January 6, 2023

Federal Appeals Court Issues Decision Related to Calculation of Royalties on Natural Gas Liquids

Charleston, WV

Energy Alert

(By Tim Miller, Jennifer Hicks and Austin Rogers)

The Fourth Circuit Court of Appeals released its decision in Corder, et al. v. Antero Resources Corp., No. 21-1715 (4th Cir. January 5, 2023) (https://www.ca4.uscourts.gov/opinions/211715.P.pdf), a dispute over royalties owed for the sale of gas and natural gas liquids (“NGLs”). In its opinion, the Fourth Circuit made several important rulings regarding the ongoing application of West Virginia’s seminal oil and gas royalty case, Estate of Tawney v. Columbia Natural Resources, LLC, 219 W. Va. 266, 633 S.E.2d 22 (2006) (“Tawney”).

The Court first explained that Tawney applies to all leases that calculate royalties “at the well,” including both “market value” and “proceeds” leases. The Court noted that the West Virginia Supreme Court of Appeals’ recent decision in SWN Prod. Co. v. Kellam, 875 S.E.2d 216 (W. Va. 2022) (“Kellam”) did not support the lessee’s argument that Tawney is solely restricted to proceeds leases. Corder at 16.

The Court further rejected the lessee’s argument that even where a lease is silent as to the deduction of post-production costs, Tawney does not apply to costs incurred after oil or gas becomes marketable but before the point of sale. The Court analyzed whether Tawney or any other West Virginia authority supported the argument that once gas reaches the point where it is first marketable, the presumption that the lessee bears all post-production costs no longer applies, and deductions can be taken for costs incurred between the point where it is first marketable and the point of sale. …

January 6, 2023

EPA and the Corps Finalize New Definition of WOTUS … Again

Pittsburgh, PA

Environmental Alert

(By Lisa Bruderly)

The definition of “waters of the United States” (WOTUS) determines federal jurisdiction under the Clean Water Act (CWA). It affects U.S. Army Corps of Engineers (Corps) permitting for impacts from crossing, or otherwise disturbing, federally regulated streams and wetlands, as well as NPDES permitting, federal spill reporting and SPCC plans.

As one of their last actions for 2022, U. S. EPA and the Corps (the Agencies) released a pre-publication notice of a new definition of WOTUS on December 30, 2022. The new definition will become final 60 days after publication in the Federal Register. The definition was originally proposed in a December 7, 2021 rulemaking.

Although the Agencies have promoted this final rule as establishing a “durable definition” that will “reduce uncertainty” in identifying WOTUS, this definition does not appear to provide much-needed clarity. Rather, generally speaking, the new definition codifies the approach that the Agencies have already been informally utilizing, which entails relying on the definition of WOTUS from the late 1980s, as interpreted by subsequent U. S. Supreme Court decisions (e.g., Rapanos v. United States, 547 U.S. 715 (2006)). The Agencies reverted back to this definition in August of 2021, when the U.S. District Court for the District of Arizona vacated the definition of WOTUS promulgated by President Trump’s administration, referred to as the Navigable Waters Protection Rule.

The Agencies’ current approach to interpreting WOTUS relies heavily on both of the frequently discussed tests identified in the Rapanos decision. In Rapanos, Justice Antonin Scalia issued the plurality opinion, holding that WOTUS would include only “relatively permanent, standing or continuously flowing bodies of water” connected to traditional navigable waters, and to “wetlands with a continuous surface connection to such relatively permanent waters” (i.e., adjacent wetlands). …

January 5, 2023

DoD, GSA and NASA Propose Climate-Related Disclosures for Federal Suppliers

Pittsburgh, PA and Washington, DC

Updated Firm Alert

(by Justine Kasznica, Susanna Bagdasarova and Gina Falaschi)

On November 14, 2022, the Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA) published a proposed Federal Acquisition Regulation (FAR) rule that would require certain federal suppliers to annually disclose their greenhouse gas (GHG) emissions and climate-related financial risks, as well as set GHG emissions reduction targets, on an annual basis. 87 Fed. Reg. 68,312 (Nov. 14, 2022) (Proposed Rule). The Proposed Rule entitled the “Federal Supplier Climate Risks and Resilience Rule” implements President Biden’s Executive Order 14030, directing a number of federal agencies to take action to address climate-related risks and the Administration’s push toward net-zero emissions procurement by 2050.

