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  1. Texas Greenhouse Gas Regulations Go Into Effect

    Tuesday, April 22, 2014 12:50 pm by and

    On April 17, the Texas Commission on Environmental Quality’s new greenhouse gas (GHG) regulations became effective, establishing the framework for a new GHG permitting program at TCEQ, which the agency hopes to begin implementing in the summer of 2014.  Before this can happen, EPA must officially approve the rules and also rescind the Federal Implementation Plan under which it currently regulates GHGs in Texas. 

    The rules have immediate implications for a variety of facilities, however.  Whereas the changes to the PSD program only involve new or modified facilities, the Title V aspects of the rules affect both new and existing facilities.  Any existing facility with a “potential to emit” GHGs above EPA’s “major source” thresholds will have to either obtain a Title V permit or certify to TCEQ that its actual emissions are below the thresholds (found in 30 Tex. Admin. Code § 122.10(14)(H)).  The timing of this certification depends on whether the facility currently has a Title V permit for non-GHG emissions.  (more…)


  2. EPA Requests Feedback on Methane Emissions

    Wednesday, April 16, 2014 5:22 pm by , , and

    By way of update to last month’s client alert, on April 15, 2014, EPA released five white papers that discuss methane and volatile organic compound (VOC) emissions from the oil and gas sector.  The release of the white papers is part of the White House’s Climate Action Plan Strategy to Reduce Methane Emissions

    The white papers cover emissions from five types of emission sources:

    • Compressors
    • Well completions and production from hydraulically fractured wells
    • Leaks
    • Liquids unloading
    • Pneumatic devices (more…)

  3. D.C. Circuit Hears Argument on 2013 Renewable Fuels Standard

    Tuesday, April 8, 2014 3:06 pm by

    On Monday, April 7, the D.C. Circuit heard oral argument in Monroe Energy v. EPA, No. 13-1265, which challenges the 2013 renewable fuels standards (RFS).  Judges Rogers, Griffith, and Pillard presided over the argument. Monroe Energy, an independent refiner, and trade associations API and AFPM challenged the 2013 RFS. PBF Holding Company LLC intervened on behalf of Petitioners, and multiple parties intervened on behalf of EPA. (more…)


  4. Proposed Waters of the U.S. Rule Changes the Question for Adjacent Wetlands

    Monday, April 7, 2014 12:55 pm by

    Prairie Pothole Wetlands
    Last week we discussed various elements of the U.S. EPA’s and Army Corps of Engineers’ proposed rule redefining Waters of the United States.  Today, we note a potentially wide-ranging impact of the rule regarding the identification of wetlands.

    Wetlands can be difficult for laypersons to identify, as some are wet for as little as 5-12% of the growing season. In mountainous areas of northern states, that can be as little as 4 days, so for much of the year they can be completely dry.  But wetlands are regulated like other waters and require a permit before they can be disturbed.  As a result, the greater the acreage of jurisdictional wetlands there are on a particular property, the more complex the permitting process will be. (more…)


  5. Proposed “Waters of the U.S.” Rule: What Is Left of the Significant Nexus Test?

    Thursday, April 3, 2014 8:00 am by

    Yesterday, we continued examining the confusion inherent in EPA and the Corps’ proposed rule redefining “Waters of the U.S.”  Today we finish that analysis by asking what is left of the Significant Nexus test, if anything.

    As we discussed on Monday, the proposed rule tries to have its cake and eat it too.  The rule describes certain waters that are deemed always to have a significant nexus – and so are always jurisdictional – but also retains the significant nexus test for use on case-by-case basis.  As a reminder, under the proposed rule, “significant nexus” waters are jurisdictional if

    alone or in combination with other similarly situated waters in the region. . . [they] significantly affect[] the chemical, physical, or biological integrity of a [traditionally navigable or interstate water or the territorial seas]

    (Our emphasis). This test, which the agencies have been using since 2007 used to be opaque; its place in the new rule makes it even more so. (more…)


  6. Proposed “Waters of the U.S.” Rule: Clarity, Part 3

    Wednesday, April 2, 2014 8:00 am by

    On April 1, we looked at the opaque definitions of riparian area and floodplain in EPA and the Corps’ proposed rule redefining “Waters of the U.S.”  Unfortunately, part of the definition of another term – tributary – also raises more questions than it answers.

    We looked at part of the definition of tributary last Thursday, when examining the reach of the agencies’ jurisdiction upstream from traditionally navigable and interstate waters.  At the time, we discussed the portion of the definition that identifies a tributary as any feature with a bed and bank that contributes flow to any downstream jurisdictional water.  But that’s only part of the definition.  It continues: (more…)


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