Articles Posted in Environmental

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BSEE_logo-300x214The looming decommissioning liabilities of offshore energy producers have been a focus of the federal government in recent years. One recent case out of the U.S. Court of Federal Claims, Taylor Energy v. United States, highlights the tension between the federal government’s desire to maintain financial security for decommissioning activities, and that of an operator whose security is tied up indefinitely while the government awaits technological advances to allow for safe decommissioning.

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Environmental_Protection_Agency_logo-275x300After much study, EPA has decided against changing its current RCRA Subtitle D rules affecting the state regulation of oil and gas exploration & production waste. Since 1988, EPA has determined that most such wastes should be regulated as only non-hazardous wastes subject to RCRA Subtitle D, and not the more onerous hazardous waste provisions of RCRA Subtitle C. (See the Regulatory Determination of Oil and Gas and Geothermal Exploration, Development and Production Wastes, 53 FR 25,446 (July 6,1988).)

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Environmental_Protection_Agency_logo-275x300On Tuesday, April 23, 2019, in a development of interest to practically anyone who operates a plant or business, EPA published its Interpretive Statement in the Federal Register. (See 84 FR 16810 (April 23, 2019).) After considering the thousands of comments it received in response to a February 20, 2018, Federal Register notice, EPA has concluded that “the Clean Water Act (CWA) is best read as excluding all releases of pollutants from a point source to groundwater from a point source from NPDES program coverage, regardless of a hydrological connection between the groundwater and jurisdictional surface water.”

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On April 10, President Trump issued two Executive Orders (EO) relating to the revision of some aspects of federal energy policy and development.

1. The first EO is very comprehensive, affecting many federal agencies and departments, and is entitled “Promoting Federal Infrastructure and Economic Growth.” The EO emphasizes its concern with the need for infrastructure that “ is capable of safely and efficiently transporting these plentiful resources to end users.” To that end, the EO:

(A)     states the general policy that the U.S. Government is to promote private investment in the Nation’s infrastructure by establishing efficient permitting processes and procedures that avoid duplication and result in increased regulatory certainty;

(B)     reviews and revises existing federal guidance and regulations regarding Section 401 of the Clean Water Act (CWA), with particular emphasis on EPA’s guidance document, CWA Section 401 Water Quality Certification, and actions will be taken in accordance with a regulatory schedule set forth in the EO which has as its objective a notice of proposed rulemaking on the Environmental Protection Agency’s (EPA) Section 401 regulations to be published in 12 months, with the final rules to be issued by May 2020;

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In a decision released on March 31, in Sackett v. EPA, the U.S. District Court for Idaho held, without benefit of oral argument, that the Environmental Protection Agency’s (EPA) motion for summary judgment should be granted, and accordingly, the Sacketts had violated the Clean Water Act (CWA) by making improvements to 0.63 acres of land they owned without a required CWA permit when the land qualified as a “wetlands.”

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On March 29, the U.S. District Court for the District of Alaska issued two separate rulings that reversed and set aside energy and environmental decisions made by the current administration, which had revoked decisions made in these same matters by the prior administration. The cases are League of Conservation Voters, et al., v. Trump (concerning the development of oil and gas leases on the Outer Continental Shelf (OCS)) and Friends of Alaska National Wildlife Refuges, et al., v. Bernhardt, Acting Secretary of the U.S. Department of the Interior (which concerns a Land Exchange that would facilitate the construction of a road between two remote Alaska communities when that road would traverse parts of a designated national wilderness).

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On March 4, the U.S. Court of Appeals for the Seventh Circuit decided an important Resource Conservation and Recovery Act (RCRA) Citizen Suit, LAJIM, LLC, et al. v. General Electric Co., affirming the U.S. District Court for the Northern District of Illinois’s ruling finding General Electric Company (GE) liable for the contamination on summary judgment but denying  LAJIM, LLC’s request for injunctive relief “because, despite the many opportunities the court provided, plaintiffs did not offer evidence stablishing a need for injunctive relieve beyond what the company had already done in the state action.”

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On March 19, the U.S. Supreme Court decided the case of Air & Liquid Systems Corp. v. Devries, affirming the ruling of the U.S. Court of Appeals for the Third Circuit in this maritime tort case involving the availability of the “bare-metal defense.” The bare-metal defense’s basic idea is that a manufacturer who delivers a product “bare metal”—that is without the insulation or other material that must be added for the product’s proper operation—is not generally liable for injuries caused by asbestos in later-added materials.

The Court confirmed that

“maritime law’s special solicitude for the safety and protection of sailors counsels us to adopt a standard-based approach to the bare-metal defense that permits a plaintiff to recover, at least in negligence, from a manufacturer of a bare-metal product when the facts show the plaintiff’s injuries were a reasonably foreseeable result of the manufacturer’s conduct.”

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On March 7, the U.S. Court of Appeals for the Second Circuit decided the case of Vermont Railway, Inc. v. Town of Shelburne. The U.S. District Court for the District of Vermont granted the railway a permanent injunction against an ordinance passed by the Town of Shelburne, VT, that placed severe restrictions on the railway’s use of a storage facility to be used for the stockpiling and storage of large quantities of rock salt to be used in the railroad’s winter de-icing operations.

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On February 28, the U.S. Department of Transportation’s Pipeline and Hazardous Materials Safety Administration (PHMSA), “in consultation with the Federal Railroad Administration and pursuant to the Fixing America’s Surface Transportation Act (FAST Act) of 2015, issued a Final Rule “to revise and clarify requirements for comprehensive oil spill response plans (COSRPs)” and “[e]xpands the applicability for COSRPs; modernizes the requirements for COSRPs; requires railroads to share information about high-hazard flammable train (HHFT) operations with State and tribal emergency response commissions to improve community preparedness; and incorporates by reference a voluntary standard.

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