Sand or Ceramic?

According to media reports, Consol Energy has recently been with the replacement of sand as a proppant in hydraulic fracturing by the use of ceramic materials.  Hydraulic fracturing requires a proppant to be mixed with water and then injected into the shale formation.  The result is that the proppant “props” open the cracks in the shale formation that are caused by the injection.  The natural gas is then able to flow to the surface.

Traditionally, sand has been used as the main proppant.  The Utica shale formation may be forcing a change.  The Utica formation has higher heat and pressure than the Marcellus shale, mainly due to the Utica being much deeper underground.  The high heat and pressure are causing the sand to sometimes be ineffective.  Companies have been forced to look for an alternative proppant, ceramic.  Not only do the ceramic particles withstand the pressure and heat better than the sand, but they are also perfectly round which enables the gas to move more freely in comparison to the irregularly shaped sand grains.

Ceramics also do not produce silica dust unlike sand proppant.  Silica dust can be harmful to workers and those who live near sand mining operations.  When silica is pulverized into dust and then inhaled it can cause lung cancer or silicosis, which is a scarring of the lungs.  OSHA regulates silica exposure limits and is in the process of updating its regulations on silica.  The Bureau of Air Quality within the Pennsylvania Department of Environmental Protection also monitors and regulates silica.  The oil and gas industry could find relief from these regulations if the use of ceramic materials in the proppant becomes more widespread. 

Written by - Stephen Kenney
Research Assistant
Center for Agriculture and Shale Law

University of Vermont Releases a Study Addressing the Risks of Wellbore Communication between New and Existing Wells.

On October 20, 2015, engineering researchers at the University of Vermont released a study entitled “Potential of hydraulically induced fractures to communicate with existing wellbores” published in the journal Water Resources Research. The study estimates the likelihood for the upward migration of fracturing fluid or gas if hydraulically fractured wells were to cut across unplugged or impaired existing wells in southern New York.

At the present time, there is no high-volume hydraulic fracturing taking place in New York state because of a state moratorium dated June 28, 2015.

To calculate the probability of intersections between unconventional and existing or abandoned wells, the researchers considered the depth of a new hydraulically fractured well, the vertical growth of induced fractures, and the depths and locations of existing nearby wells. They observed that “certain regions of New York underlain by the Marcellus Shale have probabilities on the order of 1-2% of encountering existing wells, while the vast majority of regions have much lower probabilities.”

The researchers, however, pointed out that it is unlikely for fracturing fluid or gas to find migration pathways through the rock because the distance between surface formations and shallow groundwater in southern New York is large.

The researchers concluded that “the probability of encountering a well is the first step in assessing the risk of a hydraulically fractured well communicating with shallow aquifers, and places an upper bound on that risk.” 

Written by Chloe Marie - Research Fellow

10/28/2015

House Members Urge the OBM to Finalize EPA Guidance

Henry Waxman and Diana DeGette, Democratic members of the House Committee on Energy and Commerce, sent the White House Office of Management and Budget (OMB) a letter urging the OMB to finalize the EPA's permitting guidance for oil and gas hydraulic fracturing activities using diesel fuel.  The letter referred to a May 2012 draft guidance that the EPA published seven years after the Safe Drinking Water Act (SDWA) became law and required special authorization for oil and gas producers to use diesel fuels in hydraulic fracturing operations.  Section 1421(d)(1) of the SDWA provides for an exemption from regulation for underground injections that relate to either the underground storage of natural gas or "the underground injection of fluids or propping agents (other than diesel fuels) pursuant to hydraulic fracturing operations related to oil, gas, or geothermal production activities." 42 U.S.C. § 300(h) (West). The letter alleges that oil and gas producers have taken advantage of the lack of clarity in the permitting regulations and have continued to use diesel in their hydraulic fracturing fluids.  Some producers use diesel fuels because compared to water, diesel has a lower freezing temperature and it more efficient at transporting and delivering propping agents into fractures. The EPA's draft guidance requires the permit application to list whether the diesel is the carrier fluid or an additive and describe the well construction and any potentially impacted areas.

