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Reconsideration Motion Fails in Middlefield

by James A. Pardo and Brandon H. Barnes

Cooperstown Holstein’s attempt to reverse the trial court’s decision upholding the Town of Middlefield’s zoning ban on hydraulic fracturing has failed.  The Cooperstown Holstein case is now heading for appeal to New York’s Appellate Division, Third Department, where it likely will be consolidated with the Town of Dryden action that was appealed earlier this year.  For more information about these cases, please see our earlier article, “Recent Court Decisions May Affect Hydraulic Fracturing in New York and Ohio.”

Indiana Adopts “Emergency” Hydraulic Fracturing Fluid Disclosure Rule

by James A. Pardo and Brandon H. Barnes

As hydraulic fracturing (fracing) activity increases in Indiana, in the view of the state’s Department of Natural Resources, so too has the need for increased and updated regulations.   Last week, Indiana addressed this need in part by adopting new "emergency" regulations for fracing fluid disclosure.  These regulations took effect on July 1, 2012, and require the following information to be disclosed immediately after well completion:

  • Volume and source of base fluid (water or other substance); 
  • Type and amount of proppant (sand or other substance);
  • Trade name of each additive as identified on the material safety data sheets (MSDS);
  • Purpose of each additive;
  • MSDS for each additive;
  • Maximum volume of each additive, expressed as a percentage by mass or by volume;
  • Copies of documents like well service company job tickets that summarize the products used, pressure recording charts and logs or surveys calculating or mapping the fracture length and height.

Because these emergency regulations modify (rather than replace) Indiana’s existing disclosure rules for coal-bed methane operations, the existing provision protecting trade secrets remains intact under the new regulations.  The definition of “base fluid,” however, is broader than we have seen proposed in states like New York, so drillers probably will not be able to avoid fluid disclosure requirements by using liquid propane.  Many stakeholders with an interest in Indiana already should be familiar with the requirements of these new rules, as they closely track the disclosures already being voluntarily made on fracfocus.org.

New York Governor Floats Idea to Ban Hydraulic Fracturing in Majority of New York Counties

by James A. Pardo and Brandon H. Barnes

New York Governor Andrew Cuomo is reportedly considering a plan that would ban hydraulic fracturing  (fracing) in all of New York with the exception of five counties along the Pennsylvania border:  Broome, Chemung, Chenango, Steuben and Tioga.  Even within those five counties, however, fracing would be strictly limited under the Governor’s scheme.  Specifically, fracing permits would only be issued for wells located in communities that had not acted locally to prohibit the process – in other words, towns within the five counties still could exercise "home rule" to ban fracing by zoning amendment, or otherwise.  Cuomo also would ban fracing in Catskill Park, near any drinking water aquifer, in any nationally-designated historic districts and initially would limit it to the “deepest” areas of the Marcellus Shale.

Governor Cuomo has been under intense pressure from both sides in the fracing debate, and his idea – which an anonymous New York State Department of Environmental Conservation (NYSDEC) official deliberately leaked to the New York Times – was an attempt to take the temperature of both sides to a possible compromise.  It appears that Cuomo’s team sought to please environmentalists by banning fracing in most of the Empire State; assuage industry stakeholders by permitting fracing in certain counties with significant Marcellus plays and where public opinion appears to be leaning in favor of natural gas development; and build support with local officials from around the state by implicitly reaffirming "home rule" rights to ban fracing.  Initial reaction to this "trial balloon" idea was largely negative from the anti- fracing side – which has been trying to build momentum for a full statewide ban – but recently has drifted towards tepid support as fracing foes may see it as their best chance to stop fracing in most of New York.  Stakeholder response has been fairly neutral, with some companies expressing optimism because the plan allows fracing at all – an indicator of just how tight the debate has become in New York right now. 

Cuomo’s plan would give everything to nobody, and something to everybody – providing considerable political cover to both the Governor and NYSDEC.  For this reason alone, it is a plan that may have the best chance of passing through the regulatory, legislative, legal and public opinion gauntlet that currently exists for fracing in New York.

