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BLM Finalizes Postponement of Waste Prevention Rule 12-13-2017

On December 8, 2017, the Bureau of Land Management (“BLM”) published a final rule (the “Postponement”) postponing certain requirements of the 2016 Waste Prevention Rule (“Waste Prevention Rule”) for one year. BLM’s Postponement reflects the completion of BLM’s latest effort to delay the requirements of the Waste Prevention Rule after a court in the Northern District of California vacated BLM’s previous attempt to postpone the effective dates of the rules through alternative procedures. 

BLM’s Waste Prevention Rule, initially promulgated in November 2016, covers a number of methane emissions sources associated with oil and gas production activities on federal lands, including natural gas emissions from venting or flaring, gas leaks from equipment and facilities located at the well site, and well drilling and completions. While the Waste Prevention Rule called for operators to submit “waste minimization” plans by January 2017, the Rule’s leak detection and recovery, emission reduction, and reporting requirements were scheduled to go into effect on January 17, 2018. BLM issued a proposed rule in October 2017 proposing to extend the Waste Prevention Rule’s January 2018 effective dates to January 2019. The proposed rule was open to public notice and comment for a 30-day period concluding November 6, 2017. The Postponement formally promulgates the October 2017 proposed rule, extending the Waste Prevention Rule’s original January 17, 2018 effective dates to January 17, 2019. 

The Postponement is currently in effect, but remains subject to judicial challenge in the future. Any such future judicial challenge could also raise a prospective stay of the Postponement, which could bring the original 2016 Waste Prevention Rule deadlines back into effect pending the court’s resolution of the judicial challenge to the Postponement. Meanwhile, a separate legal challenge to the validity of the 2016 Waste Prevention Rule brought by several industry groups and states remains pending in Western Energy Alliance et al. v. Secretary of the U.S. Dep’t of the Interior et al, Case No. 16-cv-00280 in the U.S. District Court for the District of Wyoming. In that case, the Federal Respondents have filed a Motion to Dismiss, or, in the alternative, for a Stay of Proceedings in light of the Postponement.

DRBC Proposed Rule Would Ban High-Volume Hydraulic Fracturing 12-01-2017

On November 30, 2017, the Delaware River Basin Commission (“DRBC”) published a proposed rule that, if finalized, would prohibit “high-volume hydraulic fracturing” within the Delaware River Basin.  The proposed rule reflects the DRBC’s conclusion that “high volume hydraulic fracturing poses significant, immediate and long-term risks to the development, conservation, utilization, management, and preservation of the water resources of the Delaware River Basin.”  The Delaware River Basin extends into four northeastern states and includes seventeen counties in Eastern Pennsylvania, many of which lie above the Marcellus Shale formation.

The proposed rule defines “high-volume hydraulic fracturing” as fracturing operations that use “a combined total of 300,000 or more gallons of water during all stages in a well completion . . . whether the water is fresh or recycled and regardless of the chemicals or other additives mixed with the water.”  This definition is likely to capture most hydraulic fracturing operations.   For example, the preamble to proposed rule states that the average hydraulically fractured natural gas well in the nearby Susquehanna River Basin injected 4.3 million gallons of water from 2008-2013; similarly, the preamble cites the United States Environmental Protection Agency’s 2016 hydraulic fracturing study, which concluded that the median volume of water used per well fracturing event in Pennsylvania between January 2011 and February 2013 was 4.18 million gallons.

In addition to the proposed ban on high-volume hydraulic fracturing, the proposed rule would also discourage the exportation of waters from the Delaware River Basin “to support hydraulic fracturing outside the Basin,” require an assessment of alternatives before allowing the importation of produced water into the Delaware River Basin, and require DRBC approval for produced water treatment within the Delaware River Basin.

The DRBC is accepting comments on the proposed rule through February 28, 2018 at 5 PM.  In addition, the DRBC will convene a series of public hearings on the proposed rule on January 23, 2018 in Waymart, Pennsylvania and on January 25, 2018 in Philadelphia, Pennsylvania.  Read the proposed rule in full here.

Court Vacates BLM’s Postponement of Obama-Era Waste Prevention Rule 10-10-2017

On October 4, 2017, in a consolidated decision for Sierra Club, et al. v. Zinke, et al., No. 17-cv-03885, and State of California, et al. v. United States Bureau of Land Management, et al., No. 17-cv-03804, the U.S. District Court for the Northern District of California vacated the Bureau of Land Management’s (”BLM”) postponement of BLM’s 2016 final rule entitled “Waste Prevention, Production Subject to Royalties, and Resource Conservation” (the “Waste Prevention Rule”). The district court held that BLM’s postponement did not comply with Section 705 of the Administrative Procedure Act. The decision vacates BLM’s June 15, 2017 notice postponing the Waste Prevention Rule’s January 17, 2018 compliance deadlines pending a decision in Western Energy Alliance et al. v. Secretary of the U.S. Dep’t of the Interior et al, Case No. 16-cv-00280 in the U.S. District Court for the District of Wyoming, in which several industry groups and states have challenged the finalized Waste Prevention Rule’s legal validity. 

BLM’s Waste Prevention Rule, initially promulgated in November 2016, covers a number of methane emissions sources associated with oil and gas production activities on federal lands, including natural gas emissions from venting or flaring, gas leaks from equipment and facilities located at the well site, and well drilling and completions. While the Waste Prevention Rule called for operators to submit “waste minimization” plans by January 2017, the Rule’s leak detection and recovery, emission reduction, and reporting requirements are scheduled to go into effect on January 17, 2018. 
 
The BLM Waste Prevention Rule is currently in effect and compliance with those portions of the rule with initial compliance deadlines of January 2018 will be required absent additional administrative or judicial action in the interim. Several such actions remain possible, and Department of Interior officials have previously pledged to “suspend, revise or rescind” the rule in light of its “significant regulatory burden.” Primary among these efforts is BLM’s October 5, 2017 proposed rule that would extend the Waste Prevention Rule’s January 2018 deadlines to January 2019. The comment period for this proposed rule is currently open through November 6, 2017, leaving BLM with limited time following the comment period to promulgate a final rule in advance of the January 2018 deadlines. In addition, industry’s judicial challenge to the Waste Prevention Rule in Western Energy Alliance remains pending. Finally, appropriations bill HR 3354, which has passed the House of Representatives and has been placed on the Senate Legislative Calendar, would, if signed into law, prohibit BLM from using its funds to enforce the Waste Prevention Rule.

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