Vol. 6, No. 1

Topics discussed in this week’s Report include:

  • Consent decree set deadline for EPA to determine whether to revise existing regulations governing disposal of solid waste from oil and gas production under RCRA.
  • Wyoming district court allowed claims related to alleged contamination of drinking water by hydraulic fracturing to go forward.
  • FERC issues positive draft environmental impact statement for Atlantic Coast pipeline project.
  • Brazilian state imposed 10-year moratorium on hydraulic fracturing.

Federal

Consent decree sets deadline for EPA to determine whether to revise existing regulations governing disposal of solid waste from oil and gas production under RCRA. A consent decree recently approved by the U.S. District Court for the District of Columbia resolves a Resource Conservation and Recovery Act (RCRA) citizen suit filed by environmental nongovernmental organizations (NGOs) against the U.S. Environmental Protection Agency (EPA) concerning the oil and gas industry. The consent decree requires the EPA to determine whether it should revise Subtitle D rules governing solid wastes generated by oil and gas exploration, development and production by March 15, 2019, and, if so, to issue a proposed rule. The consent decree then requires the EPA to finalize the revised rule, if it deemed one was necessary, by July 15, 2021. In their complaint, the NGOs alleged that the EPA violated a provision of RCRA requiring the EPA to review, and revise if necessary, rules governing solid wastes every three years.

Wyoming district court allows claims related to alleged contamination of drinking water by hydraulic fracturing to go forward. The U.S. District Court for the District of Wyoming denied defendant Encana Oil & Gas (USA) Inc.’s motion for summary judgment, allowing plaintiffs’ fraud, nuisance, negligence and other common law claims in connection with alleged water contamination from hydraulic fracturing near Pavillion, Wyoming, to go forward. The plaintiffs claim that a company that Encana later acquired contaminated their drinking water and subsequently committed fraud by failing to test their drinking water for petroleum in line with a 2003 settlement. In denying Encana’s motion for summary judgment, the court rejected the company’s argument that the 2003 settlement barred plaintiffs’ claims. The court also determined that disputed issues of fact remained as to whether the statute of limitations had run for the case’s claims. The case will now proceed toward a trial.

FERC issues positive draft environmental impact statement for Atlantic Coast pipeline project. The Federal Energy Regulatory Commission (FERC) issued a draft environmental impact statement (EIS) indicating that any adverse environmental effects associated with the proposed Atlantic Coast pipeline project would be “reduced to less-than significant levels” through implementation of the project’s proposed mitigation and additional programs proposed in the draft EIS. Four companies — Dominion, Duke Energy, Piedmont Natural Gas and Southern Company Gas — are involved in the proposed pipeline project, which would carry natural gas from West Virginia to Virginia and North Carolina. Comments on the proposed EIS are due by April 6.

International

Brazilian state imposes 10-year moratorium on hydraulic fracturing. The government of Parana, one of Brazil’s 26 states, enacted a law that prohibits licensing of shale gas exploration and development for 10 years. After the moratorium ends, the statute permits oil and gas companies to apply for a hydraulic fracturing license by agreeing to participate in public hearings on the application and submitting an environmental impact assessment and various technical studies. Parana is the first Brazilian state to impose a moratorium on hydraulic fracturing.