S. EPA Finalizes New Owner Clean Air Act Audit Program for Oil and Natural Gas Sector

Posted in Energy, Environment
On March 29, 2019, U.S. EPA finalized a New Owner Clean Air Act (CAA) Audit Program for new owners of upstream oil and natural gas exploration and production facilities – i.e. well sites, tank batteries, and vapor control systems (the “Program”). The Program encourages new owners voluntarily to conduct a self-audit of newly acquired facilities,… Continue Reading

Sixth Circuit Holds Environmental Groups Lack Standing to Challenge Air Permits for NEXUS Pipeline Compressor Stations

Posted in Energy, Environment
On February 21, 2019, the Sixth Circuit Court of Appeals dismissed a petition for review of air permits issued by Ohio EPA for two compressor stations to be constructed along the NEXUS pipeline in Ohio. The Court dismissed the petition for review for lack of jurisdiction, holding the environmental groups that filed the petition for… Continue Reading

U.S. EPA Issues Comprehensive PFAS Action Plan

Posted in Environment
On February 14, 2019, U.S. EPA issued a comprehensive Action Plan for addressing Per- and Polyfluoroalkyl Substances (PFAS) in environmental media. The Action Plan, which was developed in response to significant public input received by EPA over the past year, describes EPA’s short- and long-term multi-media and multi-program approach for addressing PFAS. Notable activities that… Continue Reading

USEPA and Army Corps Propose New WOTUS Rule

Posted in Energy, Environment
On December 11, 2018, USEPA and the Army Corps of Engineers proposed a new rule defining “water of the United States” (WOTUS) subject to USEPA/Army Corps jurisdiction under the Clean Water Act. The proposed rule would replace the 2015 WOTUS rule, which has been the subject of litigation across the country, with a more narrow… Continue Reading

USEPA Concludes Reconsideration of 2009 NSR Project Aggregation Interpretation

Posted in Environment
On November 7, 2018, USEPA concluded its reconsideration (“2018 Reconsideration Action”) of a January 15, 2009 interpretation regarding NSR project aggregation (the “2009 NSR Aggregation Action”).  See 74 Fed.Reg. 2376 et seq.  The 2009 Aggregation Action never became effective in 2009, because the NRDC filed a petition for reconsideration that resulted in USEPA indefinitely staying… Continue Reading

U.S. EPA Proposes Amendments to Performance Standards for Oil and Natural Gas Sector

Posted in Energy, Environment
On October 15, 2018, USEPA proposed amendments to the new source performance standards (NSPS) for the oil and natural gas sector at 40 CFR Part 60, Subpart OOOOa (“Subpart OOOOa”). The proposed amendments to Subpart OOOOa are a result of USEPA’s reconsideration of certain aspects of Subpart OOOOa in 2017. Specifically, the proposed amendments address… Continue Reading

5th Circuit Holds Statute of Limitations Does Not Apply to Government’s Injunctive Relief Claim for Clean Air Act Preconstruction Permit Violation

Posted in Energy, Environment
On October 1, 2018, the 5th Circuit Court of Appeals upheld the dismissal of claims for civil penalties for violations of the Clean Air Act’s (“CAA”) major source Preconstruction permit requirement (CAA § 165(a); 42 U.S.C. § 7475(a)) because the claims were filed more than five years after the claim accrued, but held that the… Continue Reading

Sixth Circuit Rejects Groundwater Hydrological Connection Theory for CWA Jurisdiction

Posted in Environment
On September 24, 2018, the Sixth Circuit held that the Clean Water Act (CWA) does not apply to pollutants that travel through groundwater before entering navigable waters in Tennessee Clean Water Network, et al. v. Tennessee Valley Authority, Case No. 17-6155. The defendant in this case, Tennessee Valley Authority (TVA), operates a coal-fired power plant… Continue Reading

WOTUS Litigation Continues to Ebb and Flow

Posted in Environment
On August 16, 2018, a federal district court judge in South Carolina issued a nationwide injunction which halts the effectiveness of USEPA’s “Delay Rule.”  83 Fed.Reg. 5200 et seq.  The Delay Rule purported to delay the effectiveness of the Obama WOTUS Rule until February 2020.  Because of this new ruling, the Obama WOTUS Rule is… Continue Reading

Pennsylvania Supreme Court Continues Rulings Against Municipal Zoning Authority

Posted in Energy, Environment
On August 3, 2018, the Pennsylvania Supreme Court vacated another municipal zoning decision favorable to oil and gas development.  In its per curium order of Delaware Riverkeeper Network v. Middlesex Township (N0. 270 WAL 2017), the Supreme Court directed the Commonwealth Court to reconsider its previous decision upholding a local zoning ordinance that permitted oil… Continue Reading

USEPA Issues Supplemental Notice of Proposed Rulemaking for Waters of the United States, Seeks Additional Comments

Posted in Environment
On June 29, 2018, USEPA issued a supplemental notice of proposed rulemaking (the “Supplemental Notice”) to its July 2017 proposed action to repeal the 2015 definition of “waters of the United States” adopted under the Obama Administration.  The Supplemental Notice includes additional justification for the repeal of the 2015 definition, and also clarifies that USEPA is… Continue Reading

ODNR Temporary Orders for Oilfield Waste Remain in Effect

Posted in Environment
On February 15, 2018, the Supreme Court of Ohio denied an appeal of a mandamus action seeking to force ODNR to rescind temporary orders that ODNR had issued to a number of facilities across the state for the storage, recycling, treatment, processing, or disposal of brine and other oilfield waste.  R.C. 1509.22(B)(2)(a) requires that “on… Continue Reading

U.S. Supreme Court Determines Jurisdiction for WOTUS Challenges

Posted in Energy, Environment
On January 22, 2018, the U.S. Supreme Court held that lawsuits challenging the joint EPA-Army Corps rule defining “waters of the United States” (WOTUS) must be filed in federal District Courts. The Supreme Court’s decision overturns the Sixth Circuit’s February 2016 decision that the federal Circuit Courts have exclusive jurisdiction, pursuant to Section 1369(b)(1) of… Continue Reading

New guidance for TSCA Nanoscale Rule

Posted in Environment
On August 14th, 2017, the U.S. EPA issued new guidance for the Toxic Substances Control Act (“TSCA”) Nanoscale Rule regulating chemical substances produced at the nanoscale (1-100 nm in at least one dimension).  The Nanoscale Rule will require all current and future manufacturers and processors to report to EPA when such nanoscale chemical substances are… Continue Reading

Governor Kasich Signs Senate Bill 2 Into Law

Posted in Environment
On July 7, 2017, Governor Kasich signed Senate Bill 2 (SB 2), which addresses Ohio’s authority under several environmental regulatory programs. Notable provisions of SB 2 include: • Expanding Ohio EPA’s authority to take actions to abate contamination at locations where hazardous waste was disposed of to include locations where solid waste and construction and… Continue Reading

D.C. Circuit Vacates Stay of Oil and Gas Methane Emissions Rule

Posted in Energy, Environment
This post provides an important update to our April 20, 2017 post regarding U.S. EPA’s reconsideration of its rule regulating methane emissions from the oil and gas industry (“NSPS OOOOa”). On June 5, 2017, EPA published a notice of reconsideration and partial stay of NSPS OOOOa. Specifically, EPA stayed the effectiveness of the fugitive emissions… Continue Reading