The Proposed Rule would introduce a new FAR subpart 23.XX containing mandatory GHG emissions[1] disclosure and reporting requirements for major federal suppliers, which are divided into “significant” and “major” contractors for purposes of the applicable requirements. “Significant contractors,” defined as federal contractors receiving at least $7.5 million but less than $50 million in federal contract obligations in the prior fiscal year, must conduct a GHG inventory of their annual Scope 1[2] and Scope 2[3] emissions and report the total annual emissions in the System for Award Management (SAM). “Major contractors,” defined as federal contractors receiving more than $50 million in federal contract obligations in the prior fiscal year, are subject to the same requirement with respect to Scope 1 and Scope 2 emissions and must also conduct and report the results of a GHG inventory of their annual Scope 3[4] emissions. …

January 4, 2023

EPA Adopts Updated Phase I Environmental Site Assessment Standard that Addresses PFAS and Other Emerging Contaminants

Pittsburgh, PA

Environmental Alert

(by Matt Wood)

On December 15, 2022, the U.S. Environmental Protection Agency (EPA) published a final rule amending its All Appropriate Inquiries (AAI) Rule to incorporate ASTM International’s E1527-21 “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process” (Final Rule).1 The Final Rule – effective February 13, 2023 – allows parties conducting due diligence to utilize the E1527-21 standard to satisfy the AAI requirements under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), for the purpose of obtaining liability protections when acquiring potentially contaminated properties. Specifically, “bona fide prospective purchasers,” “contiguous property owners,” and “innocent landowners” can potentially obtain CERCLA liability protection by complying with the AAI Rule. More broadly, however, other regulating bodies, such as states, often require or recommend using the E1527 standard for evaluating potentially contaminated properties prior to purchase.

The Final Rule’s publication ends months of speculation and confusion about when and how EPA would address E1527-21 and its prior version, E1527-13. After ASTM issued E1527-21 in November 2021, EPA published an applicable direct final rule (and accompanying proposed rule, requesting comments on the direct final rule) in March 2022 incorporating E1527-21 into the AAI Rule, but also allowing parties to continue to use E1527-13 to satisfy AAI requirements. Many commenters opposed this approach, predicting confusion about which standard to use and pointing out that ASTM would eventually do away with E1527-13. In response to these comments, EPA withdrew the direct final rule in May 2022. The Final Rule addresses these concerns by removing the AAI Rule’s reference to the E1527-13 standard one year from the Final Rule’s publication in the Federal Register, i.e., December 15, 2023. Until then, any Phase I Environmental Site Assessment (ESA) conducted using E1527-13 will be considered compliant under the AAI Rule. …

January 3, 2023

Babst Calland Names Tiffany Arbaugh, Dane Fennell, Sean Keegan and Matthew Wood as Senior Counsel

Charleston, WV and Pittsburgh, PA

Babst Calland recently names Tiffany Arbaugh, Dane Fennell, Sean Keegan and Matthew Wood as Senior Counsel in the Firm.

Tiffany Arbaugh is a member of the Energy and Natural Resources and Litigation groups. Mrs. Arbaugh has more than 16 years of experience in the oil and gas industry. She focuses her practice on representing corporations in a variety of litigation matters with an emphasis on mineral title, real estate, trespass, fraud and title curative disputes. Mrs. Arbaugh’s practice also includes advising clients in customary business operations, litigation avoidance strategies and litigation preparedness.

Dane Fennell is a member of the Corporate and Commercial group of Babst Calland. Mr. Fennell’s practice focuses primarily on commercial real estate transactions, mergers and acquisitions, drafting commercial transaction agreements, and general corporate matters. Mr. Fennell’s background includes managing complex due diligence aspects of small and large acquisitions and contract management projects. For these projects, he works closely with Solvaire Technologies, L.P., an affiliate of Babst Calland, to achieve reliable and cost-effective results.

Sean Keegan is a member of the Litigation and Employment and Labor groups of Babst Calland. Mr. Keegan has a broad range of litigation experience in several practice areas including commercial, labor and employment, energy, and maritime. He has experience defending shareholder dispute claims, oil and gas lease disputes, insurance claims, and premises liability claims. Mr. Keegan has represented clients in both state and federal courts throughout the United States.

