Nelson Mullins Riley & Scarborough LLP
Karen Crawford

July 8, 2016

In May 2016, EPA finalized updates to its New Source Performance Standards (NSPS) for the oil and gas industry which amended 40 CFR Part 60, Subpart OOOO and added new requirements (Subpart OOOOa) to those established for Volatile Organic Compounds (VOCs) and sulfur dioxide (SO2) established for this industry sector in 2012. Importantly, the new requirements address reductions of greenhouse gas (GHGs) emissions, specifically methane. In its Executive Summary, EPA discussed the efforts by the agency to “complement” and “improve” the existing rules issued in 2012, stressing the agency’s efforts to engage states and stakeholders and solicit comments prior to its 2015 proposal or the rule. EPA also stressed it worked closely with the Bureau of Land Management to avoid conflicts and evaluated existing state and local programs to attempt to limit conflicts, where possible.

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EPA Increases Statutory Civil Penalty Levels

Troutman Sanders LLP
Carroll W. McGuffey III and Mason Buck Dixon

July 8, 2016

In 2015, Congress amended the Federal Civil Penalties Inflation Adjustment Act of 1990 to require agencies like EPA to change the way that they adjust maximum civil penalty levels to account for inflation. In the past, EPA has only adjusted penalty levels for inflation once every several years, but the new law requires EPA to apply two new adjustments—an initial “catch-up” adjustment, and then annual adjustments beginning January 15, 2017. The Act mandates federal agencies, including EPA, to publish notice of the initial adjustments in the form of “interim final rules” by July 1, 2016.

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NJDEP Again Adopts Substantial Hikes in Site Remediation Program Fees Beginning July 1, 2016

Manko Gold Katcher Fox LLP
Bruce S. Katcher

The original article was posted in the MGKF Newsflash

July 5, 2016

In a repeat of last year’s increase, the New Jersey Department of Environmental Protection (NJDEP) announced in the July 5, 2016 New Jersey Register that it had increased annual remediation fees, the remedial action permit (RAP) application fees, and the annual RAP fees for the Site Remediation Program (SRP), in most cases by 25 percent.  For fees that are invoiced by the NJDEP (both annual remediation fees and RAP annual fees) the new fees go into effect with any invoices dated after July 1, 2016. For RAP applications, the new fees go into effect with any that are postmarked on or after July 1.

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Gasoline with Lead is not Subject to the Petroleum Exemption in Massachusetts Clean-Up Statute Says Top Mass. Court

Beveridge & Diamond PC
Jeanine L.G. Grachuk

July 7, 2016

In a decision that has broad implications, gasoline with additives such as lead is not included in the exemption under the Massachusetts remediation statute, Chapter 21E, for oil releases located in certain drinking water areas according to the Supreme Judicial Court’s decision upholding an interpretation by the MassDEP.

Under the state cleanup law, releases of oil in certain potential drinking water sources are subject to fewer requirements than releases of hazardous materials. MassDEP has interpreted this oil exemption to be limited to oil or gasoline without additives and not to include gasoline containing additives such as lead. An oil company, which was conducting cleanup of a leaded gasoline release, claimed the oil exemption on the basis that the definition of “oil” in M.G.L. c. 21E includes gasoline with additives. The decision by the top Massachusetts court on June 6, 2016, in Peterborough Oil Company, Inc. v. MassDEP could have broad implications for clean-ups that involve gasoline with other additives, such as MTBE.

The Court started with Chapter 21E’s definition of oil and concluded that the definition is ambiguous when the petroleum hydrocarbons are mixed with a hazardous material, such as lead. Having found that reference to CERCLA’s petroleum exclusion was of little help, the Court looked at the intent of the legislature to give MassDEP broad power to promulgate regulations to address sites and to compel the cleanup of sites, finding that interpreting “oil” when used in this exemption to include leaded gasoline would “eviscerate the legislative purpose.” Finally, the Court stated that MassDEP has consistently interpreted the oil exemption in this way. As such, the Court deferred to MassDEP’s interpretation of the oil exemption, holding that it is limited to petroleum hydrocarbons not mixed with hazardous materials such as lead.

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