American Oil and Gas Reporter - July 2016 - 14

IndustryDigest
Supreme Court Says
'WOTUS' Determination
Reviewable By Courts
WASHINGTON-The U.S. Supreme
Court has ruled that a jurisdictional
determination (JD) by the U.S. Army
Corps of Engineers that a property is
subject to Clean Water Act regulation is
a final decision that may be challenged
in court.
The unanimous ruling came May 31
in U.S. Army Corps of Engineers v.
Hawkes Co. Inc., et al, according to the
Pacific Legal Foundation, which
represented Hawkes.
The significance of the ruling, PLF
explains, is that heretofore, the Corps
and the Environmental Protection
Agency have contended that property
owners cannot challenge a "waters of
the United States" determination until
after they undertaken the expensive
process of applying for a wetlands
permit or been subjected to an
enforcement action.
A report on the ruling in the Texas
Alliance of Energy Producers'
newsletter calls Hawkes a "stinging
defeat for the Obama administration's
efforts to expand (EPA's) authority."
Another published report quotes
Larry Liebesman, a senior adviser at
Dawson and Associates and a former
Justice Department environmental
attorney, as saying, "The fact the ruling
was unanimous shows that even the
liberal justices will not automatically
defer to the Obama administration's
Clean Water Act policy interpretations
that impact property rights.
"The ruling also suggests the
WOTUS rule likely will face similar
scrutiny should it reach the court," says
Liebesman, who calls the decision a big
win for conservatives and property
rights advocates who have challenged
the federal government's reach under
the Clean Water Act.
According to court documents, in
February 2012, the Corps issued an
approved JD stating that property in
Marshall County, Mn., that Hawkes Co.
wanted to use for peat mining was a
water of the United States because of a
significant nexus to the Red River of the
North, located 120 miles away. Hawkes
filed suit in the U.S. District Court for
the District of Minnesota, which ruled
Hawkes did not have standing under the
Administrative Procedures Act because
14 THE AMERICAN OIL & GAS REPORTER

a JD was not a final agency action that
could be challenged in court.
That ruling was overturned last year,
court documents indicate, by the U.S.
Court of Appeals for the 8th Circuit. In
upholding the 8th Circuit decision, the
Supreme Court determined:
* An approved JD "mark(s) the
consummation of the Corps' decision
making on the question (of) whether a
particular property does or does not
contain waters of the United States."
* The Corps itself describes
approved JDs as "final agency action."
* JDs give rise to "direct and
appreciable legal consequences."
* An affirmative JD "deprives
property owners of the five-year safe
harbor that negative JDs afford."
The Supreme Court's opinion adds,
"The Corps contends that respondents
have two alternatives: They may
proceed without a permit and argue in a
government enforcement action that a
permit was not required, or they may
complete the permit process and then
seek judicial review. Neither alternative
is adequate." ❒

Silica Rule Challenges
Headed To D.C. Circuit
OKLAHOMA CITY-Petitions
challenging the U.S. Occupational
Safety and Health Administration's new
rule on silica exposure are being
consolidated in the U.S. Court of
Appeals for the District of Columbia
Circuit, according to a report from the
Oklahoma Independent Petroleum
Association.
Citing information from the National
Safety Council, OIPA says seven
petitions seeking review of the action
were filed in six courts of appeal
following OSHA's March 24 release of
its final silica rule. Among the
petitioners, OIPA points out, is the State
Chamber of Oklahoma along with a
number of trade unions.
OSHA's rule reduces the permissible
exposure level to crystalline silica to 50
micrograms per cubic meter of air
averaged over eight hours (AOGR, April
2016, pg. 16). Among other things, the
rule also requires employers to:
* Use engineering controls (such as
water or ventilation) and work practices
to limit worker exposure;
* Provide respiratory protection
when engineering controls are

insufficient; and
* Train workers and limit access to
high exposure areas.
The rule requires the construction
industry to become compliant by June
23, 2017, and the general (including oil
and gas) and maritime industries to be
compliant by June 23, 2018, although
the Independent Petroleum Association
of America notes that the obligation to
implement engineering controls during
hydraulic fracturing operations has been
delayed until five years after the
effective date. ❒

EPA Bans Disposal
Of Shale Wastewater
At Municipal Facilities
WASHINGTON-The U.S.
Environmental Protection Agency has
formally banned disposing of fracture
flowback and/or produced water from
unconventional oil and gas wells in
municipal sewage treatment plants. EPA
announced the rule on June 13 in the
form of a zero discharge pretreatment
standard for onshore unconventional oil
and gas (UOG) extraction facilities to
publicly owned treatment works
(POTWs).
EPA says the rule applies to onshore
extraction from shale and/or tight
geologic formations, but does not
include wastewater associated with
conventional oil and gas or coalbed
methane extraction facilities. "EPA is
reserving such standards for a future
rule making, if appropriate," it says.
The agency says most POTWs are
designed to remove suspended solids
and organic material using biological
treatment. "Wastewater from UOG
extraction can contain high
concentrations of dissolved solids (or
salts), as well as radioactive elements,
metals, chlorides, sulfates, and other
dissolved in organic constituents that
POTWs are not designed to remove,"
EPA states. "Where UOG extraction
wastewaters have been indirectly
discharged to POTWs in the past, there
have been documented cases of elevated
levels of chloride and bromide
occurring in the receiving waters."
EPA says it does not believe the rule
will impose additional costs on industry
or remove any additional pollutants
because, "based on the information
collected, current industry practice is to
American Oil and Gas Reporter - July 2016

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