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Waters of the United States (WOTUS) Revised Definition Significantly Reduces Waters Subject to Federal Jurisdiction

On January 23, 2020, the Environmental Protection Agency (EPA) and the Department of the Army (Corps) finalized anticipated revisions to the Navigable Waters Protection Rule defining the scope of waters subject to federal regulation under the Clean Water Act.  The revisions follow the dictates of President Trump’s February 28, 2017 Executive Order 13778: “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule.”

Proposal to Repeal Colorado’s Taxpayer Bill of Rights (“TABOR”) Heading to the Ballot in November 2020

The Second Trip to the Colorado Supreme Court

No other state has a provision in its constitution like the Colorado Taxpayer Bill of Rights (“TABOR”).  The TABOR measure amended Article X of the state’s constitution and restricts tax revenues and spending at all levels of government.  The provision prevents tax increases without voter approval and prohibits state and local government from spending revenues collected under existing tax rates without voter approval if revenues grow faster that the rate of inflation and population growth.  Tax revenues in excess of the TABOR limit must be refunded to taxpayers.  The impact of the provision has been significant.  Since 1992, tax authorities have refunded over $2 billion to the taxpayers.

Chemical Safety Board Proposes 4-Hour Release Reporting Rule

On December 11, the U.S. Chemical Safety and Hazard Investigation Board (CSB) proposed a rule requiring that companies swiftly provide the CSB notice of accidental chemical releases sufficient to trigger a CSB investigation, to help the CSB make deployment decisions and to more rapidly respond to release incidents.

New Ozone Classification Will Impact Permitting Along The Front Range in Colorado

New “Serious” Classification for Nonattainment For Ozone

On December 16, 2019, the U.S. Environmental Protection Agency (EPA) announced a final rule to reclassify the Denver Metro/North Front Range ozone nonattainment area from Moderate to Serious nonattainment under the Clean Air Act.  The area covered embraces all of Adams, Arapahoe, Boulder, Denver, Douglas, and Jefferson counties as well as the southern portions of Larimer and Weld counties.

Environmental Audit Privilege and Immunity Now Available to Oklahoma Facilities

The Oklahoma Environmental, Health and Safety Audit Privilege Act is now effective as of November 1, 2019, and available to manufacturers and industrial businesses  in Oklahoma that undertake voluntary environmental audits, such as those companies involved in aircraft manufacturing, chemicals, oil and gas processing, plastics, cement, food and meat processing, and paper products .  Oklahoma is the 30th state, by EPA’s count, to enact an audit program, providing privilege and enforcement benefits to parties that voluntarily undertake an environmental audit, disclose the findings and conduct corrective actions.

OSHA Issues Enforcement Directives Targeting a Variety of Industry and Manufacturers

Effective October 1, 2019, Region VII OSHA (Kansas, Missouri, Nebraska, and Iowa) announced a combination of Regional Emphasis Programs, along with state-led local emphasis programs.

Colorado Oil and Gas Health Risk Study

Short-term risks of exposure can include headaches, dizziness, and respiratory, skin and eye irritation

Building on an earlier assessment released in February 2017, the Colorado Department of Public Health and Environmental released a state-funded study on October 17, 2019 titled:  “Human Health Risk Assessment for Oil & Gas Operations in Colorado.”  A peer-reviewed article summarizing the study was published in the Journal of the Air and Waste Management Association.

Has Proposition 65 Gone Too Far? Warning Requirements for Food Products Challenged

Companies nationwide that sell foods containing the chemical acrylamide to California consumers may find their regulatory burden lightened in the future.  On October 7, 2019, the California Chamber of Commerce (CalChamber) filed suit against the California Attorney General in the Eastern District of California to prevent the state from enforcing Proposition 65 warning requirements for foods containing acrylamide.  CalChamber’s Complaint asks the court to declare that the Proposition 65 requirement of carcinogen warnings for foods containing acrylamide constitutes false and misleading compelled speech in violation of the First Amendment, arguing that acrylamide in food has not been shown to be a human carcinogen.  The Complaint also seeks an order prohibiting the State of California and private citizen enforcers from enforcing Proposition 65 warning requirements for foods containing acrylamide.

Citizens Sue to Prevent Colorado Oil and Gas Commission From Issuing Oil and Gas Permits

A Court Order Halting Agency Actions Would Prevent Any Oil and Gas Permitting for Months While the Commission Promulgates Revised Regulations  

 On October 8, 2019, a citizens group based in Broomfield, Colorado, filed suit in Denver District Court requesting a Court order for an immediate stay of all actions by the Colorado Oil and Gas Conservation Commission (“COGCC”) involving “permitting of any drilling, pooling, and spacing units until the COGCC rulemaking is completed.”

OSHA Announces Change to Process of Prioritizing and Evaluating Inspections

On October 1, 2019, OSHA implemented a new OSHA Weighting System to guide its prioritization and evaluation of workplace safety inspections for fiscal year 2020. Under OSHA’s outgoing enforcement weighting system, initiated in fiscal year 2015, OSHA heavily based its prioritization and evaluation of inspections on the time taken to complete an inspection.

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