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Category Archives: Environment

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USEPA and Army Corps Propose New WOTUS Rule

By Ryan Elliott on 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

By Mac Taylor on 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

By Ryan Elliott on 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

By Ryan Elliott on 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

By Natalia Cabrera on 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

By Mac Taylor on 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

By Michael Vennum on 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

By Mac Taylor on 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

By Mac Taylor on 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

By Ryan Elliott on 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

By David Edelstein on 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

By Ryan Elliott on 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

By Ryan Elliott on 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

BLM Postpones Waste Prevention Rule Compliance Date

By Ryan Elliott on Posted in Energy, Environment
On 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

White House Approves Keystone XL Pipeline

By Ilya Batikov on Posted in Energy, Environment
The White House issued a permit today approving Keystone XL, “bringing the mammoth oil pipeline a step closer to fruition more than a year after former President Barack Obama blocked its construction,” writes The Wall Street Journal. The paper notes that the pipeline, which will carry up to 830,000 barrels of oil a day once completed,… Continue Reading

Sixth Circuit Holds WOTUS Case Pending Supreme Court Review

By Ryan Elliott on Posted in Energy, Environment
On January 25, 2017, the Sixth Circuit granted a motion to hold in abeyance litigation regarding U.S. EPA’s rule defining “waters of the United States” (WOTUS) pending the Supreme Court’s review of whether the Sixth Circuit has jurisdiction to hear the case. The Supreme Court granted certiorari to settle the jurisdictional issue on January 13,… Continue Reading

The Nanoscale Rule

By David Edelstein on Posted in Environment
On May 12, 2017, EPA’s first rule regulating chemical substances produced at the nanoscale will take effect as part of the Toxic Substances Control Act (“TSCA”).  The Nanoscale Rule, part of TSCA Section 8(a), will require all current and future manufacturers and processors to report to EPA when such nanoscale chemical substances are produced in… Continue Reading