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Environmental Blog

  • 07
  • November
  • 2019

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Good Air Pollution Control Practice Enforcement—It’s a Real Thing

In September 2019, a federal district court in Massachusetts ordered  the owner of a fuel storage terminal to pay $1.2 million in civil penalties for violations of the Clean Air Act and the Clean Water Act. The principal claims in the case were that the R.M. Packer Company caused excess emissions of volatile organic compounds (VOC) and hazardous air pollutants (HAP) by failing to operate its fuel storage tanks and vapor control systems consistent with good air pollution control practices.

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EPA Issues Supplemental Proposed Rulemaking That Will Increase the Burdens of Non-Exempt Refiners Beginning in 2020

Making good on President Trump’s promise to corn-growing farmers, on October 28, 2019, the U.S. Environmental Protection Agency (EPA) published a supplemental notice of proposed rulemaking (Supplemental Proposal) that will effectively increase the renewable fuel obligations of non-exempt refiners and other obligated parties beginning in compliance year (CY) 2020. The EPA held a public hearing regarding the Supplemental Proposal in Ypsilanti, Michigan, on October 30, 2019, and will accept comments until November 29, 2019. EPA currently plans to issue a final rule in 2019. 

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Trump Administration Plans to Ramp Up Total Renewable Fuel Volumes Under the RFS Program for 2020

On October 4, 2019, the U.S. Environmental Protection Agency (EPA) signaled an abrupt change to the status quo, by announcing plans to issue a final rulemaking that will increase total renewable fuel volumes under the federal Renewable Fuel Standards (RFS) program beginning in 2020 to compensate for volumes lost whenever the EPA grants waivers to “small refiners,” who successfully claim a disproportionate economic hardship under the program. This change will greatly benefit farmers growing corn to produce corn-based ethanol, a “conventional” biofuel that supplies the bulk of total renewable fuel volumes required under the RFS program.

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DOJ Announces Another Nail in Supplemental Environmental Projects’ Coffin

The Department of Justice (“DOJ”) will no longer use Supplemental Environmental Projects (“SEPs”) in settlements with states and municipalities as a result of a policy change announced August 21, 2019.The change follows a series of steps taken since 2017 curtailing SEPs. It may foreshadow future action to formally curtail SEPs in settlements with private sector parties, as the memo notes that the Department is actively reconsidering current guidance that continues to allow SEPs in settlements with private parties.2

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  • 01
  • May
  • 2019

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BOEM Announces Increased Civil Monetary Penalties for 2019

As has been reported on in the past, federal agencies with oversight over offshore regulated activities, including oil and gas exploration and production operations, continue to increase the maximum civil penalty amounts they may assess for violations of applicable law, with the federal Bureau of Ocean Energy Management (“BOEM”) being the latest agency to do so. Spurred on by increases in the Consumer Price Index, on March 26, 2019, BOEM adjusted its civil penalty amount to account for inflation.

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  • 26
  • November
  • 2018

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Round Three: The Pennsylvania Supreme Court Agrees to Review Briggs in Deciding Whether the Rule of Capture Defeats a Claim of Trespass for Drainage Arising from Hydraulic Fracturing

On November 20, 2018, the Pennsylvania Supreme Court agreed to review the April 2018 intermediate appellate court decision, Adam Briggs et al. v. Southwestern Energy Production Company, which held that the “rule of capture” did not bar a claim for trespass when an operator’s hydraulic fracturing activity resulted in the drainage of gas from an adjoining tract that was not a part of the operator’s lease.

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  • 24
  • August
  • 2018

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Fifth Circuit Opinion Confirms Federal Courts Closed for Cleanup Claims Against the State of Texas; State Courts Still an Option?

In a recent opinion, United States Oil Recovery Site Potentially Responsible Parties Group (“USOR Site PRP Group”) v. Railroad Commission of Texas, No. 17-20361, 2018 WL 3649653, (5th Cir. Aug. 1, 2018) the United States Court of Appeals for the Fifth Circuit confirmed that sovereign immunity bars claims in federal court by private parties against states and state agencies under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (“CERCLA” or “Superfund”), 42 U.S.C. § 9601 et seq.