Hydraulic Fracturing Regulatory Updates in California and Pennsylvania

by James A. Pardo and Brandon H. Barnes

California Exploring Hydraulic Fracturing Regulation

California currently has no regulations specific to fracing but has well construction standards designed to keep natural gas and oil field fluids away from underground water sources.  Fracing has taken place in California, but applications for permits to frac are reviewed on a case-by-case basis by the Department of Environmental Conservation’s (DEC) Division of Oil, Gas and Geothermal Resources.  This is likely to change soon, however, as the DEC announced last week that it will propose new rules specifically for fracing by the end of summer 2012.  DEC will hold a series of workshops across the State to gather data and will commission a study on fracing’s effects in the state.  The agency also plans to review its existing policies for underground injection wells.  If prior regulatory efforts in California are any indication, the issue could progress quickly and fairly strict regulations could be proposed by August or September 2012.

Parallel to this recent activity by DEC, fracing legislation remains pending in Sacramento but there has been little movement on it.  Under this proposed legislation, oil companies would be required to post the names and concentrations of fracing chemicals on a national online registry within 60 days of stopping hydraulic fracturing and list the locations of any wells where fracing occurred and the dates when fracing was performed.

"Marcellus Compact" Introduced in Pennsylvania to Limit Hydraulic Fracturing

Earlier this year, the Pennsylvania Legislature passed Act 13, putting into place comprehensive new rules regulating almost every aspect of hydraulic fracturing.   Among the new rules in Act 13, and arguably the most controversial, is one that effectively preempts towns from putting in place well siting restrictions that are more stringent than those provided for in state rules.  The effect of this rule is that towns and municipalities are prevented from banning (or significantly restricting) fracing within their borders – something that more than 100 towns in neighboring New York have already done under "home rule" laws. Several towns recently filed a legal challenge to the constitutionality of this particular provision of Act 13, and in April they won a 120-day injunction to bring local rules into compliance with the new state rules.  The underlying constitutional claim remains pending in that case.

In the interim, several House Democrats recently unveiled what they call the "Marcellus Compact," – six separate pieces of legislation aimed at amending or overriding different Act 13 provisions.  One of those bills, sponsored by Democratic Whip Mike Hanna, would substitute a statewide severance tax for Act 13’s local impact fee and, more importantly, would restore local and municipal authority to ban or restrict hydraulic fracturing .  

The other bills introduced as part of the Marcellus Compact seek to (1) increase environmental setbacks and bonding requirements for wells; (2) establish a public online tracking system for fracing wastewater storage and disposal; (3) prohibit drilling in floodplains; (4) place a moratorium on discharging drilling wastewater [...]

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EPA Releases Final Permitting Guidance for Fracing with Diesel Fuel

by James A. Pardo and Brandon H. Barnes

Hydraulic fracturing (fracing) on private land has long been overseen by state regulators enforcing state-specific permitting, installation and other requirements.  The one exception is wells fractured with diesel fuel, which remain subject to U.S. Environmental Protection Agency (EPA) oversight under the Underground Injection Control (UIC) rules of the federal Safe Drinking Water Act (SDWA).  EPA typically has delegated its UIC oversight responsibility to state regulators and, for more than a year, has quietly been providing direction to these state regulators about what EPA wants to see as a condition to issuing drilling permits for wells that will be fractured with diesel.  That direction now has been reduced to a formal guidance document, which the agency issued for public review and comment on May 10, 2012.  While EPA’s proposed guidance has attracted little media attention (principally because it was issued on the same day that the Department of Interior proposed long-awaited regulations for fracing on federal lands), EPA’s latest initiative to regulate fracing is something that all stakeholders – whether they use diesel or not – need to be following closely for several reasons:  

1. EPA has proposed defining "diesel" by reference to six Chemical Abstracts Service Registry Numbers (68334-3-5; 68476-34-6; 68476-30-2; 68476-31-3; 8008-20-6; 68410-00-4), all of which essentially describe different types of diesel fuel, fuel oil or kerosene.  However, the EPA has also proposed as an alternative three broader definitions that focus on the chemical and physical characteristics of "diesel" and which, if adopted, could apply to substances like mineral oil.  These alternative definitions of "diesel" could bring many more fracing fluids, and many more fracing stakeholders, under UIC and EPA regulatory control. 