Matthew Wood is a member of the Environmental group. He assists clients on a variety of environmentally-related legal matters arising under major federal and state environmental and regulatory programs, with a focus on issues involving government inquiries, environmental investigations, remediation and concomitant activities under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), the Resource Conservation and Recovery Act (RCRA), and their state analogs. …

January 3, 2023

Babst Calland Names Shekhar and Snyder as Shareholders

Washington, DC and Pittsburgh, PA

Babst Calland recently named Varun Shekhar and Josh Snyder shareholders in the Firm.

Varun Shekhar is a member of the Environmental and Transportation Safety groups. Mr. Shekhar’s Environmental practice emphasizes federal, state and local regulatory matters arising under the Clean Air Act (CAA). He counsels Title V facilities across the country regarding compliance determination and assurance, CAA Section 114 information requests, and environmental audits. Mr. Shekhar draws upon his science and engineering background to help clients develop compliance solutions that are practical, technically and legally sound, and to advise entities in the course of enforcement actions by the U.S. Environmental Protection Agency, U.S. Department of Justice, and state agencies, as well as citizen suits within federal district and appellate courts. Mr. Shekhar also has substantial experience in assisting entities with continuous parametric and emissions monitoring systems, including coordinating with consultants and other technical advisors in identifying and addressing operational and data processing issues as they relate to compliance determination.

Joshua Snyder is a member of the Litigation and Energy and Natural Resources groups of Babst Calland.  Mr. Snyder has extensive experience representing oil and gas producers in a range of disputes.  His energy litigation experience includes defending oil and gas producers and contractors from personal injury, toxic tort, nuisance, and lease dispute claims.  Additionally, Mr. Snyder has represented clients in the manufacturing, finance, healthcare, and coal industries in a range of commercial disputes.  He has represented clients in federal and state courts, as well as before administrative bodies and arbitration panels.

December 30, 2022

Proposed climate-related disclosures for federal suppliers

Smart Business

(By Sue Ostrowski featuring Gina Falaschi and Susanna Bagdasarova)

Under a proposed new rule, many federal suppliers would be required to annually disclose their greenhouse gas (GHG) emissions and climate-related financial risks, in addition to setting GHG emissions reduction targets. The result could be a significant impact on a business’s reporting requirements.

“The proposed rule was published on Nov. 14, 2022, by the Department of Defense, General Services Administration and National Aeronautics and Space Administration,” says Susanna Bagdasarova, an associate at Babst Calland. “The Federal Supplier Climate Risks and Resilience Rule directs some federal suppliers to address climate-related risks as part of the Biden administration’s climate-change initiatives, including its goal of achieving a net-zero emissions economy by 2050.

“Businesses with government contracts should assess whether they need to comply,” says Gina Falaschi, an associate at Babst Calland. “Assessing potential impacts will help businesses be prepared for compliance deadlines when and if the rule is finalized.”

Companies can submit written comments on the proposed rule until Feb. 13, 2023, which will be reviewed prior to the federal agencies releasing the text of the final rule.

Smart Business spoke with Falaschi and Bagdasarova about how the Federal Supplier Climate Risks and Resilience Rule could impact federal suppliers.

What does the proposed rule require?

It imposes GHG emissions disclosure and reporting requirements on certain federal suppliers. “Significant contractors,” those receiving at least $7.5 million but less than $50 million in federal contract obligations during the previous fiscal year, would be required to report an annual inventory of their Scope 1 and Scope 2 emissions.

“Major contractors,” those receiving more than $50 million in federal contract obligations during the previous year, would be subject to the same requirements. …

December 22, 2022

Court: Pending Ordinance Doctrine Does Not Apply to Land Development Applications

Legal Intelligencer

(By Harley Stone and Anna Jewart)

These MPC mandated procedures require municipalities to obtain recommendations from their local planning bodies, submit proposed zoning ordinances and amendments to the relevant county planning agency, and to hold public hearings to solicit public comment.

Enacting and amending zoning regulations is a time-consuming matter. In fact, months often pass from the inception of an idea to the implementation of a zoning scheme and its actual effective date. This is due in large part to the stringent adoption requirements set forth by the Pennsylvania Municipalities Planning Code, 53 P.S. Section 10101 et seq. (MPC). These MPC mandated procedures require municipalities to obtain recommendations from their local planning bodies, submit proposed zoning ordinances and amendments to the relevant county planning agency, and to hold public hearings to solicit public comment.

