On April 19, 2024, the United States Environmental Protection Agency (EPA) issued a pre-publication notice regarding its designation of two per- and polyfluoroalkyl substance (“PFAS”) compounds, perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), as “hazardous substances” under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), also known as Superfund. EPA’s rule, for the first

This post was co-authored by Beth Ginsberg & Krista McIntyre.

The U.S. Department of Justice (U.S. DOJ) recently issued a memorandum stating that settlements, including consent decrees, entered by the Environmental Protection Agency (EPA) and other federal agencies can no longer include a Supplemental Environmental Project (SEP), unless the SEP is expressly authorized by Congress. Companies and individuals accused of violating environmental laws and permits, like Clean Air Act and Clean Water Act permits, commonly agree to perform SEPs to fund projects that go beyond compliance instead of paying a higher cash penalty to the U.S. Treasury. Going forward, companies, individuals, and local governments will no longer have SEPs as a settlement option.

To support this policy reversal after more than 30 years, U.S. DOJ cites to the Miscellaneous Receipts Act, which grants only Congress the authority to decide how to appropriate federal funds. The U.S. DOJ views SEPs as federal funds, and, in U.S. DOJ’s opinion, the EPA and other federal agencies lack the authority to divert those funds to third party recipients and to select the projects that should receive the funds. The power of the purse rests squarely with Congress. “[W]ith SEPs, money otherwise destined for the Treasury finds its way to another destination, not at the insistence of Congress, where the Constitution puts that authority, but instead at the insistence of an administrative agency, or a non-federal entity, or some combination thereof.”
Continue Reading Reversing 30-Year Policy, U.S. DOJ Says Settlements Can No Longer Include Supplemental Environmental Projects (SEPs)

Environmental groups have obtained a favorable Clean Water Act (“CWA”) ruling from the U.S. District Court for the Central District of California, which can be viewed as an expansion of jurisdiction for stormwater permitting for industrial sources.  In the Order, issued on August 9, 2018, Judge Stephen V. Wilson held that if the U.S. Environmental Protection Agency (“EPA”) determines that stormwater discharges “cause or contribute to violations of water quality standards,” then regulators must limit such stormwater discharges under the mandates of the CWA.  EPA is required to regulate stormwater discharges through the National Pollution Discharge Elimination System (“NPDES”) permitting scheme, and does not have discretion to address the pollution through other methods.
Continue Reading Court Finds that Privately-Owned Industrial Stormwater Discharges Require Clean Water Act Permits

In early January 2018, the U.S. Environmental Protection Agency (“EPA”) decided to halt previous proposals to stay methane rules for new and existing landfills.  The Obama Administration’s EPA issued the final New Source Performance Standards (“NSPS”) and Emissions Guidelines (“EG”) for municipal solid waste landfills on August 29, 2016 (jointly “Methane Rules”).  These updates to the NSPS were promulgated to reduce emissions of methane-rich landfill gas from new, modified and reconstructed municipal solid waste (“MSW”) landfills.  EPA’s current announcement to desert plans for an administrative stay comes after the EPA announced a 90-day administrative stay for the Methane Rules, which went into effect on May 31, 2017.
Continue Reading Trump EPA Will Not Stay Landfill Methane Rules

A reported in a prior blog post, the Western States Petroleum Association (“WSPA”) sued the California Department of Conservation and the Division of Oil, Gas and Geothermal Resources (jointly, the “Department”) in Kern County Superior Court in January alleging that the Department’s oil field wastewater injection prohibitions violate WSPA’s members’ due process rights.  On March 20, 2017, a Kern County judge sided in favor of WSPA, granting an injunction on behalf of Plaintiffs and, separately and independently, on behalf of intervenor B.E. Conway Energy, Inc. and intervenor Sentinel Peak Resources California.  This means that the Department is currently barred from blanket enforcement of its Aquifer Exemption Compliance Schedule Regulations (“Regulations”).
Continue Reading Kern County Judge Grants Injunction, Blocking Blanket Enforcement of Oil Field Aquifer Exemption Regulations

December 31, 2016 marked a deadline for oilfield operators to comply with the Division of Oil, Gas and Geothermal Resources’ (“DOGGR”) Aquifer Exemption and Compliance Schedule Regulations.  Operators were required to either cease injection of oilfield wastewater or obtain an aquifer exemption to continue injecting such wastewater.  This deadline was applicable to 11 aquifers that were historically treated as “exempt” aquifers, but have recently undergone review by DOGGR due to compliance issues with the federal Safe Drinking Water Act (“SDWA”).

