By Ryan Elliott on Posted in Energy,EnvironmentOn 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 The draft Guidance, which is intended to update the 2010 version of Ohio EPA’s Vapor Intrusion Guidance, is applicable to sites subject to CERCLA, RCRA, and Ohio Voluntary Action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 Comments on the draft Guidance must be submitted… Continue Reading
By Ryan Elliott on Posted in EnvironmentThe 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
By Ryan Elliott on Posted in Energy,EnvironmentOn 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
By Ryan Elliott on Posted in Energy,EnvironmentOn 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
By Ryan Elliott on Posted in EnvironmentOn 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
By Ryan Elliott on Posted in Energy,EnvironmentOn 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
By Ryan Elliott on Posted in Energy,EnvironmentU.S EPA recently issued a draft guidance document titled Revised Policy on Exclusions from “Ambient Air” (Draft Guidance) in which the Agency revises its 1980 policy on the exclusion of certain areas from the scope of “ambient air” under the Clean Air Act. Under the National Ambient Air Quality Standards (NAAQS) program, “ambient air” is… Continue Reading
By Mac Taylor on Posted in EnvironmentOn 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
By Ryan Elliott on Posted in Energy,EnvironmentOn 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
By Ryan Elliott on Posted in Energy,EnvironmentOn 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
By Natalia Cabrera on Posted in Energy,EnvironmentOn September 21, 2018, the Ohio Supreme Court held in State ex rel. Twitchell et al. v. Saferin et al., that the Lucas County Board of Elections (BOE) did not abuse its discretion in denying a writ of mandamus to place a proposed amendment to the Toledo City Charter on the November ballot. Slip Opinion… Continue Reading
By Natalia Cabrera on Posted in EnvironmentOn 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
By Mac Taylor on Posted in EnvironmentOn 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
By Michael Vennum on Posted in Energy,EnvironmentOn 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
By Mac Taylor on Posted in EnvironmentOn 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
By Ryan Elliott on Posted in EnvironmentOn May 1, 2018, a federal judge for the U.S. District Court for the District of North Dakota affirmed a Magistrate’s decision to lift the stay on a group of 13 States’ lawsuit challenging U.S EPA’s the Army Corps’ 2015 rule defining “waters of the United States” (“WOTUS”) under the Clean Water Act. The Court… Continue Reading
By Ryan Elliott on Posted in EnvironmentOn April 30, 2018, the U.S. District Court for the District of Wyoming denied a motion to stay its April 4, 2018 order staying the phase-in implementation provisions of the Bureau of Land Management’s (BLM) Waste Prevention Rule, pending an appeal of the Court’s April 4th order filed by various environmental groups, California and New… Continue Reading
By Mac Taylor on Posted in EnvironmentOn 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
By Ryan Elliott on Posted in EnvironmentThis post provides an important update to our January 22, 2018 entry. On January 31, 2018, U.S. EPA and the Army Corp finalized a rule that makes the 2015 WOTUS Rule applicable two years following publication of the applicability date rule in the Federal Register. The final rule provides that the scope of Clean Water… Continue Reading
By Ryan Elliott on Posted in Energy,EnvironmentOn 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
By David Edelstein on Posted in EnvironmentOn 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
By Ryan Elliott on Posted in EnvironmentOn 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
By Ryan Elliott on Posted in Energy,EnvironmentThis 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
By Ryan Elliott on Posted in Energy,EnvironmentOn June 15, 2017, the Bureau of Land Management (BLM) issued notice that it was postponing compliance date for certain sections of its Waste Prevention, Production Subject to Royalties, and Resource Conservation Rule, 81 Fed. Reg. 83008 (“Waste Prevention Rule”). The Waste Prevention Rule regulates the loss of natural gas through venting, flaring, and leaks… Continue Reading