Consequently, municipalities frequently must consider what to do with land use applications received during the period in which an ordinance is “pending,” but has not yet become effective. The “pending ordinance doctrine,” was created by the courts prior to adoption of the MPC. The doctrine was designed to protect municipalities from instances where an applicant proposes a use which conforms to the existing zoning scheme but would not be permitted under zoning changes being considered by the municipality and for which it has advertised its intent to hold public hearings. When the pending ordinance doctrine applies, a land use applicant may be required to conform to proposed zoning regulations which have not yet been adopted.

However, the doctrine does not always apply. In fact, the MPC includes certain statutory exceptions to the pending ordinance doctrine which are intended to protect landowners and applicants. …

December 15, 2022

Environmental Liability Transfers: Buyer and Seller Perspectives

Legal Intelligencer

(by Ben Clapp)

The risk transfer transaction structure is being increasingly employed in Pennsylvania and elsewhere as industrial site owners seek to clear long-tail environmental liabilities off their balance sheets.  Commonly known as an environmental liability transfer, these transactions generally involve the purchaser acquiring the real property and other assets associated with an industrial facility and assuming responsibility for all environmental liabilities associated with that property, including site closure, demolition, and environmental remediation obligations.  Often, the purchaser agrees to assume all such liabilities regardless of whether they arose prior to or after the purchaser’s acquisition of the facility.  The purchaser also commonly provides a release of liability and indemnity to the seller.  The costs associated with the purchaser assuming these obligations and liabilities are then deducted from the value of the assets being acquired to arrive at the transaction price. This price is frequently “upside-down,” with the seller paying the purchaser to acquire the property and assume its obligations.

While environmental liability transfers have been around for years, the transaction structure appears to have increased in popularity recently as power generators and other industrial companies are motivated to divest non-core assets and reduce environmental expenditures.  In the power sector in particular, a shift away from coal-fired electricity generation has left power producers holding old coal plants that are closed or rapidly nearing closure, and ancillary assets such as coal ash landfills, all of which come with hefty environmental carrying costs.  On the other hand, these properties are often well-suited for redevelopment, being industrially zoned, with access to electricity transmission lines and, often, shoreline infrastructure.  Companies specializing in acquiring properties through environmental liability transfers believe that they can address environmental issues more efficiently and cost-effectively than the previous owners, leaving them well-positioned to profit by redeveloping the property and either selling or operating it once environmental obligations have been satisfied. …

December 13, 2022

Cybersecurity – A Proactive Approach

TEQ Magazine

(By Justine Kasznica)

Be Prepared

According to the CISA and the FBI the first and most important step towards protection is preparation. Being prepared includes creating, maintaining, and exercising a cyber incident response plan, resilience plan, and continuity of operations plan; ensuring personnel are familiar with key steps that must be followed during a cyber breach incident; identifying a resilience plan that addresses how to operate if you lose access to-or control of- your company’s systems; and implementing back data back-up procedures. In addition, companies need to minimize gaps by ensuring all security protocols and protections happen around the clock, including holidays and weekends.

Enhance the Organization’s Cyber Posture

Enhancing an organization’s cyber posture is imperative to its safety from any form of cyberattack. An organization may ensure proper identity and success management, protective controls and architecture, and vulnerability and configuration, by requiring strong passwords and multi-factor authentication for all users. By monitoring and detecting abnormal activity like various unsuccessful logins or unlikely geographic access, a company can spot attempted breaches early enough to prevent any damage from occurring. It is also helpful to update software in a timely manner and to be sure to use industry recommended antivirus programs.

Stay Vigilant

Simply implementing initial data privacy, security, and response measures is not enough. Cybercriminals and their methods are constantly evolving. Taking a proactive approach to data privacy and security, and being willing to invest in same, is vital to ensuring that a company’s safeguards are adequate and up-to-date. As necessary, internal and external annual audits and/or reviews of a company’s systems and policies is crucial to its data security. …

December 12, 2022

Legislative & Regulatory Update

The Wildcatter

(By Nikolas Tysiak)

I hope everyone had a wonderful Thanksgiving holiday full of friends and family (and delicious, delicious turkey). I want to start out this update with something that should have been in the last update but was not.