For any underground injection project approved by the Division [DOGGR] for injection into one of the 11 aquifers listed in subdivision (b)(1), injection shall cease by December 31, 2016, unless and until the U.S[.] Environmental Protection Agency, subsequent to April 20, 2015, determines that the aquifer or the portion of the aquifer where injection is occurring meets the criteria for aquifer exemption.

Cal. Code Regs. tit. 14, § 1779.1(b)

Continue Reading With Time Running Out for EPA to Act, Oil & Gas Operators Grow Increasingly Anxious about Pending Aquifer Exemption Applications

A lawsuit seeking an immediate halt to oil and gas wastewater injection at 2,500 wells across California took a positive turn for energy producers last week as Superior Court Judge George C. Hernandez denied plaintiffs’ motion for a preliminary injunction in a closely watched case challenging long-standing operations in the California oil and gas industry.

Plaintiffs in Center for Biological Diversity v. California Department of Conservation, California Superior Court, Alameda County, asked the court to throw out the emergency proposed rulemaking recently issued by the Division of Oil, Gas and Geothermal Resources (“DOGGR”). Additionally, the plaintiffs sought an injunction to stop injection wells operating in disputed aquifers.

Under the emergency proposed rulemaking, wastewater injections into non-exempt aquifers must be phased out by 2017. The proposed phasing-out period gives both DOGGR and the U.S. Environmental Protection Agency (“EPA”) the opportunity to determine whether some of the aquifers should be considered suitable places to inject produced water.

In finding no evidence of risk of imminent harm to protected non-exempt aquifers, the court concluded: “On this record, the threat of such contamination [of drinking water aquifers] is theoretical and speculative and plainly outweighed by the other harms [to the public, economy and industry] which are virtually certain to occur if an injunction issues.”
Continue Reading Fate of Injection Wells in Historically Exempt Aquifers Comes Closer to Determination

According to several news organizations, Governor Brown has announced plans to form a new panel to review the recent well stimulation study conducted by the California Council on Science and Technology (“CCST”).

The study found that while there is little evidence that hydraulic fracturing is directly linked to widespread negative health and environmental impacts, additional

The Ninth Circuit Court of Appeals capped a saga of over seven years on June 18 by extending its March 11, 2015 ruling in support of alternatives to imposing hefty fees on individual companies which have complied with the law, but happen to do business in California’s Central Valley or South Coast. Environmental groups challenged USEPA’s approvals of the alternatives adopted by both the South Coast Air Quality Management District and the San Joaquin Valley Air Pollution Control District. The March 11 ruling, in Natural Res. Def. Council v. EPA (9th Cir. 2015) 643 F.3d 311, upheld the SCAQMD’s alternative, which pays the fees from surplus air quality plan funds. The June 18 ruling in Medical Advocates for Healthy Air v. US Environmental Protection Agency (9th Cir. June 18, 2015, No. 12-73386 (opinion ordered nonpublished)) clarified extension of the March ruling to uphold the SJVAPCD’s alternative, which pays the fees from motor vehicle fees.

Background:

The 1990 Amendments to the Federal Clean Air Act added Section 185 imposing “nonattainment fees” on any “Major Source” of emissions in any area that had severe or extreme air quality problems Southern California and the San Joaquin Valley fell squarely within this provision, which also would apply to businesses emitting over 10 tons per year (100 tons applies to many US regions). While failure was alleged for the region, yet the fees would be levied on individual businesses even though most were in full compliance with the strictest air quality requirements in the Country.
Continue Reading Ninth Circuit Limits Clean Air Act “Nonattainment Fees” in California’s San Joaquin Valley

The clamor over hydraulic fracturing continued Wednesday as environmental activists filed another lawsuit to limit oil and gas development in California.  The lawsuit, filed by Earthjustice on behalf of the Center for Biological Diversity and Los Padres ForestWatch, challenges a plan to open portions of federal land in California to oil and gas operations.

The groups claim that the Bureau of Land Management (“BLM”) did not consider the environmental impacts of hydraulic fracturing when it approved a Resource Management Plan, which could potentially open a large area of federal land in the state’s most oil-rich regions to leasing.  The plan found that “overall, in California, for industry practice of today, the direct environmental impacts of well stimulation practice appear to be relatively limited.”

In 2013, a federal judge ruled that the BLM violated the National Environmental Policy Act when it issued oil leases in Monterey and Fresno counties without considering the environmental impact of hydraulic fracturing.  This ruling has led to a de facto moratorium on new leasing in California on federal lands.
Continue Reading Yet Another Lawsuit Seeking to Limit California Oil Development