Today the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers published in the Federal Register a joint final rulemaking to redefine “waters of the United States” and the scope of the federal agencies’ jurisdiction under the Clean Water Act. This final rule will be effective on August 28, 2015. For more information, read our Administrative Watch regarding the Clean Water Rule.
This week the U.S. Environmental Protection Agency (EPA) sent a highly-anticipated proposed rule to the White House Office of Management and Budget (OMB) for interagency review that would address methane emissions in the oil and natural gas sector. Earlier this year, EPA announced its plan to initiate such a rulemaking as part of its methane reduction strategy. A second proposed rule was also reportedly sent to OMB for review this week – EPA is working on new definitions for certain regulatory terms associated with permitting sources in the oil and gas industry, in order to assist permitting agencies in making major stationary source determinations. Both of the proposed rules are expected to be published in the Federal Register in August.
Today the U.S. Environmental Protection Agency (EPA) published a proposed rule under the Clean Water Act that would prohibit the discharge of unconventional oil and gas extraction wastewaters to publicly owned treatment works (POTWs). The rule would apply to wastewater associated with production, field exploration, drilling, well completion and well treatment for unconventional operations, but would not apply to wastewater produced by conventional operations. According to EPA, the industry does not currently discharge unconventional wastewater to POTWs and this rule “will ensure that such current industry best practice is maintained over time.” The rule would be immediately effective on the date of publication of the final rule. Comments on the proposed rule must be received on or before June 8, 2015.
This week the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) announced that they have submitted to the White House Office of Management and Budget (OMB) a joint final rule aimed at clarifying which water bodies are subject to Federal jurisdiction under the Clean Water Act. On April 6, 2015, the agencies announced on an EPA blog that the draft final rule was recently submitted to OMB for interagency review. EPA and the Corps published their initial rulemaking proposal in early 2014 and reportedly received more than one million stakeholder comments since then. Interagency review of a final draft rule is generally considered the last step in the federal rulemaking process.
The U.S. Environmental Protection Agency (EPA) is convening a Small Business Advocacy Review Panel to discuss a rulemaking aimed at regulating greenhouse gas emissions from the oil and natural gas sector, as part of the Obama Administration’s methane reduction strategy announced in mid-January. The rulemaking is expected to affect sources in the production, processing, transmission and storage segments of the industry. Small businesses operating in the oil and natural gas sector that expect to be subject to the requirements of the rulemaking may be eligible to serve on the Panel as a “Small Entity Representative” (SER). According to EPA, the role of a SER is “to provide advice and recommendations to ensure that the Panel carefully considers small entity concerns regarding the impact of the potential rule on their organizations and to communicate with other small entities within their sector who do not serve as SERs.” Interested parties must contact EPA by February 11, 2015.
Today the U.S. Environmental Protection Agency (EPA) released a fact sheet outlining the agency’s strategy for reducing emissions of methane and ground level ozone-forming pollutants from the oil and natural gas sector. Release of the EPA strategy is part of a broad multi-agency initiative by the Obama Administration to curb emissions from the sector. In March 2014, the White House identified the reduction of methane and other emissions from the sector as a key element of President Obama’s Climate Action Plan, and directed EPA to assess how best to pursue such reductions. According to EPA’s recently-released fact sheet, emissions of methane (the primary constituent of natural gas) from the sector are “projected to increase by about 25 percent over the next decade if additional steps are not taken to reduce emissions from this rapidly growing industry.” EPA plans to use both “regulatory” and “voluntary” approaches to avoid this anticipated emissions increase.
Among other actions, EPA plans to “build on” its New Source Performance Standards (NSPS) for the sector, namely NSPS Subpart OOOO, to reduce methane emissions and further restrict emissions of volatile organic compounds (VOCs). The fact sheet indicates that EPA intends to issue a proposed rule in late summer and a final rule in 2016. EPA also plans to provide state air permitting agencies with special “guidelines” for controlling VOC emissions from existing oil and gas sources located in ozone nonattainment areas and the Ozone Transport Region, which includes Pennsylvania and New York. EPA expects to propose these Control Technique Guidelines this summer and issue final guidelines in 2016.
The Inspector General (IG) for the U.S. Environmental Protection Agency (EPA), Arthur Elkins, has vowed to continue to evaluate the effectiveness of state and federal regulations of hydraulic fracturing. The IG recently responded by letter to early October correspondence from Senator James Inhofe (R-OK), who claimed that the IG does not have the proper authority to review federal and state hydraulic fracturing regulations. In February 2014, the IG announced its preliminary review of EPA and the states’ existing regulations concerning the management and responsiveness of potential threats to water resources, with the purpose of identifying preventive and response measures and improving coordination among relevant agencies. In May 2014, five Republican Senators, including Inhofe, sent a letter to the IG questioning his authority for such a review, stating that the mission of the EPA Inspector General is to prevent and detect fraud, waste and abuse within the EPA, and not “to investigate either the states themselves or the efficacy of their regulatory programs.”