Effective June 10, 2022, the West Virginia legislature modified Chapter 11A of the West Virginia Code to streamline the tax sale process by (1) eliminating the bifurcated distinction between “delinquent” and “non-entered” tax assessments, and (2) standardizing the statute of limitations for bringing procedural challenges to the tax sale process. Under the old laws, separate tax sale procedures existed for tax assessments that were “delinquent” (e.g., entered on the tax rolls but not timely paid) vs. “non-entered” (e.g., an assessment for a given real estate interest did not clearly exist on the appropriate county tax rolls). For delinquent assessments, the local sheriff’s tax office had original jurisdiction over the administration of sales and tax deeds; if a given assessment was not redeemed from delinquency or sold within certain time frames, such delinquent assessments were turned over to the State Auditor’s office for further administration and sale. Non-entered assessments existed exclusively under the original jurisdiction of the State Auditor’s office for administration and sale. In practice, the State Auditor’s office either explicitly or implicitly gave county assessors and sheriffs significant leeway in administering these taxation issues.

As landmen and lawyers practicing in West Virginia likely know, property interests affected by tax sales and tax deeds have proven challenging insofar as the ownership of executive rights and royalties pertaining to oil and gas. Recent caselaw brought a semblance of continuity to the effect of “non-standard” assessments affecting oil and gas interests, but in a way that was not anticipated by many title and real estate practitioners, which yielded varying and sometimes counter-intuitive results. …

December 12, 2022

EPA Doubles Down in Long-Awaited Supplemental Proposed Oil and Gas Methane Rule

PIOGA Press

(By Gary Steinbauer, Gina Falaschi and Christina Puhnaty)

On November 11, 2022, the U.S. Environmental Protection Agency (EPA) released a pre-publication version of its supplemental proposal for Standards of Performance for New, Reconstructed, and Modified Sources and Emissions Guidelines for Existing Sources: Oil and Natural Gas Sector Climate Review (Supplemental Proposal). The Supplemental Proposal has been highly anticipated since EPA published its initial proposal on November 15, 2021. EPA, Standards of Performance for New, Reconstructed, and Modified Sources and Emissions Guidelines for Existing Sources: Oil and Natural Gas Sector Climate Review, 86 Fed. Reg. 63110 (Nov. 15, 2021) (Initial Proposal).

EPA currently regulates emissions from oil and natural gas facilities under 40 C.F.R Part 60 Subparts OOOO[1] and OOOOa.[2] As part of the Initial and Supplemental Proposals, EPA would regulate oil and natural gas facilities constructed, modified, or reconstructed after November 15, 2021, under a new Subpart OOOOb. With the Supplemental Proposal, EPA has released proposed regulatory language for Subpart OOOOb. In addition, EPA released proposed regulatory text for emissions guidelines in a new Subpart OOOOc. These emissions guidelines are intended to inform states in the development, submittal, and implementation of state plans to establish standards of performance for greenhouse gases (in the form of limitations on methane) from sources existing on or before November 15, 2021. Under the Supplemental Proposal, states and tribes would be required to submit plans to EPA for review within 18 months of the publication of a final rule, with a compliance deadline for existing sources that is no later than 36 months after the deadline to submit the plan to EPA. The Supplemental Proposal also includes an updated proposed “Appendix K,” which is a protocol for determining leaks using optical gas imaging that EPA is now proposing to limit to natural gas processing plants. …

December 7, 2022

Proposed Changes to PFAS Reporting and Supplier Notifications under EPCRA

Environmental Alert

(Tim Bytner and Colleen Donofrio)

On December 5, 2022, the U.S. Environmental Protection Agency (EPA) published a proposed rule titled “Changes to Reporting Requirements for Per- and Polyfluoroalkyl Substances and to Supplier Notifications for Chemicals of Special Concern; Community Right-to-Know Toxic Chemical Release Reporting” (the “Proposal”) at 87 Fed. Reg. 74379-74387.  The Proposal would amend the Emergency Planning and Community Right-to-Know Act (EPCRA) reporting requirements in 40 C.F.R. 372 to: (i) add per- and polyfluoroalkyl substances (PFAS) subject to reporting under EPCRA to the list of Lower Thresholds for Chemicals of Special Concern (the “List”) in 40 C.F.R. 372.28; and (ii) eliminate the de minimis exemption for all chemicals on the List under the Supplier Notification Requirements in 40 C.F.R. 372.45.

