Fracking Insider Readers: We are pleased to bring you Volume 43 of our State Regulatory Roundup, including updates in California, New York, and Ohio. As we explained in earlier volumes, we designed the Roundup to provide quick overviews on state regulatory activity. If you have any questions on any of these summaries, please do not hesitate to ask. Continue Reading
Partner Wayne D’Angelo and associate Catherine Wilmarth authored the IPAA Access Magazine Summer 2015 article “Workplace Safety: OSHA Ramps Up Investigations and Enforcement in the Upstream Industry.” The article discusses the U.S. Occupational Health Administration’s increased focus on the upstream oil and gas industry as shown by the sector’s inclusion in the Severe Violator Enforcement Program. This issue is important because examination under the Program will likely lead to more inspections, more severe fines and settlement terms, and increased costs and delays.
The article can be found here.
On May 26, 2015, the U.S. Fish and Wildlife Service (“FWS”) published a notice of its intent to evaluate potential ways to regulate incidental takes of migratory birds under the Migratory Bird Treaty Act (“MBTA”). The Notice of Intent specifically named oil, gas, and wastewater disposal pits and methane and other gas burner pipes as potential sources of takes of migratory birds.
The MBTA represents the United States’ implementation of an international agreement that makes it unlawful to take or kill individuals of most bird species found in the United States unless authorized pursuant to statute. The word “take” is defined broadly to include pursuing, hunting, shooting, wounding, killing, capturing, trapping, collecting, or attempting to do any of the same. The MBTA is somewhat notorious for being strictly enforceable even in the absence of intent or negligence. An allowance for incidental take can allow a company to avoid strict liability for unintended take if they agree to put in place certain measures. For the oil and gas industry, FWS seems to be focused on measures that could mitigate alleged risks of becoming trapped in waste pits or settling ponds, or trapped or burned in flares or burner pipes.
FWS is considering a number of possible approaches to regulation. The Service may establish a general conditional authorization tied to specific hazards present in particular industry sectors, such as the alleged hazards in the oil and gas industry described above. These permits would integrate conservation measures and/or technologies to address these “hazards.” Regulators are also considering an individual incidental take permit program for projects or activities that do not fall under the general permits. Finally, the government is considering developing voluntary guidance.
It remains to be seen whether general incidental take authorization benefits or further burdens industry. Relief from the MBTA’s strict liability framework is certainly appropriate, but if the measures required to attach incidental take authorization are far more burdensome than current practices, then this program may amount to little more than an additional compliance cost for industry. FWS is currently taking comment on these proposed methods through July 27, 2015. Companies and other industry participants, particularly those currently utilizing migratory bird mitigation risk measures, should consider submitting commentary on these proposed rules to fully explain how they may negatively impact their business and the industry.
The Notice of Intent can be found here.
Fracking Insider Readers: We are pleased to bring you Volume 42 of our State Regulatory Roundup, including updates in Maryland, Texas, and Wyoming. As we explained in earlier volumes, we designed the Roundup to provide quick overviews on state regulatory activity. If you have any questions on any of these summaries, please do not hesitate to ask. Continue Reading
After five years, the U.S. Environmental Protection Agency announced that its long-awaited assessment of the potential impacts of hydraulic fracturing on drinking water resources identified no “widespread” or “systemic” impacts. The assessment (completed pursuant to Congressional mandate) follows water through all fracking phases—water acquisition, chemical mixing, well injection, collection of wastewater, and wastewater treatment and disposal. It compiles vast amounts of scientific information and data on the water impacts of fracking, considers information from stakeholders, and underwent peer review.
These findings confirm what many existing studies have already concluded—that hydraulic fracturing does not harm drinking water sources. EPA’s caveat that the impacts of hydraulic fracturing on drinking water are not “widespread” or “systemic” is seemingly unnecessary as there has never been a confirmed instance of groundwater contamination causes by hydraulic fracturing. Indeed, EPA’s portrayal of the comprehensive data compiled for the report is frustratingly pessimistic. The data show that over 60+ years, and nearly two million wells, hydraulic fracturing well stimulation has been conducted responsibly and without adversely impacting drinking water resources. Continue Reading
The Kelley Drye team was honored to host a number of veterans and others at our Washington, DC office on Friday to view the Arsenal of Democracy, an antique air armada flyover to mark the 70th anniversary of V-E Day and the end of World War II. We here at Fracking Insider are honored to work alongside a number of distinguished veterans, including our own fearless leader, John Wittenborn (USAF Ret.), and we are proud of the veterans in our families as well. In honor of this momentous event, the veterans in our lives, and all the men and women who served, we would like to re-post the following resources for helping veterans find jobs in the oil & gas industry. Giving a veteran a job is not a bad way to say thanks for their service.
Also, don’t forget to check the job boards for companies in the oil & gas industry, including those that made the 2015 list of the top 100 Military Friendly Employers®:
- Baker Hughes (ranked #3!)
- Fugro (USA)
- Devon Energy
- Patterson-UTI Drilling Company, LLC
- Berkshire Hathaway Energy
- BP America, Inc.
- Chesapeake Energy Corporation
- Sunoco Logistics
Thanks to all who have served!
(Photos by Randy King.)
A settlement recently reached between U.S. Steel Corp. and the widow of a Pennsylvania man allegedly exposed to benzene may fuel use of toxic tort lawsuits to sue over benzene exposures. The plaintiff argued that her husband, who had worked as a pressman with former Stanford Register Co., had been exposed on a daily basis to benzene over decades and consequently contracted acute myelogenous leukemia, which caused his death three years after his diagnosis. The terms of the settlement are confidential.
Prior to settlement, plaintiff’s counsel had submitted several days’ worth of testimony on the defendant’s knowledge and defendant’s lack of warnings of benzene’s potential to cause leukemia or other fatal blood disorders. Benzene is used in the manufacture of plastics, detergents, pesticides, and other chemicals. It is also a component of petroleum-derived fuels. Recently, OSHA identified benzene exposure as a significant risk to upstream oil and gas workers monitoring and testing flowback and other produced fluids.
The Obama Administration released the first installment of its Quadrennial Energy Review (“QER”), which focuses on energy transmission, storage, and distribution (“TS&D”). The QER was first launched in Obama’s Climate Action Plan in June 2013, and is designed to provide an overview of and guidance for federal energy policy. The QER takes the form of annual installments over the four-year period to create a “moving spotlight” on elements of the energy system. The Presidential Mandate instructed that the first such element be American infrastructure of transporting, transmitting, and delivering energy, given the importance of these segments for the continued growth of our energy industry. Continue Reading
Owners of land with substantial oil and gas resources have begun using the “takings” concept of property law to challenge local bans on fracking. “Takings claims,” which traditionally involve the seizure of some or all of private property without just compensation to the owner, are now being expanded by plaintiffs to encompass the idea that moratoria and bans on fracking deprive landowners of their mineral rights without compensating for the lost economic value of the oil and gas that could be produced. Continue Reading
Fracking Insider Readers: We are pleased to bring you Volume 41 of our State Regulatory Roundup, including updates in Maryland, North Carolina, and Ohio. As we explained in earlier volumes, we designed the Roundup to provide quick overviews on state regulatory activity. If you have any questions on any of these summaries, please do not hesitate to ask. Continue Reading