Latest Blog Posts


July 11, 2014 11:08 AM | Posted by William Brady
In another “end run” around the state’s General Assembly, proponents of greater restrictions on oil and gas exploration in Colorado are again employing the initiative process, this time to authorize local governments to enact laws within their geographic boundaries more restrictive than state law, and even go so far as to potentially ban all exploration activity.  Alongside a companion ballot language challenge allowing for more restrictive statewide setback requirements (the subject of a prior article, (Colorado Supreme Court Approves Ballot Measure Language Restricting Fracking), the Colorado Supreme Court ruled that two ballot initiatives permitting a state constitutional amendment allowing for more restrictive local control did not violate “the single subject rule.” Constitution, State of Colorado, Article V section 1(5.5) and section 1-40-106.5(1)(e), C.R.S. (2013).
July 10, 2014 3:29 PM | Posted by William Brady
In an “end run” effort around the state legislature, proponents of more restrictive oil and gas well setback requirements in Colorado are employing the initiative process to achieve more restrictive minimum setbacks than present state law permits. On June 30th, the Colorado Supreme Court ruled that three potential ballot initiatives permitting a state constitutional amendment requiring the more restrictive setbacks did not violate “the single subject rule.” Constitution, State of Colorado, Article V section 1(5.5) and section 1-40-106.5(1)(e), C.R.S. (2013).
July 8, 2014 3:08 PM | Posted by William Brady
According to a new study in the journal, Science, an increase in the number of earthquakes in central Oklahoma likely arises from the use of underground injection wells to dispose of treated wastewater from oil and gas fracking operations. The study, funded in part by the U.S. Geological Survey (“USGS”)and the National Science Foundation (“NSF”), focused on Oklahoma earthquakes and injection well practices. The research was led by Cornell University and included researchers from the University of Colorado, Boulder.
July 7, 2014 12:02 PM | Posted by Admin
Spencer Fane is proud to announce that Mike Hockley, a Partner in our Kansas City office, has been awarded the Overland Park Rotary’s highest honor, The Ben Craig Distinguished Service Award.
June 23, 2014 5:36 PM | Posted by James Price
Earlier today, June 23, 2014, the United States Supreme Court dealt a blow to EPA’s current approach to regulating greenhouse gas emissions (GHGs) through its air permitting program for new or expanding stationary sources. Utility Air Regulatory Group v. Environmental Protection Agency. No. 12-1146, ___ U.S. ___, June 23, 1014. The Court said it left intact EPA’s ability to regulate 83 percent of such GHG emissions, compared to the 86 percent EPA championed under its approach. Nevertheless, in its ruling the Court undercut key foundations of EPA’s current GHG regulatory approach. This ruling will require EPA to re-think many aspects of its approach to GHGs and will give opponents increased leverage in the upcoming discussions.
June 19, 2014 3:32 PM | Posted by William Brady
The Ventura County Star reported on June 17th that the California Department of  Conservation, Division of Oil, Gas and Geothermal Resources (the "Division”), has modified its proposed hydraulic fracturing regulations mandated by last year’s Senate Bill 4, requiring well operators to conduct real-time seismic monitoring. The modified regulations specify that they apply both to offshore and on shore oil drilling operations. Most drilling off the California coast, however, occurs in federal waters that are beyond the reach of state regulations.
June 18, 2014 9:31 AM | Posted by Andrew Brought
On June 17, 2014, EPA issued a proposed rule in the Federal Register, 79 Fed. Reg. 34480, proposing to amend the standards and practices for satisfying All Appropriate Inquiries (AAI) under CERCLA. In particular, EPA is proposing to remove references to the 2005 Phase I ESA Standard ASTM E1527-05 as satisfying AAI.
June 9, 2014 9:08 PM | Posted by Kate Whitby
Earlier today, June 9, 2014, the United States Supreme Court handed down its decision in CTS Corp. v. Waldburger, et al., slip op. No. 13–339 (U.S., 6-9-2014). Reversing the Fourth Circuit, the Supreme Court held that the Superfund law’s preemption of state statutes of limitation for personal injury or property damage claims does not apply to state statutes of repose. Not every state has such a statute on the books, but for those that do, this may provide an additional shield for defendants, and an additional hurdle for plaintiffs.
May 26, 2014 10:17 AM | Posted by Andrew Brought
EPA Region 2 and the U.S. Justice Department have resolved a stormwater enforcement case against CEMEX, associated with stormwater violations at 18 ready-mix concrete plants. The settlement will result in a civil penalty of $360,000, compliance upgrades of approximately $1.8 million, and a supplemental environmental project (SEP) involving the conservation of more than 400 acres of land valued at approximately $2.36 million.
May 22, 2014 8:49 AM | Posted by William Brady
On May 19th, EPA published an ANPRM in the Federal Register requiring the reporting and analyzing of chemicals used in hydraulic fracturing (“fracking”). EPA had delayed regulatory action for several years as environmental groups debated whether more transparent public disclosure was critical to ensure public safety, while industry representatives responded that regulation within their borders should be left to the states. The move largely comes as a result of insistence by Earthjustice and 114 other environmental groups, arising from a petition seeking greater federal involvement filed more than three years earlier. 