The letter is available here: http://democrats.energycommerce.house.gov/sites/default/files/documents/Burwell-OMB-Hydraulic-Fracturing-2013-10-25.pdf

The draft EPA Guidance is available here: http://water.epa.gov/type/groundwater/uic/class2/hydraulicfracturing/upload/hfdieselfuelsguidance508.pdf

Written by: Tom Panighetti

October 30, 2013

District court dismisses claims that Act 13 violated a physician’s first and fourteenth amendment rights

On October 23, 2013, the United States District Court for the Middle District of Pennsylvania granted the Commonwealth’s motion to dismiss claims that Act 13 of 2013, referred to by the plaintiff as “the Medical Gag Act,” violated the plaintiff physician’s first and fourteenth amendment rights because the physician lacked standing to sue. Rodriguez v. Krancer, 2013 WL 5744866 (M.D. Pa Oct. 23, 2013). The Act contains language that limited the availability of trade secret protected hydraulic fracturing fluid composition to health professionals outside of a medical emergency (58 Pa.C.S. §3222.1(b)(11)). As a physician involved with patients whose “illness or medical condition results from contacts with environmental contaminants” the plaintiff argued that he could not provide the amount of information necessary to conform with the ethical obligation to respect patients’ right to self-decision. The court held that the physician lacked standing under Third Circuit precedent because the injury alleged was too conjectural. The court explained the plaintiff had not yet sustained injury because he had not experienced a situation where Act 13 prevented him from acquiring the information necessary to effectuate treatment. Further, any alleged civil penalties or economic injury to the plaintiff would only be incurred by future actions by the plaintiff. Therefore, the court granted the Commonwealth’s motion to dismiss.

Written by: Garrett Lent, Research Assistant

Agricultural Law Resource and Reference Center

October 2013

Study finds that Waste Water Treatment Plant fails to remove all toxins from flow-back water.

On October 3, 2013 Duke University published a study in Environmental Science & Technology that showed that the Josephine plant in Western Pennsylvania released low levels of toxins that mirror those found in flow-back water from hydraulically fractured Marcellus wells.

During a two year sampling period, the study found levels of concentrations of Chloride, Bromide, Calcium, Sodium, and Strontium higher than the concentrations measured upstream from the plant in a similar but diluted mixture compared to the composition of flow-back fluid recovered from Marcellus wells.

Although the plant was able to reduce Barium and Radium levels by over 90%, to levels that are acceptable and pose no immediate risk to people, the risk of bioaccumulation remains.

Fluid Recovery Services, the treatment plant owner, signed an agreement in May that bars the facility from accepting, treating or discharging waste water from unconventional drilling operations until the plant is upgraded to properly treat the flow-back water.

To view data that the study relies on click here. 

Written by Joseph Negaard - Research Assistant

The Agricultural Law Resource and Reference Center

@PSUAgLawCenter

October 4, 2013

Superior Court holds fresh water impoundment incident to oil and gas lease grant

On August 20, 2013, the Pennsylvania Superior Court found that surface storage of fresh water used for hydraulic fracturing was granted incident to an oil and gas lease because the hydraulic fracturing process is necessary to extract gas from the Marcellus shale and uses large amounts of fresh water. Humberston v. Chevron USA, 2013 WL 4429159 (Pa. Super. Aug. 20, 2013). In April 2006, the Humberston’s (landowners) entered into an oil and gas lease with the Keeton Group. Chevron holds current interest in the lease and hired Keystone as contractor to construct a freshwater impoundment that covered eleven acres of the lease. The “leasing clause” of the disputed lease granted well operators the “exclusive rights as may be necessary and convenient” to explore, develop, produce and market oil and gas extracted from the lease. The lease did not restrict the well operator to use current technology to exercise these rights.

