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Environmental Blog

  • 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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  • 17
  • April
  • 2018

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Federal Offshore Regulatory Agencies Announce Increased Civil Monetary Penalties for 2018

Like death and taxes, the specter of civil penalties remains ever-present. In the federal offshore energy regulatory environment, monetary penalties have increased once again in 2018. Spurred on by increases in the Consumer Price Index, each of the federal Bureau of Safety and Environmental Enforcement (“BSEE”), the federal Bureau of Ocean Energy Management (“BOEM”), and the U.S. Coast Guard (“Coast Guard”), have adjusted their civil penalty amount during 2018 to account for inflation. Consequently, offshore facility lessees or permittees or vessel operators incurring violations in 2018 after the effective date that such monetary penalty increases became effective will be subject to the bolstered penalty amounts.

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  • 20
  • March
  • 2018

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New EPA, DOJ Policies Alter Enforcement Landscape

New enforcement polices announced by the EPA and the DOJ presage possible changes in the way environmental enforcement will be conducted at the federal level. Consistent with the overall themes of the Trump administration of cooperative federalism and a focus on compliance, new EPA policies state that the agency will defer to the states as the primary enforcing entities, and will encourage the use of more informal enforcement approaches to bring about compliance. In addition to these EPA-specific polices, the DOJ announced a policy limiting the use of agency guidance in affirmative civil enforcement cases. The new DOJ policy, while not limited to environmental cases, is expected to be especially relevant to enforcement in the environment and natural resources area.

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  • 13
  • March
  • 2018

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Consent Decree Dispute Highlights Changes in SEP, Mitigation Projects Due to New DOJ Settlement Policy

Controversy surrounding a Clean Air Act consent decree has served to highlight changes in environmental enforcement brought about by a June 5, 2017 memorandum from the United States Attorney General announcing a general prohibition on settlement payment to third parties. Memorandum for All Component Heads and United States Attorneys, Prohibition on Settlement Payments to Third Parties, (Office of the Attorney General, June 5, 2017) (“June 5 Memorandum”). Attorneys in the environmental community immediately recognized that this prohibition would have implications for environmental settlements that included Supplemental Environmental Projects (“SEPs”) (projects undertaken in settlements by defendants, that are not required for compliance, that result in a reduction in penalties, see Issuance of the 2015 Update to the 1998 U.S. Environmental Protection Agency Supplemental Environmental Projects Policy (U.S. EPA March 10, 2015) (“SEP Policy”), as well as mitigation projects (projects undertaken by defendants as part of the overall injunctive relief to mitigate alleged harms due to past violations and which do not generally result in a penalty reduction), see Securing Mitigation as Injunctive Relief in Certain Civil Enforcement Settlements (2nd edition) (U.S. EPA Nov. 14, 2012) (“Mitigation Policy”). After the Attorney General Policy was announced, the Environmental and Natural Resources Division (“ENRD”) of the Department of Justice issued guidance on the application of the June 5 Memorandum to cases handled by ENRD. Settlement Payments to Third Parties in ENRD Cases, (Office of the Acting Assistant Attorney General, ENRD, January 9, 2018) (“ENRD Policy”). This policy sets forth a limited exception to third-party payments when the payments directly remedy harm to the environment.

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  • 06
  • March
  • 2018

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Corporate Officer Individual Liability for Environmental Violations Upheld by the Texas Supreme Court

The Texas Supreme Court recently reinstated an assessment of civil penalties against a corporate official for violations of the Texas Water Code. In State of Texas v. Morello, No. 16-0457 (February 23, 2018), the Court overturned the decision by the Austin Court of Appeals, which had held that a corporate official could not be personally liable for environmental violations unless the individual had engaged in “tortious” or “fraudulent” acts. The Supreme Court, in looking at the plain meaning of the Water Code, held that “under an environmental regulation applicable to a ‘person,’ an individual cannot use the corporate form as a shield when he or she has personally participated in conduct that violates the statute.” Slip op. at 12 (emphasis added).

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  • 03
  • August
  • 2017

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TCEQ Developing New Temperature Screening Procedures for Wastewater Discharge Permitting

Last Thursday, the Texas Commission on Environmental Quality (TCEQ) convened a stakeholder meeting to discuss how it plans to ensure compliance with the temperature criteria in the Texas Surface Water Quality Standards through the wastewater discharge permitting process. The updated “implementation procedures” shared by TCEQ at the meeting, when finalized, could result in TCEQ adding permit conditions to existing wastewater discharge permits.

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  • 31
  • July
  • 2017

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Public Comment Opens on WOTUS Rulemaking

On July 27, the Environmental Protection Agency and the Corps of Engineers jointly proposed to rescind the “waters of the United States” definition in the Code of Federal Regulations and to apply the definition in place both before to the 2015 rulemaking adding the definition and after the Sixth Circuit’s late 2015 stay of the rule. This rulemaking is drawing substantial interest because the definition outlines much of these agencies’ jurisdiction. Public comments are due on August 28, 2017.

