As we previously reported in June, the Pennsylvania Democratic Party voted to pass a resolution supporting a statewide moratorium on hydraulic fracturing. We recently learned that on June 15, 2013, eighteen Democrats from Pennsylvania’s House of Representatives (including House Minority leader Frank Dermody) wrote a letter to the Pennsylvania Democratic Party expressing their concern regarding the Party’s vote to support a statewide moratorium, specifically stating that it was “short sighted and ignores the many positive impacts Pennsylvania is experiencing due to the growth of the natural gas industry in this state.” The letter goes on to say that the authors “believe that a moratorium on hydraulic fracturing is not in the best interest of the Commonwealth or the citizens of Pennsylvania.”
According to the Charleston Gazette, the Lewis Wetzel Wildlife Management Area in Wetzel County is now contains several natural gas drilling operations by various companies operating in the State of West Virginia. The Lewis Wetzel Wildlife Management area is approximately 13,590 acres; however, the West Virginia Department of Natural Resources only owns a fraction of the mineral rights underlying the preserve. Private owners of those mineral rights are now leasing to various companies who are, or will be, drilling wells in the area. While the natural gas is being extracted from beneath the preserve, operators will be working in conjunction with the WVDEP and other agencies to minimize the impact of any drilling operations on both the preserve and its human visitors.
New York’s moratorium on hydraulic fracturing has entered its sixth year. On July 23, 2008, former Governor David Paterson directed the New York State Department of Environmental Conservation (DEC) to conduct an environmental review of high-volume hydraulic fracturing. After taking office, Governor Andrew Cuomo continued the order, and the DEC has not yet finalized its environmental review. Gov. Cuomo said that he will not make a decision on lifting the moratorium until the New York Commissioner of Health performs a public health review of the DEC’s work. No timetable for the completion of the public health review has been announced.
The Department of Energy’s National Energy Technology Laboratory released a statement at the end of last week regarding its preliminary findings in its study to monitor for impacts of hydraulic fracturing on groundwater, noting that “nothing of concern has been found thus far.” Additionally, the NETL’s reported discussions with the AP that same day confirmed that the NETL’s preliminary findings have shown that there is “no evidence that chemicals from the natural gas drilling process moved up to contaminate drinking water aquifers at a western Pennsylvania drilling site.” According to the AP’s report, this is the first time that an operator permitted government scientists to inject tracers into the hydraulic fracturing fluid to track the distribution of the fluid underground. The study is expected to be completed by the NETL by the end of the year, at which time a final report will be released.
West Virginia natural gas operators saw a shift in the permitting and regulation process as new rules governing horizontal drilling went into effect on July 1, 2013. Authorized by the West Virginia Legislature with its passage of the Horizontal Well Act in 2011, the West Virginia Department of Environmental Protection submitted the new regulations to the Legislature for approval after a year of work. The result is a comprehensive and somewhat technical set of regulations that will govern horizontal drilling in West Virginia. While some of the regulations merely recite requirements that are in the Horizontal Well Act, below are some of the new and noteworthy regulations in the newly-effective set:
- Provides for an expedited review process for regulatory approval of replacement bore holes (35-8-5.l.1)
- Supplemental requirements for well site safety plans (35-8-15)
- Increased recordkeeping requirements for water used in the hydraulic fracking process (35-8-9.1.b.3) and
- Additional certifications may be required on plats and plans submitted for permitting review.
A copy of the new horizontal drilling regulations can be found here.
A bill was recently introduced in the Pennsylvania House of Representatives that would require use of closed containment or loop systems for all non-freshwater associated with drilling and hydraulic fracturing. Introduced by Representative Karen Boback, who represents parts of Luzerne, Wyoming, and Columbia counties, House Bill 1546 would prohibit the use of open impoundments to store “any produced liquids, treated water, hydraulic fracturing fluid or industrial wastes,” and would mandate the use of “closed containment system” or “closed loop system,” as defined in the bill. “Closed containment system” is defined as “closed noncorrosive tanks or containers” for storing the fluids described above, while “closed loop system” means “a series of interconnected, enclosed noncorrosive storage tanks or containers” that can help maximize the amount of drilling fluid that can be reused and recycled in the hydraulic fracturing process. Rep. Boback acknowledged that the bill is aimed at a minority of operators who still use open impoundments to store the described fluids.
On Thursday, U.S. EPA announced that the State of Wyoming will lead further investigation of drinking water quality in Pavillion, Wyoming. In 2009, EPA began working with the state and local tribes to investigate water quality in the Pavillion area in response to citizen reports of contaminated well water. Sampling results have shown constituents of concern in the domestic water wells, but a source of the constituents has yet to be determined. EPA released a draft report in 2011 indicating that the groundwater contains constituents likely associated with nearby gas production and hydraulic fracturing activity. The agency no longer intends to finalize or rely on the draft report, as indicated in the following statement from EPA:
“While EPA stands behind its work and data, the agency recognizes the State of Wyoming’s commitment for further investigation and efforts to provide clean water and does not plan to finalize or seek peer review of its draft Pavillion groundwater report released in December, 2011. Nor does the agency plan to rely upon the conclusions in the draft report.”
EPA will continue to provide support for the investigation led by Wyoming officials. EPA plans to now focus attention on its major hydraulic fracturing study, for which the agency expects to issue a draft report in late 2014.
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.
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.
The West Virginia legislature has passed Senate Bill 243, the legislation which authorizes the Department of Environmental Protection, Office of Oil and Gas (OOG), to promulgate the pending Horizontal Well Act regulations. According to the West Virginia Legislature’s bill tracking tool, Senate Bill 243 currently awaits Governor Tomblin’s signature. Notably, this bill includes a measure that would allow an operator to designate certain information regarding hydraulic fracturing chemicals as trade secret when filling out a well completion report. The trade secret measure compels the operator to share the information designated as trade secret with health professionals or the OOG in the event of a medical emergency or an investigation by the OOG.
The House Natural Resources Committee recently heard testimony from representatives of Ohio, Texas and Utah on the necessity of federal regulation of hydraulic fracturing. Richard Simmons, Chief of the Ohio Department of Natural Resources, testified that Ohio is capable of regulating oil and gas production within its boundaries, and has been doing so effectively. He cited two recent examples of the department’s rapid response to illegal dumping and to earthquakes related to brine injection wells. Simmons believes that state regulation is more effective, efficient and economical than federal regulation. Representatives of various interest groups also testified in favor of strict federal regulation.
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 WVU College of Law will tackle hydraulic fracturing issues in the upcoming National Energy & Sustainability Moot Court Competition. On March 14-16, 2013, moot court teams will gather in Morgantown to address issues involving alleged violations of the Clean Air Act and Migratory Bird Treaty by a “mid-Atlantic national gas company” involved in hydraulic fracturing. The sample case was designed to bringpractical compliance and enforcement issues into the classroom and to raise awareness of vital business and environmental issues affecting West Virginia and other gas-rich states. The Competition includes teams from American University, Duquesne, Florida State, Colorado, Maryland, Utah and Wyoming, West Virginia, and others, at WVU’s Erickson Alumni Center.
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.
Unimin Corporation has announced a new facility for distributing proppants used in hydraulic fracturing. The facility will be located in Navarre, Ohio, about 10 miles west of Canton. Strategically placed to be accessible by rail and highway, the facility will be open 24 hours daily, 365 days a year. The new facility joins six other Unimin facilities distributing proppants in the northern Appalachian basin.