On March 25, 2014, EPA and the Army Corps of Engineers issued a pre-publication release of the much-anticipated proposed rule to define the jurisdictional “Waters of the United States” that are regulated under the Clean Water Act (CWA). The proposed rule is aimed at providing clarity and certainty to “jurisdictional water” determinations in the wake of the uncertainty resulting from the 2006 U.S. Supreme Court ruling in Rapanos v. U.S. To that end, the rule proposes to minimize the number of case-specific determinations that will be required by codifying specific categories of waters that will automatically be included or excluded as jurisdictional “waters of the United States.”
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New Fund Available for the Investigation and Cleanup of Petroleum-Impacted Properties
Effective January 31, 2014, the Colorado Division of Oil and Public Safety (Division) promulgated regulations implementing Colorado Revised Statute § 8-20.5-103(9) which established the new Petroleum Cleanup and Redevelopment Fund (Fund). The Fund was created using money the State received in settlement of certain claims related to the Petroleum Storage Tank Fund.
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EPA to Hold Public Hearing in Denver on Proposed General Permits and Permits by Rule for Minor Source NSR Permitting in Indian Country
On March 12, 2014, the Environmental Protection Agency (EPA) will hold a public hearing in Denver, Colorado on the proposed “General Permits and Permits by Rule for the Federal Minor New Source Review Program in Indian Country,” which the agency initially released on December 12, 2013, and published in the Federal Register on January 14, 2014 (79 Fed. Reg. 2546). The proposal is intended to further implement and amend the Indian Country Minor New Source Review (NSR) Rule issued by EPA in July 2011, which authorized but did not specifically include any general permits or permits by rule for minor sources operating in Indian Country.
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New Colorado Policy for Conditional Closure of “Low-Threat” Sites with Groundwater Contamination – A Long-Awaited Exit From Remediation Limbo?
On January 8, 2014, the Colorado Department of Public Health and Environment’s (CDPHE) Hazardous Materials and Waste Management Division published a new policy which provides a roadmap for closing “low-threat” sites where groundwater contamination concentrations exceed Colorado’s groundwater standards.
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Colorado’s Greenhouse Gas Inventory Update: A Work in Progress
On December 11, 2013, the Colorado Department of Public Health (CDPHE) issued its Draft Colorado Greenhouse Gas Inventory – 2013 Update (the GHG Update); a report required every five years. The GHG Update summarizes all of Colorado’s GHG emissions and sinks from 1990 to 2030. To generate the GHG Update, CDPHE used the Environmental Protection Agency’s (EPA’s) model for assigning emission factors and making emission projections. EPA’s model contains Colorado-specific default values, but still relies on numerous assumptions and uncertainties that affect the accuracy of the projections. For example, CDPHE states that for the final inventory, it “will consider how to customize values to more accurately reflect Colorado GHG emissions.” For affected industry participants wishing to comment on the GHG Update, comments on the report are due January 31, 2014.
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The Winds of Climate Change are Blowing
The winds of legal, regulatory, and policy responses to climate change are blowing perhaps more than ever before. The consequences for all stakeholders, and particularly those companies operating in the energy sector, are significant.
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For Ohio Assignments, Beware the
A recent decision from the Ohio Court of Appeals clarifies that a prohibited assignment of an oil and gas agreement (including an oil and gas lease) containing a “soft consent” may be invalidated in the same manner as if the oil and gas agreement contained a “hard consent.”
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The New ASTM Standard — A Catch-22 for Property Transactions Needing a Phase I Site Assessment
On November 6, 2013, ASTM International (“ASTM”) issued its revised Standard Practice for Phase I Environmental Site Assessments (“Phase I site assessments”) or “audits,” used in most commercial property transactions. While the new standard is generally a good development, it has created a true catch-22 for prospective purchasers.
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Where There’s Smoke There’s Fire? – How it Just Got Harder for Colorado Oil and Gas Operators to Meet Air Emissions Requirements
The Air Pollution Control Division (Division) has again revised its P.S. Memo 10-02: “Oil & Gas Atmospheric Condensate Storage Tank Batteries System Reporting Guidance (P.S. Memo)” to make several significant changes regarding reportable air emissions under Air Quality Control Commission Regulation No. 7, § XII. The revised P.S. Memo likely will make it more difficult for oil and gas owners and operators to comply with the system-wide volatile organic compound (VOC) emission reduction requirements applicable to condensate storage tanks in the Denver-Metropolitan Area and North Front Range 8-Hour Ozone Nonattainment Area (Nonattainment Area).
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Rebuilding After the Colorado Floods – Complying With Clean Water Act § 404
The recent devastating floods in Colorado have created significant challenges for a wide variety of companies. In the aftermath, affected businesses must quickly make important decisions related to response activities that may be subject to a variety of regulatory programs, including Section 404 of the Clean Water Act (CWA). Section 404 regulates the discharge of any dredged or fill material (including dirt and debris) into wetlands, streams, and other CWA-regulated Waters of the United States (WOUS). As companies rebuild damaged bridges, utility structures, railroad tracks, well pads, pipelines, access roads, and other structures in or around regulated WOUS, it will be critical to be mindful of the requirements and options for doing so under the 404 program.