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EPA Announces $1.9M CWA Settlement in WY

Thursday, March 4, 2021

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A settlement with private energy operator Fleur de Lis Energy and Fleur de Lis Operating, LLC (Fleur de Lis) was reached with the U.S. Environmental Protection Agency last month, in which the company agreed to pay $1.9 million.

The settlement resolves alleged Clean Water Act violations associated with the company’s operations of oil and gas facilities in Wyoming.

What Happened

According to the news release, the EPA has alleged Fleur de Lis of six separate discharges of crude oil and produced water from company-operated facilities into nearby waters and their adjoining shorelines.

The EPA also alleges Fleur de Lis of inadequate Spill Prevention Control and Countermeasure (SPCC) Plans for five of its facilities, inadequate Facility Response Plans (FRP) for three of its facilities and no FRP for one facility.

In referencing the Clean Water Act, the regulation prohibits the discharge of oil to waters of the United States that violate applicable water quality standards, if the discharge causes a film, sheen or discoloration on the water’s surface or adjoining shorelines, or when a sludge or emulsion is deposited beneath the surface of the water or upon adjoining shorelines.

fergregory / Getty Images

A settlement with private energy operator Fleur de Lis Energy and Fleur de Lis Operating, LLC (Fleur de Lis) was reached with the U.S. Environmental Protection Agency last month, in which the company agreed to pay $1.9 million.

Regarding the spills and produced water, the EPA specifically cites Fleur de Lis oil and gas operations for several violations occurring between Oct. 5, 2016, through May 29, 2018. Within that time, the EPA notes one spill in the Linch Complex Field in Johnson County and another five spills in the Salt Creek Field in Natrona County.

Each of the spills were reported to have negatively impacted adjoining shorelines and/or caused a sheen on tributaries to Salt Creek, in addition to a tributary of the Powder River. The two largest spills reportedly released 7,307 barrels (306,907 gallons) and 559 barrels.

As for the facilities that failed to have proper SPCC plans, the EPA warns that discharges from these facilities could potentially impact the tributaries as well. In addition, EPA alleges that Fleur de Lis failed to prepare adequate FRPs, or had no FRPs in place, from April 2015 through December 2017 at four facilities and failed to develop and implement a facility response training and drill/exercise program.

Under the Oil Pollution Prevention portion of the Clean Water Act, facilities with 1,320 gallons of oil that have the potential for a spill to reach the nation’s waters are required to have an SPCC Plan. While facilities with storage capacity of one million gallons or more and have the potential to impact fish, wildlife and sensitive environments are also required to meet FRP requirements.

In the case of Fleur de Lis, the planning distance for the four facilities, which represents the extent of potential impacts associated with a worst-case spill scenario, extends over 90 miles to the Powder River.

The Settlement

In wake of the allegations, Fleur de Lis was charged with a $1.9 million penalty, which will be deposited into the Oil Spill Liability Trust Fund. The fund is used by federal agencies to respond to discharges of oil and hazardous substances.

"Companies that store oil must ensure they have adequate spill prevention and discharge response plans to protect public health and the environment," said Suzanne Bohan, director of EPA Region 8’s Enforcement and Compliance Assurance Division. "EPA is committed to ensuring compliance with federal requirements that safeguard our rivers and streams.”

Since the reaching the settlement, Fleur de Lis has submitted SPCC and FRP plans that satisfy regulatory requirements. In addition, the company has also reached a satisfactory rating in continuing its pipeline maintenance program and has demonstrated that it can implement its FRP and respond to discharges into Salt Creek and the Powder River.

Waterway News

Also last month, a coalition of environmental groups alerted the Biden administration that they would file suit if the Army Corps of Engineers failed to reconsider Trump-era permits in relation to waterway protection and industry activity.

The notice of intent targeted 16 nationwide permits allowing discharge from oil and gas development projects and was filed by the Center for Biological Diversity, Sierra Club and Natural Resources Defense Council, among others.

However, the waterway protection rollbacks start back in August 2019, when the EPA ssued several proposals—including revisions to New Source Review regulations and changes to certifications under the Clean Water Act—that would have a direct impact on power plant and gas pipeline construction.

One of them suggested making changes in the process through which states give Section 401 certifications for projects under the Clean Water Act.  The proposed CWA rule limits state regulatory considerations for natural gas infrastructure and was expected following Executive Order 13868, “Promoting Energy Infrastructure and Economic Growth,” from President Donald J. Trump, which was issued in April.

After the Trump administration rolled back nearly 95 environmental rules, in January, the EPA stated it would be reducing the number of waterways receiving federal protection under the Clean Water Act.

Specifically, the administration had finalized a rule to remove environmental protections from ephemeral bodies of water—meaning bodies of water that only form after rainfall or only flow part of the year. However, the revision also applies to streams, wetlands, groundwater, waste treatment systems and priorly converted cropland and farm watering ponds.

In May, the Natural Resources Defense Council, along with its partners, announced that they had filed a lawsuit against the EPA and the Army Corps of Engineers over the rule. According to the NRDC, the Navigable Waters Protection Rule—which the council refers to the “Dirty Water Rule”—excludes millions of miles of rain-dependent streams and millions of acres of flood-preventing, pollution-trapping wetlands from safeguards outlined in the CWA.

In the lawsuit, both the EPA and the Corps were accused of violating the Administrative Procedure Act and the CWA when promulgating the Navigable Waters Rule. The violations are specifically pointed to the agencies’ disregard for the Navigable Waters Rule’s impacts on the integrity of the nation’s waters, which removes protections for waters and overlooks science-based findings reported in the CWA.

The following month, former EPA Administrator Andrew Wheeler announced that the agency had issued a final rule that will both promote the construction of energy-based infrastructure projects and protect waterways across the nation.

The final rule now:

  • Specifies statutory and regulatory timelines for review and action on a Section 401 certification—requiring final action to be taken within one year of receiving a certification request;
  • Clarifies the scope of Section 401, including clarifying that 401 certification is triggered based on the potential for a project to result in a discharge from a point source into a water of the United States. When states look at issues other than the impact on water quality, they go beyond the scope of the Clean Water Act;
  • Explains EPA’s roles under Section 401;
  • Reaffirms the agency’s statutory responsibility to provide technical assistance to any party involved in a Section 401 water quality certification process; and
  • Promotes early engagement and coordination among project proponents, certifying authorities and federal licensing and permitting agencies.

Although, issuing the final rule wasn’t favored among all. According to reports, many Democrats and environmental groups opposed the ruling, as the original Section 401 of the Clean Water Act was critical in protecting state drinking water quality. In addition, the final rule will also burden states with limited resources in conducting project evaluations in reduced time restrictions.

Some believe that the EPA will have a difficult time should the ruling be legally challenged, as the Supreme Court explicitly affirmed states’ authority to impose conditions on projects based on state law in 1994.

   

Tagged categories: Clean Water Act; Environmental Controls; Environmental Protection Agency (EPA); EPA; Health and safety; Laws and litigation; Lawsuits; NA; North America; Oil and Gas; Quality Control; Water/Wastewater

Comment from Tom Schwerdt, (3/4/2021, 9:02 AM)

Seems too low for dumping hundreds of thousands of gallons of oil into our shared water across six separate incidents.


Comment from Tony Bochniak, (3/5/2021, 9:52 AM)

Besides the fine that was agreed to, I didn't read anything about the cleanup efforts that may or may not have occurred. Was any cleanup done?


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