On November 27, 2020, the US Environmental Protection Agency (“EPA”) published notice that the Texas Commission on Environmental Quality (“TCEQ”) has applied to the US EPA for National Pollutant Discharge Elimination System (“NPDES”) program authorization for discharges of produced water, hydrostatic test water and gas plant effluent. [1] TCEQ’s application (“Application”) was filed in response to a bill passed during the last Texas legislative session that required TCEQ to submit to EPA no later than September 1, 2021, a request for NPDES permitting authority for discharges of produced water, hydrostatic test water and gas plant effluent associated with oil and gas activities currently under the jurisdiction of the Railroad Commission of Texas (RRC). [2] Under this legislation, state authority to regulate these discharges will transfer from the RRC to TCEQ upon EPA’s grant of NPDES permitting authority to TCEQ. Should EPA grant NPDES permitting authority to TCEQ for these discharges, a prospective permittee would generally only need to obtain a single TCEQ authorization (rather than an authorization from both the RRC and EPA). [3]
Continue Reading TCEQ’s Request for NPDES Program Authorization for Oil and Gas Discharges Under Review

On November 9, 2020, EPA’s Office of Research and Development (ORD) released its long-awaited draft handbook that details the office’s process for developing chemical hazard assessments for its Integrated Risk Information System (IRIS) Program. The ORD Staff Handbook for Developing IRIS Assessments (IRIS Handbook) gives useful insight into ORD’s process to develop its IRIS assessments, which provide important toxicological information that federal and state environmental agencies consider when making regulatory and cleanup decisions under multiple statutory programs. EPA will accept comments on the draft handbook and charge questions until March 1, 2021.

Continue Reading EPA Releases Long-Awaited IRIS Handbook, But has Anything Changed?

Last month, the Texas Commission on Environmental Quality (“TCEQ”) launched a temporary “Find It and Fix It” program effective through January 31, 2021 to facilitate air quality compliance for companies with oil and gas operations in the Permian Basin.  Regulated entities that comply with the requirements of the temporary program may be eligible for enforcement discretion. 
Continue Reading TCEQ’s Permian Basin “Find It and Fix It” Program Underway

As we reported in an earlier posting, on June 4, 2020, the Massachusetts Attorney General’s Office (“AGO”) filed a petition, which requested the Massachusetts Department of Public Utilities (“DPU”) to open an investigation into potential changes to local natural gas distribution company (“LDCs”) operations to support the Commonwealth’s legislatively mandated greenhouse gas (“GHG”) emission limit reductions (the “Petition”). Specifically, the AGO’s Petition seeks to evaluate the industry, regulatory and policy adjustments that are requisite to meet the state GHG limits, and to “determine what near and long-term adjustments are necessary to maintain a safe and reliable gas distribution system and protect consumer interests as the Commonwealth transitions” to carbon neutrality by 2050.
Continue Reading Massachusetts DPU Opens Investigation into Natural Gas Distribution Companies

BSEE’s August 2020 update of its Notice to Lessees signals renewed interest in decommissioning of aging oil & gas platforms offshore of California. While so-called “rigs to reefs” in-place decommissioning is a potential option, uncertainty remains surrounding decommissioning methods and timing for platforms, pipelines and related infrastructure located in state and federal waters off the coast of California.
Continue Reading BSEE Renews Offshore Platform Decommissioning Guidelines

California Gov. Jerry Brown signed SB 1371 nearly six years ago, directing the California Public Utilities Commission and the California Air Resources Board to work together to further the dual goals of minimizing safety hazards associated with gas pipeline leaks and reducing pipeline greenhouse gas emissions.
Continue Reading Implementation of Gas Leak Law Puts Emissions Over Safety

On June 4, 2020, the Massachusetts Attorney General filed a Petition which requested the Massachusetts Department of Public Utilities to open an investigation into the potential changes to support the Commonwealth’s legislatively mandated greenhouse gas (GHG) emission limit reductions (the Petition). The AG’s Petition follows a similar proceeding begun in March by the New York Public Service Commission. Collectively, these state actions highlight the challenges the states will encounter to meet the requirement of net-zero carbon emissions by 2050.
Continue Reading No Clear Path on the Transition to Net-Zero GHG Emissions

The first comprehensive revision of the NEPA implementing regulations in over forty years goes into effect today. Litigants sought a preliminary injunction to block implementation of the rule nationwide, but their motion was denied by a district court late last week. While litigation is ongoing in three district courts, the new rule will apply to all new NEPA reviews started on or after September 14, 2020, and agencies will have discretion to apply the new rule to ongoing NEPA reviews initiated before September 14.
Continue Reading After Surviving Preliminary Injunction Motion, New NEPA Rule Becomes Effective Today

Regardless of whether Kisor changed principles of deference under Auer, lower courts appear less inclined to find ambiguity in agency regulations after the Kisor decision; and when they do, “unfair surprise” continues to be the most common factor weighing against deference to an agency’s interpretation.
Continue Reading Lower Courts Grappling with Deference Principles Following Kisor

Flaring has the attention of RRC, Producers and Stakeholders

Flaring has the attention of the Texas Railroad Commission (RRC), oil and natural gas companies and stakeholders such as royalty owners, investors and environmental groups. Requests for RRC authorization of flaring has been on the increase in the Permian Basin. As a result, a number of interested parties are looking at regulatory changes. Some interested parties voice concern that a valuable resource is being wasted, others state that the definition of natural gas ‘waste’ is too limited, still others are concerned about methane emissions and some all of the above. Though the interested parties may not always be aligned, there is a general sense that regulatory amendments are needed.
Continue Reading RRC Flaring Rules – Still Up in the Air