10th Circuit expands PSM coverage

The Tenth Circuit Court of Appeals (covering Oklahoma, Kansas, New Mexico, Colorado, Wyoming, and Utah) issued an opinion on Tuesday (10/27/2020) that expands the applicability of OSHA’s process-safety-management standard to interconnected processes—even when the interconnected process does not contain any highly hazardous chemicals. The Tenth Circuit reached its decision based upon a plain reading of the regulatory definition of “process.” In doing so, the court also rejected Wynnewood Refining’s argument, under Kisor v. Wilkie , that the court should consider the “text, structure, history,...

FERC Issues Settlement Order Reaffirming “Gaming” Prohibition in Power Markets

Last week the Federal Energy Regulatory Commission (FERC) issued an Order Approving Stipulation and Consent Agreement involving High Desert Power Project, LLC (High Desert) and Middle River Power LLC. (Middle River) to resolve allegations of market manipulation in the California Independent System Operator (CAISO) market. The settlement is noteworthy because it involved allegations of market manipulation that were completely absent of any attempt to influence market prices or to send false signals to the market. This instead is one of the purest examples of FERC taking the position that its...
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FERC Proposes Policy Statement Encouraging RTOs/ISOs to Develop Rules Incorporating State Determined Carbon Prices

On October 15, 2020, the Federal Energy Regulatory Commission (“FERC” or the “Commission”) issued a Proposed Policy Statement regarding carbon pricing in organized wholesale electricity markets. In short, the statement would clarify that the Commission has “jurisdiction over RTO/ISO market rules that incorporate a state-determined carbon price.” The Commission also proposes that it be Commission policy “to encourage efforts to incorporate a state-determined carbon price in RTO/ISO markets.” Commissioner Danly dissented in part, agreeing that FERC has jurisdiction “to entertain section 205...

Update on State of Texas NPDES Application to Issue Federal Discharge Permits for Oil and Gas Facilities

EPA Review Process On October 12, 2020, Region 6 of the United States Environmental Protection Agency (“EPA”) received a delegation request from the State of Texas seeking authority to issue federal permits for discharges of produced water, hydrostatic test water and gas plant effluent from certain oil and gas activities into water in the state. The State of Texas (“State”) submitted the delegation request pursuant to the requirements of House Bill 2771, 86 th Texas Legislature, 2019. The EPA review of the delegation request will proceed under 40 CFR Part 123. Under Section 123.61(b), within...

TCEQ Accepting Comments on Proposed Changes to Penalty Policy

At a September 24, 2020 Work Session, TCEQ Executive Director Toby Baker sought approval from the TCEQ Commissioners to propose changes to the TCEQ’s Penalty Policy (RG-253) that will give the agency discretion to significantly increase administrative penalties for certain violations. The TCEQ formally opened the public comment period on the proposed changes on September 30, 2020, and will be accepting public comments on the proposed changes through October 30, 2020. The TCEQ Penalty Policy establishes the policies that the agency uses in calculating penalties for purposes of administrative...

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