2.  EPA has proposed significant changes to existing federal permitting requirements relating to (a) permit duration and well closure; (b) Area of Review analyses; (c) well monitoring and integrity analyses; (d) water quality testing and monitoring, including baseline groundwater testing before drilling; and (e) other data and information requirements for obtaining a permit including, potentially, requiring applicants to conduct expensive seismic surveys.  While much of this information is already required by state regulatory authorities, it is clear that the permitting scheme being contemplated by EPA would be more costly, time-consuming and burdensome than the rules imposed by most states.

3. Finally, in a notable departure from its own prior pronouncements, at page 16 of its guidance, EPA suggests that fracing can open conduits in the subsurface that might allow fracing fluid to migrate upward into shallow drinking water supplies:  "Due to high injection pressures, there is potential to induce fractures that may serve as conduits for fluid migration …"  EPA’s statement is troubling because it suggests that the agency is stepping back from decades of research (including studies by USGS and EPA itself) which demonstrates that deep fracing poses no threat to shallow groundwater located above thousands of feet of bedrock and other sub-strata.  EPA’s retreat on this important point potentially opens up a new line of attack [...]

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Recent Developments in Federal and State Efforts to Regulate Hydraulic Fracturing

by James A. Pardo and Brandon H. Barnes

Obama Signs Executive Order Creating Hydraulic Fracturing Task Force

President Obama’s position that hydraulic fracturing must be conducted in a "safe and responsible" manner has been interpreted as suggesting the need for increased federal regulation of fracing. Indeed, various federal agencies have stepped forward with proposed regulations targeting air emissions, chemical disclosures, wastewater handling and other fracing-related issues.  Many natural gas stakeholders have expressed concern about this building wave of federal regulation, from different agencies and regulators, and the potential that this will result in inefficient, burdensome and even conflicting federal-versus-federal and federal-versus-state regulatory requirements. 

Perhaps in response to these concerns, on April 13, President Obama signed an executive order creating a task force of 13 federal agencies to "coordinate the efforts of Federal agencies responsible for overseeing the safe and responsible development of unconventional domestic natural gas resources and associated infrastructure and to help reduce our dependence on oil …." While some in the oil and gas industry have applauded the creation of this task force for its potential to streamline and coordinate federal activity on fracing, stakeholders will keep a close eye on the path taken by the Obama Administration.  Since 2005, the bulk of hydraulic fracturing oversight has come from state regulatory authorities – who typically are better positioned to deal with the unique regional and local issues often presented by oil and gas development. 

Requiring coordination among 13 different federal agencies may be a positive development. However, the precedent of federal regulation – and the possibility that coordination may lead to calls for more regulation in the future – may be one that stakeholders will be less than enthusiastic about, particularly after the Environmental Protection Agency wraps up its multi-year study of fracing’s impacts on groundwater in 2014.

Colorado Governor’s Task Force Releases Draft Report

A task force established by Colorado Governor John Hickenlooper recently released a draft report on strategies regarding state and local development and regulation of oil and gas activities.  The task force determined that "drawing bright lines between state and local jurisdictional authority was not realistic or productive," thus refusing to find that local authority is completely preempted by the Colorado Oil & Gas Act.  The group also concluded that no new laws are necessary at this time, but that consideration of Colorado’s oil and gas rules related to setbacks and air quality are topics for further discussion.  

The task force is comprised of representatives from counties, municipalities, the state, industry, civic organizations and the general public.  The Governor’s task force was established only a few days after two New York trial courts rejected separate legal challenges to local zoning amendments that banned hydraulic fracturing – handing victories to those who advocate for "local" (not state) control over whether fracing is allowed.  Fracing supporters in Colorado had hoped that the task force report would conclude (or recommend) that state regulation preempted local ordinances like those in New York.  Fracing opponents had hoped for [...]