The U.S. Environmental Protection Agency (USEPA) has, for a second time, extended the public comment deadline associated with its proposed rule to redefine “waters of the United States” and related terms for purposes of various federal Clean Water Act programs. USEPA and the U.S. Army Corps of Engineers initiated the joint rulemaking effort this past spring. Comments are now due on Friday, November 14, 2014. Additional information is available at http://www2.epa.gov/uswaters.
On September 9, the U.S. House of Representatives voted to pass a bill introduced in response to the ‘Waters of the United States’ Proposed Rule that was prepared jointly by the U.S. Army Corps of Engineers (USACE) and U.S. Environmental Protection Agency (USEPA) and published in April 2014. The bill, known as the “Waters of the United States Regulatory Overreach Protection Act of 2014” (H.R. 5078), would prohibit USEPA and USACE from “developing, finalizing, adopting, implementing, applying, administering, or enforcing” the proposed rule. On September 8, the White House announced its objections to the bill, including concerns that H.R. 5078 would “derail” efforts to clarify the scope of the Clean Water Act. The announcement also noted that if the President were presented with H.R. 5078, his senior advisors would recommend that he veto the bill. Notwithstanding H.R. 5078, the public comment deadline for the proposed rule is fast-approaching. Comments are due to USEPA/USACE by Monday, October 20, 2014.
Today the U.S. Environmental Protection Agency (USEPA) published proposed amendments to federal air regulations at 40 C.F.R. 60, Subpart OOOO (Standards of Performance for Crude Oil and Natural Gas Production, Transmission and Distribution). Subpart OOOO was first promulgated in 2012 and later revised in 2013. In response to petitions for administrative reconsideration, USEPA is now proposing additional changes to Subpart OOOO and requesting public comment on a limited set of issues, including the management of flowback gases and liquids associated with well completions. Comments are due on August 18, 2014 (or September 2, 2014, if a public hearing is requested).
The U.S. Environmental Protection Agency (USEPA) recently extended the public comment deadlines associated with its proposed rulemaking to redefine “waters of the United States” for federal Clean Water Act programs and its request for information regarding a possible rulemaking for the disclosure of hydraulic fracturing chemicals. The new comment deadline for the Clean Water Act rulemaking is October 20, 2014. The new deadline to comment on the advance notice of proposed rulemaking regarding chemical disclosure is September 18, 2014.
On April 21, 2014, the U.S. Environmental Protection Agency published in the Federal Register its proposed rule to define “waters of the United States” and related key terms for purposes of determining the extent of federal agency jurisdiction under the Clean Water Act. Public comments will be accepted until July 21, 2014.
On April 15, 2014, the U.S. Environmental Protection Agency (EPA) released five technical white papers for peer review, each one focusing on a possible source of methane and volatile organic compound (VOC) emissions within the oil and natural gas sector. The papers describe estimated emissions and techniques for reducing emissions from the following: compressors; hydraulically fractured oil well completions and associated gas during production; leaks; liquids unloading; and pneumatic devices. The public has until June 16, 2014 to provide comments, which EPA will use in conjunction with the papers to develop a strategy to further reduce methane and VOC emissions pursuant to the Obama Administration’s Strategy to Reduce Methane Emissions revealed in March.
On April 1, 2014, a group of eight U.S. House Democrats sent a letter to the U.S. Environmental Protection Agency (USEPA) urging the agency to address alleged water contamination near drilling sites in Dimock, Pennsylvania; Pavillion, Wyoming; and Parker County, Texas. The congressmen acknowledged that states act as a “major source” of regulations for the oil and gas industry, but expressed their belief that USEPA “has a key role to play in oil and gas development.”
On March 25, 2014, U.S. EPA and the U.S. Army Corps of Engineers released the pre-publication version of a proposed rule intended to make the process of identifying “waters of the United States” covered under the Clean Water Act less complicated and more efficient. Decisions of the U.S. Supreme Court in recent years which addressed the regulatory definition of “waters of the United States” created confusion and uncertainty for permitting programs under the Clean Water Act. The proposed rule attempts to clarify Clean Water Act jurisdictional issues in light of these cases. According to EPA’s webpage regarding the proposed rule, it does not cover any new water bodies not historically protected under the Clean Water Act and clarifies protection for streams and wetlands. Notably, the proposed rule would adopt the “significant nexus” standard enunciated in Justice Kennedy’s concurring opinion in Rapanos v. United States for determining whether “other waters,” which do not fit within the specific categories of waters that are jurisdictional by rule, would be subject to the Clean Water Act. Public comments on the proposed rule will be accepted for 90 days upon publication in the Federal Register.