Maryland recently enacted legislation, Senate Bill 854, which amends Title 14 (Oil and Gas) of the Environment Article, Annotated Code of Maryland, and imposes reclamation and financial assurance requirements. The new legislation adds the requirement of site reclamation as a permit condition, and replaces the existing bonding requirement of $100,000 (single well) or $500,000 (blanket bond) with a minimum bond of $50,000 per well and not less than “the most recent closure cost estimate.” The legislation also requires a permittee to carry a minimum of $1 million in environmental liability insurance, in addition to the existing requirement to maintain general liability insurance. Under this legislation, the Maryland Department of the Environment may establish alternative means to demonstrate financial assurance. The new legislation does not apply to wells that existed on or before October 1, 2013, unless the well is substantially modified after that date.
Although Marcellus Shale is located in western Maryland, no Marcellus Shale well permits have been issued in Maryland. Earlier this year, efforts to ban hydraulic fracturing in Maryland failed in the legislature.
On May 20, 2013, the Town of Canandaigua, New York, adopted a local law to extend by nine months a moratorium on all natural gas exploration and extraction activities within the town. The new local law extends the initial 18-month moratorium passed by the Town Board, which was scheduled to expire on June 22, 2013, until March 22, 2014. The Town Board indicated that the nine-month extension will allow for the development of a local law to permanently ban high volume hydraulic fracturing activities within the town.
Managers of FracFocus, the national database containing operator-disclosed information on substances used in hydraulic fracturing fluids, expect to officially launch an updated version on June 1, 2013 to improve the site’s functionality. The new version, referred to as FracFocus 2.0, will reportedly contain several enhancements, including expanded search criteria, upgraded accessibility for state agencies and improved data quality verification. Upgrades to the database became necessary as states began requiring drillers to disclose through FracFocus the chemicals used in their fracking fluid. The enhancements may also address recent criticisms contained in a Harvard Law School study, which concluded that FracFocus contains several flaws that prevent the database from serving as an adequate regulatory compliance tool for disclosure mandates.
On May 16, 2013, the U.S. Department of Interior announced the release of its updated draft rules for hydraulic fracturing on federal lands. The 30-day deadline for submitting comments on the new proposal will run from the date of publication of the draft rules in the Federal Register. Additional information on the development of the updated rules is available here.
The federal Bureau of Land Management’s proposal for regulating hydraulic fracturing on federal lands, which was submitted to the White House Office of Management and Budget (OMB) for review in January 2013, is expected to be released soon in the form of a new draft proposal. During a teleconference on April 30, 2013, U.S. Department of Interior Secretary Sally Jewell remarked that the agency will provide a new opportunity for public comment rather than finalizing the existing draft proposal. The existing draft would address well integrity, wastewater management, and the disclosure of non-proprietary chemical information. Notably, the existing draft was sent to OMB before Sally Jewell, a former oil industry engineer who is familiar with fracking, was confirmed as Secretary of the Interior.
New York State officials said on May 1, 2013 that there is “no timetable on a decision” to lift the state moratorium on hydraulic fracturing. The Commissioner of the New York Department of Health said that new information obtained during a recent meeting with the U.S. Environmental Protection Agency will be included in the state’s public health review of hydraulic fracturing. A February 12, 2013 press release from the New York State Department of Environmental Conservation previously indicated that the public health review would be complete “in a few weeks.”
The Pennsylvania Department of Environmental Protection (DEP) has reportedly concluded that high levels of methane found in three private water wells in Franklin Forks (Susquehanna County) are not attributable to the nearby gas drilling operations of WPX Energy. DEP conducted an extensive 16-month investigation which included isotopic testing to determine the origin of methane found in the private water wells. Meanwhile, WPX voluntarily provided residents with replacement water supplies. Based on the agency’s own investigation, DEP determined that the elevated methane in the private water wells can be attributed to naturally-occurring methane in the area. The Franklin Forks case has drawn significant media attention partly because the town is located just 10 miles from the border of New York State, where the fracking debate continues at full steam.
Today the U.S. Environmental Protection Agency announced that it is extending by more than six months the deadline for the public to submit scientific data and literature to inform EPA’s study of the potential impacts of hydraulic fracturing on drinking water sources. The new deadline is November 15, 2013. Last week, the U.S. House Science, Space and Technology Committee convened a hearing to examine hydraulic fracturing research efforts by the Federal Government. Members of Congress reportedly criticized the slow pace at which EPA is approaching the study. EPA has stated in the past that it intends to issue draft results of the study by 2014.