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UK DECC Commissioned Report Recommends Hydraulic Fracturing in Britain

by Charlotte Doerr

The practice of fracing (referred to as “fracking” in the UK) in the United Kingdom has once again come under scrutiny.  The UK’s Department of Energy and Climate Change (DECC) commissioned an independent panel to examine a possible relationship between the practice and certain earthquakes which took place in April and May 2011.  The earthquakes occured near the site of the UK’s only fracing operation in Preese Hall, near Blackpool.  On April 17, 2012, the panel published its findings in a report

Fracing is the practice of pumping water, sand and chemicals into shale rock at a high pressure in order to extract reserves of natural gas stored within the shale rock, known as "shale gas."  The report considered the impact such a process may have on seismic activity.  The report concluded that the fracing operation (which was suspended following the earthquakes) had caused the earthquakes, thus providing some of the first evidence of this connection.  However, the report also found that the risk that fracing could cause an earthquake resulting in significant damage was "very low." 

The report recommended that fracing be allowed in the UK but, given that there is evidence of a connection between fracing and seismic activity, a number of safety provisions should be put in place to mitigate against seismic risks arising from fracing.  The safety provisions include:

  • conducting a detailed assessment of the relevant area prior to fracing taking place, including: performing baseline seismic monitoring so that seismic risk of the area can be determined; using both geological and geophysical data to determine the existence of any active faults in the area; and using ground motion prediction models to consider and assess the possible impact of any earthquakes; and
  • implementing a "traffic light" system with real-time monitoring of seismic activity during the fracking process.  A "red light" would be triggered by any seismic tremor meauring 0.5 local magnitude (a level lower than the size of the 2011 earthquakes) or higher.  The triggering of a red light would require the cessation of fracing and the taking of certain safety procedures including, allowing fluid to flow back to the surface.

In conjunction with the publishing of the panel’s report, the DECC is inviting public comment on the recommendations made by the report until May 25, 2012.

The DECC has stated that no decision will be made as to whether fracing operations for shale gas can be resumed until all comments in response to the report have been received and considered.

EPA Releases Final Fracturing Air Rule

by James A. Pardo and Brandon H. Barnes

The U.S. Environmental Protection Agency (EPA) released final regulations on April 17 to reduce certain emissions at hydraulically fractured wells by 95 percent.  The rule, a product of a February 2010 consent decree with WildEarth Guardians and the San Juan Citizens Alliance, adds New Source Performance Standards (NSPS) and amends existing National Emissions Standards for Hazardous Air Pollutants (NESHAPS) for the oil and gas industry.

NSPS Standards

The NSPS standards will reduce by 95 percent volatile organic compound (VOC) emissions during the completion phase of hydraulically fracturing a well.  In addition, although not a regulated substance under NSPS, the new rules have the effect of reducing fugitive methane emissions by 25 percent.  These VOC and methane emissions reductions will be attained by requiring that all newly fractured or refractured wells incorporate reduced emissions controls (RECs).  In total, EPA estimates that the rule will result in reductions of 11,000 tons of Hazardous Air Pollutants (HAPs), 190,000 tons of VOCs, and 1 million tons of methane, with a net benefit of $15 million as a result of the increased profit from captured methane sales. 

The final rule adopts several changes suggested during the public comment period, most important of which is the delayed deadline of  January 1, 2015 for requiring the use of RECs.  While REC technology currently exists, EPA recognized that the number of REC units required to meet the new regulations far exceeds those actually in existence today.  Until then, well operators or owners can achieve specified VOC reductions using flaring or other approved combustion methods. 

The final rule also modifies the definition of "well completions," limiting the REC requirement to that period when fracing operations end and flowback begins.  The requirement remains in effect until the well is either continuously flowing to the flow line or storage vessel for collection (in which case there should be no fugitive emissions) or shut in, whichever occurs first. 

In addition, EPA has exempted low-pressure wells from the REC requirement in response to comments that it is unfeasible to require RECs for low-pressure wells.  For low-pressure wells, as well as wildcat (or exploratory) and delineation wells, which are also exempted from the REC requirement, operators can continue to use flaring to achieve specified reductions.

EPA also has rewarded early adopters of REC technology, and encourages others to join early, by redefining actions that constitute "modifications" triggering NSPS requirements.  Some states require that any source subject to federal NSPS must get a state minor source air permit.  This new definition allows owners and operators of existing wells employing RECs to refracture without changing state permit status, thus avoiding delays and costs associated with the state permitting process.

Finally, but importantly, the rest of EPA’s new rules are not delayed, and take effect 60 days from publication in the Federal Register.