At trial, the Fayette County Court of Common Pleas granted the well operators preliminary objections and dismissed the landowner’s claims on demurrer. The Superior Court upheld the lower court decision. It held that the well operator was granted the right to construct the fresh water impoundment facilities because the hydraulic fracturing process, which was “reasonably necessary” for the operator to exercise its exclusive right to develop the lease, required large amounts of fresh water. In its opinion, the Superior Court explained the lease contemplated the use of hydraulic fracturing because its language did not limit the well operator to extraction techniques used when the lease was executed. Rather, it was inclusive of any “methods and techniques” the well operator could use to effectuate its rights under the lease. Additionally, the use of parol evidence was unwarranted because the lease was unambiguous and contained an integration clause. Therefore the court agreed with the trial court’s ruling that well operator was granted the right to build a fresh water impoundment facility under the lease.

Written by: Garrett Lent, Research Assistant

Agricultural Law Resource and Reference Center

August 2013

House Subcommittee hosts hearing on EPA studies

On July 24, 2013 the House Committee on Science, Space and Technology’s Subcommittee on Energy and the Environment hosted a hearing to examine the EPA’s prior and on-going studies on the effects of hydraulic fracturing on the environment. Witnesses from the EPA, Utah Department of Natural Resources and Cornell University fielded questions about previous EPA studies conducted in Dimock, PA, and Pavillion, WY. Questions about the quantitative rigor of the studies were fielded by every witness. In particular, why the EPA would release draft reports suggesting that hydraulic fracturing was linked to groundwater contamination, but then withdraw the reports before peer review while “standing by their validity.” Further, committee members asked witnesses what the EPA was doing to ensure its national scale report on hydraulic fracturing, expected in 2016, would not follow this same pattern.

For detailed statements by witnesses, and a web archive of the hearing, visit the House Committee on Science’s website.

Written by: Garrett Lent, Research Assistant

Agricultural Law Resource and Reference Center

July 2013

Kansas hosts public hearing on proposed state hydraulic fracture chemical disclosure regulations

The Kansas Corporation Commission recently announced it would host a public hearing over proposed regulations for hydraulic fracturing chemical disclosure. The proposed regulations identify specific chemicals used in treatment fluids that would be required to be proposed, and established a method for them to be reported.  (K.A.R §82-3-1401). Further, the regulations would establish a method for the disclosure of chemicals classified as trade secrets. The procedure would limit the disclosure of protected chemicals to “emergency situations,” limit who could have access to the disclosed information, and provide a framework for re-establishing confidentiality after the limited disclosure. (K.A.R §82-3-1402). Additionally, the regulations provide framework for health professionals to access the chemical information in order to treat a specific individual. (K.A.R §82-3-1402).

For more information on the proposed regulations, visit the Kansas Corporation Commission web site.

Written by: Garrett Lent, Research Assistant

Agricultural Law Resource and Reference Center

July 2013

United States DOJ and XTO Energy enter into stipulated judgment for Clean Water Act violations

On July 18, 2013 the US Department of Justice and XTO Energy entered into a Consent Decree following allegations of Clean Water Act violations by XTO in Lycoming County. The complaint lodged by the DOJ on behalf of the Environmental Protection Agency alleged that XTO had “discharged pollutants” including flowback/produced fluids into streams near a well pad in Hughesville, PA. As part of the stipulated judgment, XTO agreed to:

1. A civil penalty of $100,000;
2. Various compliance requirements for the operation and maintenance of storage tanks used in its operations, and standard operating procedures for those tanks;
3. Various reporting requirements to demonstrate compliance;
4. And stipulated penalties for failure to report or comply with the duties laid out in the Decree.

The agreement between the United States and XTO does not conclude any enforcement measures Pennsylvania might take against XTO for violations of state regulations governing the management and disposal of gas well fluids. Nor does the consent decree affect any litigation that could be brought against XTO from landowners in the area affected by the alleged discharges.

For the full text of the Consent Decree, please visit the AgriculturalLaw Resource and Reference Center’s Marcellus Shale Resource Area.