April 27, 2014 10:28 AM | Posted by Andrew Brought
The U.S. Justice Department, EPA, and Lowe’s Home Centers, LLC, have entered into a Consent Decree to resolve alleged violations of the EPA’s Lead Renovation, Repair, and Painting Program requirements, according to an April 24, 2014 notice in the Federal Register. The allegations, associated with violations at three home sites, require Lowe’s to pay a $500,000 civil penalty and implement a comprehensive compliance program.
April 25, 2014 8:48 AM | Posted by William Brady
In a first–of-its-kind-ruling, the LA Times reported yesterday that a six-person Texas jury awarded almost $3,000,000 against a natural gas company whose drilling, a ranching family contended, caused debilitating sickness, memory problems, killed pets and livestock, and forced them out of their home. Other landowners have sued over fracking claims and drilling, but reached settlements. However, this appears to be the first reported case which has proceeded to judgment.
April 10, 2014 12:56 PM | Posted by William Brady
Recently the Environmental Protection Agency (“EPA”) sent a “prerule” notice to the White House Office of Management and Budget (“OMB”) in an initial effort to determine what reporting might be required for chemicals used in hydraulic fracturing.  OMB’s Office of Information and Regulatory Affairs announced last month that it had received an “advance notice of proposed rulemaking” from EPA concerning the potential regulation of chemicals used in “fracking.” According to the Unified Agenda listing for this rulemaking (RIN: 2070-AJ93), this action was initiated in response to a petition filed under section 21 of the Toxic Substances Control Act (“TSCA”).    
April 8, 2014 12:27 PM | Posted by William Brady
On April 7th the Colorado Supreme Court, en banc, granted a petition for writ of certiorari filed by Antero Resources, agreeing to review the decision of the Colorado Court of Appeals which reversed the trial court’s grant of a “Lone Pine” order. No. 13 SC 576, Court of Appeals Case No. 12 CA 1251, Antero Resources Corporation, et al, Petitioners v. William G. Strudley, et al., Respondents. (Cert. granted, April 7th, 2014.) The Colorado court agreed to consider whether a district court is barred as a matter of law from entering a modified case management order requiring the plaintiffs to produce evidence essential to their claims after initial disclosures but before further discovery. The court also agreed to consider whether, if such modified case management orders are not prohibited as a matter of law, the district court in this case acted within its discretion in entering and enforcing such an order.
April 3, 2014 9:43 PM | Posted by Andrew Brought
Earlier today, April 3, 2014, the U.S. Department of Justice announced its largest ever environmental enforcement recovery case involving a $5.15 billion settlement, $4.4 billion of which will go to environmental cleanup and claims. The settlement, with Kerr-McGee Corporation and certain of its affiliates, along with their parent company Anadarko Petroleum, arose from the 2009 bankruptcy of Tronox, Inc., and a December 2013 ruling by the federal bankruptcy court finding a fraudulent transfer of assets to avoid paying environmental cleanup obligations.
March 23, 2014 2:47 PM | Posted by Andrew Brought
On March 6, 2014, EPA published its final rule for construction activities which will require the use of best management practices (BMPs) in lieu of numeric criteria for turbidity.
March 17, 2014 8:33 PM | Posted by Andrew Brought
On March 12, 2014, OSHA cited Schwan's Global Supply Chain Inc., for a number of alleged process safety management (PSM) violations at the company’s Atlanta facility concerning the storage and use of the industrial refrigerant anhydrous ammonia. OSHA is seeking more than $185,000 in penalties associated with the facility’s PSM and related OSHA violations.
March 8, 2014 3:34 PM | Posted by Andrew Brought
On March 5, 2014, EPA announced that it was approving SIP revisions to the Missouri SIP regarding start-up, shutdown, and malfunction (“SSM”) conditions, effective April 4, 2014.  79 Fed. Reg. 12394 (Mar. 5, 2014).
March 8, 2014 3:02 PM | Posted by Brian Peterson
Under the Fair Labor Standards Act (“FLSA”), employers are required to compensate employees for time spent changing clothes before the workday has started and after the workday has ended if doing so is integral and indispensable to the employees’ employment. But the FLSA also states that employers and unions may mutually agree that time spent changing clothes is not compensable. 29 U.S.C. § 203(o). These conflicting rules raise an important question. Can employers and unions mutually agree that employees will not be compensated for time spent putting on and taking off clothing that is necessary to perform their job? The Supreme Court of the United States recently announced that the answer to that question is yes. Unions and employers may mutually agree that employees will not be compensated for time spent changing clothes even if that clothing is necessary to safely perform their job. Sandifer v. United States Steel Corp., No. 12-417, 2014 WL 273241 (U.S. Jan. 27, 2014).
February 23, 2014 6:19 PM | Posted by Baerbel Schiller
EPA is attempting to expedite cleanup at thousands of hazardous waste sites across the United States by directing its corrective action program to focus on practical cleanup strategies rather than on process. This emphasis should yield faster and more efficient cleanups for industrial facilities in that program.