NESHAPS Standards

While EPA adopted many of the comments about the NSPS rules, stakeholders were less successful in obtaining changes to the proposed [...]

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Maryland: Split Decision on Two Hydraulic Fracturing Bills; Permanent Ban Proposal Next?

by James A. Pardo and Brandon H. Barnes

Western Maryland sits atop the Marcellus Shale and, since approximately 2008, several companies have leased lands in anticipation of conducting hydraulic fracturing (fracing) operations in the area.  Those operations have been on hold since March 2011 because of a de facto moratorium on fracing that Governor O’Malley and the Legislature put in place to give officials time to complete a two-year study of potential environmental and health impacts, and to propose rules for how fracing operations in the state should be conducted.  That study is due to be completed in 2013, but in the interim Maryland legislators have proposed almost 20 bills aimed at fracing activity in the State.  Stakeholders should be aware of recent actions taken on two of these legislative proposals.

First, $1 milion reportedly is required to finish the  administration’s study, and funding has not been provided for in this year’s state budget.  To close this funding gap, Governor O’Malley recently proposed legislation that would have imposed a one-year fee of $10.00 (Senate version) or $15.00 (House version) per acre on all lands already leased in western Maryland for potential fracing activity.  After the General Assembly rejected that fee legislation, Governor O’Malley announced that his administration will complete the study with funds from other (yet undisclosed) sources.  The issue for stakeholders is that, the lack of funds may delay the study’s completion — meaning that Maryland stakeholders may have to wait until 2014, or longer, to see if fracing will be allowed and under what rules.  

Indeed, whether fracing takes place at all may be the next battle in Maryland.  Representative Heather Mizeur (D-Montgomery County), who introduced the fee legislation in the Maryland House, has warned that she may now seek a permanent ban on fracing in light of industry’s opposition to the fee bill.  Fracing stakeholders with an existing (or potential) interest in Maryland may want to keep an eye on Annapolis in the coming months before committing resources to the Old Line State.

Second, on April 6, the Maryland General Assembly passed another of Rep. Mizeur’s legislative initiatives, a bill that creates a "presumptive impact area" around a well that has been hydraulically fractured.  Under this new rule, well operators will be presumed responsible for any contamination that occurs within 2,500 of a well for one year after the last operational activity on that well.  The operator will bear the burden of proving that any such contamination was not caused by its fracing operations.  If this burden cannot be met, the operator will be required to install a new water supply well (or retrofit the existing supply well) for anyone impacted by the contamination.  Burden-shifting rules exist in several states for contamination caused by leaking underground storage tanks, and legislation similar to Maryland’s also has been proposed in New York.  Because such rules make it easier for property owners to sue for alleged impacts to their private water supplies, they may encourage litigation – something [...]

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New York: Senate Bill Calls For Earthquake-Hydraulic Fracturing Study

by James A. Pardo and Brandon H. Barnes

The link between hydraulic fracturing activity and seismic activity has been the subject of much discussion of late, including on this blog (see "USGS Study Concludes Increased Seismicity May Be Attributable to Hydraulic Fracturing," posted on April 4, 2012).  Ohio has put in place new rules for deep-well injection disposal of used fracing water, in an attempt to avoid the small earthquakes that occurred in Youngstown last Fall.  New York is now weighing in on the issue.  State Senator Tony Avella recently introduced a bill  that would require a seismological impact study related to hydrofracking to be performed by a state university.  Sen. Avella’s bill would require that the study consider potential seismic effects both locally and state-wide; that it recommend activities or practices to mitigate future seismic activity; and that it provide a plan to monitor for seismic activity in the future. 

The bill proposes to fund the study through appropriations from the general budget, which was the death-knell for a similar piece of legislation introduced earlier this year that would have funded a state university study of fracing’s health effects.  Given New York’s tight fiscal environment, and the fact that federal studies of a possible fracing-earthquake link are already underway, we expect this bill to meet the same fate as the health study.  Sen. Avella, fully aware of the fate of the heath study bill (which he sponsored) likely is making a political statement with this latest legislation.  Nevertheless, stakeholders need to be aware that the earthquake-fracing link is one that is catching increased attention from federal and state authorities, and likely will remain an issue for some time.