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Collision Course: Colorado Initiative #108 Seeks to Blunt Private Property Owners’ Damages Occasioned by State and Local Government Through Initiative #97

A petition for ballot Initiative #108 was submitted to the Colorado Secretary of State in advance of the August 6, 2018 deadline for proposals to be considered for inclusion on Colorado’s general election ballot on November 6, 2018. Touted as a “property rights” measure, Initiative #108 proposes to amend the Colorado Constitution in order to provide an equal playing field for private property owners seeking just compensation when state or local government takes action diminishing the “fair market value” of their properties.

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Colorado Initiative #97: The Petition Beats the Deadline but is it Enough?

The Office of the Colorado Secretary of State confirmed on Monday, August 6, 2018 that a petition for ballot Initiative #97 was turned in by the deadline period and will be considered for inclusion on the November 6, 2018 general election ballot. As we previously reported, Initiative #97 seeks to establish a 2,500-foot buffer zone that is free of new oil and gas development around defined “occupied structures” and “vulnerable areas” in the state.

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Is the Third Time the Charm? - Initiative #97 Seeks a Five-Fold Increase in Setback Distances Between Homes and New Oil and Gas Development in Colorado

Following on the heels of failed attempts in 2014 and 2016, proponents of greater restrictions against new oil and gas exploration and production activities in Colorado are once again seeking to increase the regulatory setback distance between homes and new oil and gas development in the state. Currently, proponents of a ballot initiative – Initiative #97 – are working to obtain enough signatures to place the proposal on the Colorado ballot in November 2018.

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  • 21
  • June
  • 2018

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Environmental Appeals Board Weighs Challenge to Power Plant’s PSD Permit for EPA’s Dismissal of Battery Storage as BACT for Peak Demand Periods

On May 29, 2018, nongovernmental organizations (“NGOs”), including the Sierra Club, petitioned the U.S. Environmental Protection Agency (“EPA”) Environmental Appeals Board, challenging the federal Clean Air Act Prevention of Significant Deterioration permit issued by EPA Region 9 for the Palmdale Energy Project in California.

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Briggs Remains the Law in Pennsylvania, as a State Appellate Court Refuses to Reconsider Case Allowing a Claim of Trespass for Drainage Arising from Hydraulic Fracturing

On June 12, 2018, a Pennsylvania appeals court refused a petitioner’s request for an en banc rehearing on a case decided by a three-judge panel in April 2018, holding that the rule of capture did not bar a claim for trespass under circumstances where an operator’s hydraulic fracturing activity resulted in the drainage of gas from an adjoining tract that was not a part of the operator’s lease.

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  • 14
  • June
  • 2018

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EPA Memorandum Expands Headquarters Role in Enforcement Referrals to DOJ

Earlier in the year we posted blogs discussing policy changes at EPA and DOJ that signaled changes in federal enforcement and a rethinking of the use of third-party payments. EPA has since announced another enforcement-related procedure that could signal a major change in the way EPA conducts enforcement. In March of this year the EPA Assistant Administrator for Enforcement Susan Bodine issued Interim Procedures for Providing Early Notice of Civil Judicial Referrals (U.S. EPA, March 23, 2018). Under these interim procedures, the EPA regional case teams are to brief the Regional Administrator on cases to be referred to DOJ, and to copy the Assistant Administrator with these briefing materials. If requested by the Assistant Administrator, the regions are directed to send the referral to the EPA Assistant Administrator prior to sending the referral to DOJ.

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Will Trespass Claims for Hydraulic Fracturing Remain Triumphant Over the Rule of Capture in Pennsylvania? An Oil and Gas Operator Seeks Reconsideration in Briggs

In oil and gas law, it is well-settled that the “rule of capture” holds that there is no liability for a mineral rights owner’s drainage of oil and gas from another person’s land so long as the oil and gas is produced from a well bottomed on the mineral owner’s property and all relevant statutes and regulations have been observed. The rule shields exploration and production operators from liability for a trespass when they extract oil and gas below ground from another person’s land, unlike the case where a prospector extracts hard minerals such as coal or precious metals such as gold or silver. The application of the rule of capture to extraction of oil and gas and not to hard or precious minerals is due in large measure to the “fugitive and wandering” nature of oil and gas.

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