PFAS Reporting

PFAS subject to EPCRA reporting requirements already have a lower reporting threshold (100 pounds).  By adding PFAS to the List, facilities are precluded from using the de minimis exemption at 40 C.F.R. 372.38(a), which would otherwise allow a facility to exclude PFAS found in chemical mixtures at concentrations less than one percent in determining whether the applicable reporting threshold has been met.  Also, inclusion on the List prevents facilities from using the more simplistic, streamlined Form A for reporting.  EPA believes these amendments will increase the data collected for PFAS and will result in a better understanding of PFAS waste management and release quantities.

Supplier Notifications

Generally, 40 C.F.R. 372.45 requires a chemical supplier to provide notification to certain facilities or persons (usually through Safety Data Sheets) of its products containing EPCRA 40 C.F.R. Part 372 toxic chemicals.  …

December 6, 2022

Discovery Misconduct May Cost Millions in Sanctions

Pretrial Practice & Discovery

American Bar Association Litigation Section

(By Jessica Barnes)

Numerous allegations of misconduct support a request for over $2 million in sanctions in an ongoing discovery dispute.

There is a line between zealous advocacy and bad-faith avoidance of discovery obligations. Attorneys in In re: Facebook Inc. Consumer Privacy User Profile Litigation, Case No. 18-md-02843-VC (N.D. Ca. 2022) may have crossed that line.

This matter began in March 2018 and involves the discovery that a third-party app developer harvested personal data from roughly 87 million Facebook users and sold it to Cambridge Analytica, a political consulting firm.

In September 2022, the Facebook-user plaintiffs explained to a California district judge why discovery sanctions were appropriate in this case. Specifically, the judge found “abominable” deposition misconduct and was outraged by Facebook’s years-long refusal to turn over certain user data and non-privileged internal communications.

The so-called “deposition misconduct” included Facebook’s witness refusing to answer basic questions and the defense attorney repeatedly telling the witness that she did not have to respond to the question.

With respect to the allegations of refusing to turn over certain information, Facebook attorneys argued that the orders of the judge who presided over discovery disputes were ambiguous. The current district judge did not buy that argument, accusing Facebook attorneys of pouncing on any “little ambiguity” and using it to obstruct and delay the production of obviously responsive materials.

In November 2022, the Facebook-user plaintiffs submitted their total monetary request for sanctions related to fees and costs as a result of discovery misconduct—which totaled over $2 million.

The Facebook-user plaintiffs explained in their briefing, “Plaintiffs believe that the general approach that Facebook . …

December 1, 2022

PADEP General Permit for Short Duration Processing and Beneficial Use of Oil and Gas Liquid Waste Available for Use

The Foundation Mineral and Energy Law Newsletter

Pennsylvania – Oil & Gas

(By Joseph Reinhart, Sean McGovern, Matthew Wood and Gina Falaschi)

On June 25, 2022, the Pennsylvania Department of Environmental Protection (PADEP) published General Permit WMGR163 (Permit) in the Pennsylvania Bulletin, 52 Pa. Bull. 3632 (June 25, 2022). PADEP issued the Permit following a 60-day comment period that closed on March 15, 2022. As issued, the Permit authorizes the short-term processing, transfer, and beneficial use of oil and gas liquid waste to hydraulically fracture or otherwise develop an oil or gas well under the authority of the Solid Waste Management Act, 35 Pa. Stat. §§ 6018.101– .1003, and the Municipal Waste Planning, Recycling and Waste Reduction Act, 53 Pa. Stat. §§ 4000.101–.1904. The Permit covers facilities that process and beneficially reuse oil and gas liquid waste for no more than 180 consecutive days at any one time.

Any company interested in using the Permit must register its authorized activities with PADEP. 25 Pa. Code § 287.643. In addition, PADEP is prohibited from requiring an applicant to obtain a determination of applicability from the agency prior to the issuance of the final permit for the land application of material. See id. § 287.641(c), (d). The Permit is applicable to the same oil and gas facilities eligible for coverage under General Permit WMGR123 (“Processing and Beneficial Use of Oil and Gas Liquid Waste”), but with fewer conditions. Key provisions in the Permit include:

  1. An authorized facility may process and transfer oil and gas liquid waste for no more than 180 consecutive days during the Permit’s two-year coverage period and a permittee can only operate for a maximum of one year during that period.

    2. …

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