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  • 03
  • May
  • 2017

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Oklahoma Report Offers Key Insights on Recycling and Re-Use of Produced Water

The cheapest and most common method for disposal of produced water – the salty water that is co-produced with oil and natural gas – is typically by using disposal wells to inject the water into deep non-potable formations. But that may be changing in Oklahoma, where produced water volumes are rising with the development of the South Central Oklahoma Oil Province (SCOOP), and Sooner Trend Anadarko Basin Canadian and Kingfisher Counties (STACK) plays and where seismicity thought to be induced by deep injection well disposal of produced water has caused public officials to search for disposal alternatives. In December 2015, Governor Mary Fallin tasked a working group called the “Water for 2060 Produced Water Working Group” with assessing produced water recycling or re-use as disposal alternatives. The working group’s April 2017 report includes important insights into the future of water recycling and re-use in Oklahoma and perhaps beyond.

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Federal Court Dismisses RCRA Suit Seeking Limitations on Oklahoma Wastewater Injection Wells

On April 4, 2017, Western District of Oklahoma Judge Stephen Friot dismissed an action brought under the Resource Conservation and Recovery Act (“RCRA”) by the Sierra Club against four deep fluid injection well operators. The plaintiff alleged that the defendants’ use of wastewater injection wells presented an “imminent and substantial endangerment to health or the environment” in violation of RCRA because it supposedly causes “waste-induced earthquakes.” The Sierra Club sought a wide range of injunctive relief, asking the court to order defendants to substantially reduce the volume of wastewater they inject into disposal wells, reinforce vulnerable structures, and establish a seismic activity monitoring center to further analyze (and predict) the potential for seismic effects of underground injection of oilfield wastes. 

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  • 28
  • February
  • 2017

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Executive Order Calls for Rescinding or Revising WOTUS Rule

On February 28, President Trump issued an Executive Order (the “Order”) calling on the United States Environmental Protection Agency (“EPA”) and the United States Army Corps of Engineers (“USACE”) to rescind or revise the controversial Waters of the United States (“WOTUS”) rule, which was finalized in June 2015.  Specifically, the Order requires the EPA Administrator and the Assistant Secretary of the USACE to review the WOTUS rule in light of a policy statement set forth in the Order, which states that it is in the national interest to both keep the nation’s water free from pollution, and “promot[e] economic growth, minimiz[e] regulatory uncertainty, and show[] due regard for the roles played by Congress and the States under the Constitution.”

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  • 25
  • January
  • 2017

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Second Circuit Defers to EPA on Water Transfers Rule

On January 18, 2017, the U.S. Court of Appeals for the 2nd Circuit applied the Chevron doctrine of judicial deference to agency interpretations to find that EPA’s Water Transfers Rule exempting the transfer of water from one basin to another from discharge permits is a reasonable interpretation of the law and should be upheld. This decision reversed a March 2014 district court decision which would have required thousands of water transfer projects to obtain NPDES permits—a result that was particularly unpopular with many western states who believed the delays associated with the permitting process would hinder efforts to meet their water needs during droughts.

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  • 10
  • January
  • 2017

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U.S. Army Corps of Engineers Issues 2017 Nationwide Permits for Streamlined Permitting

On January 6, 2017, the U.S. Army Corps of Engineers (the Corps) issued a new set of nationwide permits to replace existing permits that expire on March 18, 2017. Congress authorized the Corps to issue these types of nationwide permits to streamline the permitting process for the discharge of dredged or fill material into waters of the United States, under Clean Water Act Section 404 or work in or affecting navigable waterways, under Rivers and Harbors Act Section 10, in either case when it has no more than a minimal individual or cumulative adverse effect on the environment. The 2017 nationwide permits closely mirror the draft version the Corps released for public comment in June 2016, generally with only minor revisions and clarifications. In addition to reissuing 50 existing nationwide permits, the Corps issued two new permits, one for the removal of low-head dams, and another for “living shorelines” used to stabilize banks and shores in coastal waters. The nationwide permits are frequently used for development activities ranging from navigational aids and bank stabilization to linear projects and commercial developments.

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  • 04
  • January
  • 2017

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EPA Concludes Fracking Activities Can Impact Drinking Water in U.S.

The United States Environmental Protection Agency (“EPA”) released its Final Assessment of the Potential Impacts of Hydraulic Fracturing for Oil and Gas on Drinking Water Resources on December 13, 2016. The final report concludes that “hydraulic fracturing activities can impact drinking water resources in the United States under some circumstances.”

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  • 10
  • November
  • 2016

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Fourth Circuit Considers CWA Permit Shield Defense, Again

On October 6, 2016, EPA filed an amicus brief in the Fourth Circuit in Ohio Valley Environmental Coalition v. Fola CoalCo., LLC, No. 16-1024 (“Fola”) supporting a decision from the Southern District of West Virginia. The district court held that discharges from a coal mine that raised conductivity levels violated the Clean Water Act (“CWA”) even though the mine’s permit did not contain express limits for conductivity. The case will test whether West Virginia’s narrative water quality standards, which the mine’s permit incorporated by reference, take precedence over the fact that regulators knew the mine’s discharges might increase conductivity but declined to incorporate conductivity into the permit explicitly. If the court adopts EPA’s position, then the case could significantly impact the scope of the permit shield defense under the CWA.

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