On April 10, 2013, the Oneida County Board of Legislature reportedly approved a resolution that prohibits the extraction of shale gas on property owned by the county. Oneida County is located in central New York to the east of Syracuse. The resolution provides that the ban on shale gas extraction will remain in place until further study of the potential environmental and public health impacts of hydrofracking is completed.
The Independent Oil & Gas Association of New York reportedly filed a formal complaint with New York’s Joint Commission on Public Ethics on March 26, 2013, requesting an investigation into whether the group known as “Artists Against Fracking” is violating state lobbying laws. Artists Against Fracking consists of several high-profile celebrities, including Yoko Ono and her son Sean Lennon, who are outspoken opponents of hydraulic fracturing. The complaint asserts that neither Artists Against Fracking nor the individual members are registered as lobbyists in New York, and that the group has failed to disclose its spending in opposition to hydraulic fracturing. Reported statements offered by a former New York lobbying regulator, David Grandeau, suggest that advocates who spend more than $5,000 are required to register. A spokesman for Artists Against Fracking, David Fenton, said the group and its members do not have to register as lobbyists “when they use their own money to express an opinion.”
The State Journal reported earlier this week that New York Health Commissioner Nirav Shah plans to make a recommendation to Governor Andrew Cuomo “in weeks” on whether the state should approve hydraulic fracturing, despite reports that the Pennsylvania-based Geisinger Health System study is years away from being completed. Governor Cuomo responded by stating, “Nobody ever said that we were waiting for the studies to be finished … The Department of Health was going to be looking at those studies and see if there was anything constructive in those studies.” Cuomo also indicated that the recent legislative effort to pass a two-year moratorium extension will likely fail.
The New York State Assembly recently passed legislation to extend the moratorium on high-volume hydraulic fracturing until May 2015, but the measure faces an uncertain future in the state Senate. Supporters of the moratorium, which has been in place since 2008, claim that more time is needed to study the impacts of hydraulic fracturing.
New York missed the February 2013 deadline to release an environmental impact report, which would have provided guidelines for drilling regulations. However, New York Department of Environmental Conservation (DEC) Commissioner Joseph Martens reportedly stated that DEC would issue permits before drafting regulations if the New York State Department of Health deemed hydraulic fracturing to be safe.
This week the Joint Landowners Coalition of New York, Inc. (JLCNY) announced that they are seeking landowner plaintiffs for a lawsuit against New York State. JLCNY announced in early February its plan to sue the state. According to JLCNY, the lawsuit “will focus on claims where the failure to grant [high-volume hydraulic fracturing] permits has deprived landowners of all economically viable uses of their real property or interfered with reasonable investment-backed expectations.” The Associated Press recently reported on the fear shared by many New York landowners that a “golden opportunity” has passed due to the state rulemaking delay.
The New York State Department of Environmental Conservation (DEC) missed a Wednesday, February 27th deadline to issue a final version of its proposed regulations for high-volume hydraulic fracturing, or fracking. DEC Commissioner Joe Martens reportedly stated in early February that the regulations will not be completed until the New York State Department of Health (DOH) concludes its review of potential health impacts. Also in early February, DOH Commissioner Nirav Shah signaled that more time was needed to complete the health study. Missing the February 27th deadline means that DEC will need to entertain another round of public comments if the agency re-proposes the regulations. More than 200,000 public comments were reportedly submitted in response to DEC’s proposal published on December 12, 2012.
Youngstown city council approved a citizens group’s charter-amendment proposal to ban fracking in Youngstown and placed the proposal on the May 7 primary election ballot. Backed by over 3,800 signed petitions, the group, Frack Free Mahoning Valley, appears to have the required number of signatures, and therefore the Youngstown city council was required to approve the ordinance to be placed on the ballot. Other cities throughout Ohio, including Niles, Cincinnati, Yellow Springs and Mansfield already have voted to ban oil and gas extraction and/or injection wells in their communities. Regardless of the outcome of the May 7th vote, the city council and the Ohio Department of Natural Resources asserts that any such municipal ordinance is preempted by state law, and accordingly any such ordinance would likely be unenforceable.