Fracking Insider

Fracking Insider

More on Methane: Adjacency, Consistency, and a Major Source of Confusion

Posted in Regulatory

On Tuesday, August 18, 2015, the U.S. Environmental Protection Agency (“EPA”) issued a package of four proposals to control methane emissions from the oil and gas industry. By far, EPA’s proposed New Source Performance Standards (“NSPS”) have garnered the most attention. And, in many respects, the attention is warranted. The NSPS would require the aggressive deployment of costly controls and monitoring requirements.

EPA’s response to the issue of defining “adjacency” for oil and gas sources, on the other hand, is receiving distinctly less attention in the press.  EPA has commenced two rulemakings in response to a recent D.C. Circuit decision: EPA has proposed to “clarify” how the Agency will evaluate the “sources” subject to Clean Air Act (“CAA”) permitting requirements and controls, and has proposed a revision to its Regional Consistency regulations for CAA implementation. Even though these two proposed rulemakings contain no direct control requirements, they arguably could have an even greater impact on the oil and gas industry than the NSPS. Continue Reading

EPA’s Estimate of the “Social Cost of Methane” Used to Justify New Source Performance Standards for the Oil and Natural Gas Industry

Posted in Economic, Regulatory

On Tuesday, August 18, 2015, the U.S. Environmental Protection Agency (“EPA”) issued proposed New Source Performance Standards (“NSPS”) under the Clean Air Act covering methane and volatile organic compound (“VOC”) emissions for certain equipment, processes, and activities in the oil and natural gas source category—including hydraulic fracturing and refractured oil wells that can contain natural gas as well as oil.

The proposed NSPS would require companies to take affirmative steps to find and repair potential leaks; capture more natural gas during well completion; and limit emissions from new and modified pneumatic pumps. EPA also proposed emissions from several types of equipment used at natural gas transmission compressor stations, including compressors and pneumatic controllers. EPA’s proposed standards would complement voluntary efforts like EPA’s Methane Challenge Program and the Natural Gas STAR Program. EPA asserts that the NSPS are based on practices and technology currently used by industry. Continue Reading

Hydraulic Fracturing: State Regulatory Roundup Vol. 44

Posted in Legislative, Litigation, Regulatory

Fracking Insider Readers: We are pleased to bring you Volume 44 of our State Regulatory Roundup, including updates in California, Louisiana, and Maryland. 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

Hydraulic Fracturing: State Regulatory Roundup Vol. 43

Posted in Litigation, Regulatory

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

OSHA Intensifies Its Focus On the Upstream Oil & Gas Industry

Posted in Key Documents, Regulatory

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.

Fish & Wildlife Service Issues Notice of Intent to Regulate Incidental Take of Migratory Birds

Posted in Regulatory

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.

Hydraulic Fracturing: State Regulatory Roundup Vol. 42

Posted in Legislative, Regulatory

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

EPA’s Long-Awaited Study Finds that Fracking Can be Conducted Safely, Responsibly, and Without Adversely Impacting Drinking Water

Posted in Regulatory

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

Thank You Veterans!

Posted in Key Documents

Flyover #1The 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.

  1. http://www.veteranstoenergy.org/
  2. http://military.getintoenergy.com/
  3. http://www.troopstoenergyjobs.com/

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®:

  1. Baker Hughes (ranked #3!)
  2. Fugro (USA)
  3. Devon Energy
  4. Patterson-UTI Drilling Company, LLC
  5. Halliburton
  6. Berkshire Hathaway Energy
  7. BP America, Inc.
  8. Chesapeake Energy Corporation
  9. Shell
  10. Sunoco Logistics

Thanks to all who have served!

(Photos by Randy King.)

Flyover #2

Pa. Toxic Tort Settlement Shows Potential Danger in Benzene Exposure Lawsuits

Posted in Litigation

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.

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