09 February 2016

Sidley Shale and Hydraulic Fracturing Report

Vol. 5, No. 6

Topics discussed in this week’s Report include:

  • Science Advisory Board (SAB) panel continues to debate Environmental Protection Agency’s (EPA) assessment of hydraulic fracturing.
  • Pennsylvania Court grants plaintiffs access to certain emissions data in hydraulic fracturing lawsuit.
  • Pennsylvania adopts new oil and gas regulations subject to final review by state regulatory review board.

Federal

Science Advisory Board (SAB) panel continues to debate Environmental Protection Agency’s (EPA) assessment of hydraulic fracturing. In a February 1-2 teleconference, as summarized in the agenda, a panel of the EPA SAB continued to review and discuss its draft response to EPA’s June 2015 draft assessment of hydraulic fracturing. In particular, the SAB panel addressed issues related to its earlier draft comments on EPA’s proposed conclusion that there were no “widespread, systematic” impacts on drinking water from hydraulic fracturing. While some SAB panelists continued to support their earlier comments, others were more supportive of EPA, noting that while impacts may have occurred in some instances, the effects were neither widespread nor systematic across the entire industry. Much of the debate focused on the meaning of the terms “widespread” and “systematic.” The SAB panel also considered possible data gaps in EPA’s assessment and methods that the agency could use to obtain additional data.

States

Pennsylvania Court grants plaintiffs access to certain emissions data in hydraulic fracturing lawsuit. A Superior Court in Pennsylvania recently authorized plaintiffs to access emissions testing data in a hydraulic fracturing lawsuit after concluding that certain of the data were not privileged. In the lawsuit, the plaintiffs alleged that hydraulic fracturing operations caused personal injury and property damages and sought testing records from URS Corp., a testing company retained by the well owner-operator. The court determined that at least some of the information possessed by URS was obtained in its capacity as a consultant. As a result, the court held that information that was not collected in anticipation of litigation was not protected from disclosure. However, because URS was simultaneously retained as an expert for litigation, the court also ruled that the trial judge could exclude information on a case-by-case basis if it were shown that the requested information was collected in anticipation of litigation.

Pennsylvania adopts new oil and gas regulations subject to final review by state regulatory review board. After a nearly five-year process, the Pennsylvania Environmental Quality Board approved new regulations for oil and gas wells. The regulations were subject to an extensive public process, during which more than 28,000 comments were submitted by interested stakeholders. Among other things, the regulations will significantly limit the use of in-ground impoundments for waste storage, increase reporting requirements for oil and gas production and waste generation and require permit applicants to identify existing and abandoned wells and public resources located near proposed well sites. The regulations will now be submitted to the Pennsylvania Independent Regulatory Review Commission (IRCC), an independent state agency that reviews regulations for consistency with other laws and statutes. A final decision by the IRCC could occur this spring.

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