Written by: Garrett Lent, Research Assistant

Agricultural Law Resource and Reference Center

July 2013

Study links fluid-injection sites to seismic activity

On July 12, 2013, Science Magazine published a study linking seismic activity in the Midwest to wastewater injection. The study found that injecting large amounts of wastewater not only increased the chance of locally occurring seismic activity, but also increased the likelihood of earthquakes triggered by large remote earthquakes. Previous studies demonstrated that wastewater injection, when not monitored correctly, could induce seismic activity because of increased pore pressures in fault lines. Now, however, the scientists involved believe regions that have undergone wastewater injection for an extended duration (decades) are at an increased risk of “triggered” seismic activity caused by large earthquakes potentially on the other side of the world. The remote triggering, the study says, was demonstrated by earthquakes that occurred in Snyder, TX, Prague, OK, and Trinidad, CO, which were all linked to larger earthquakes occurring outside their region by the study.

For more information on the study, visit sciencemag.org. 

Written by: Garrett Lent, Research Assistant

Agricultural Law Resource and Reference Center

July 2013

Illinois Governor Signs Fracking Regulations into Law

On June 17, 2013, Illinois Governor Pat Quinn, signed SB 1715 into law as the Hydraulic Fracturing Regulatory Act. Public Act 098-0022 details restrictions to immediately become effective on well operators utilizing the high volume hydraulic fracturing process in Illinois.

The Act states that drilling permits are to be individualized to single wells. For multiple wells on a single site, or parcel of land, every well needs to be individually applied for and permitted by the Illinois Department of Natural Resources. Additionally, the act establishes a multi-part permit application process that involves a public comment period, a hearing, and judicial review procedures for any final decision.

Notable requirements for well construction and operation include the use of cement bond logs to evaluate well casing integrity. The requirement is stricter than the proposed Federal lands regulations by the BLM, which requires only cement evaluation logs or an equivalent method to be used. Further, the storage of fracking fluids during all phases of well operation is restricted to above ground storage tanks. Lined pits and subsurface storage are not permitted.

For more information on the act, visit the Illinois General Assembly website.

Written by: Garrett Lent, Research Assistant

Agricultural Law Resource and Reference Center

June 2013

Illinois Legislature Passes Bill Regulating Hydraulic Fracturing

On May 31, the Illinois Legislature passed SB 1715, which would permit and regulate the hydraulic fracturing procedure utilized in shale oil and gas wells in the state. The bill would require well operators to disclose the chemicals used in fracking, monitor water sources before and after fracking, as well as assume liability for any water pollution from the procedure. The bill is awaiting approval by Gov. Pat Quinn, and will require the state's Department of Natural Resources to hire additional staff to implement and enforce the proposed regulations.

For more information on SB 1715 please visit the Illinois General Assembly site (scroll down to House Committee Amendment 1).

Written by: Garrett Lent, Research Assistant

Penn State Law, Agricultural Law Center

June 2013

EXCO Resources v. New Forestry, LLC - District Court holds that mineral rights may not include disposal wells

On July 25^th, the United States District Court for the Middle District of Pennsylvania granted Defendant New Forestry's motion for summary judgment and denied Plaintiff EXCO's motion for summary judgment. New Forestry is the owner of the surface estate of the property in question and EXCO has control of the subsurface.  The court reasoned that EXCO cannot use the well for disposal for two reasons. First, the original deed which severed the estate did not grant property rights beyond extracting resources. Second, EXCO did not properly renew the license.

Written by Joseph Negaard, Research Assistant
Penn State Law, Agricultural Law Center

July 30, 2012

Click here for the full EXCO Opinion.

Ban on Hydraulic Fracturing in Bucks, Montgomery, and Berks Counties.

On Friday, June 29^th, section 1607-E (1607-E) was added to the 2012 Pennsylvania Budget Bill (SB 1263). 1607-E created a temporary drilling moratorium in the portion of South Newark Basin which lies in southeastern Pennsylvania. The new section was added to the budget bill because, “the unique geological and geochemical characteristics of the South Newark Basin…have not been adequately evaluated.” As a result of 1607-E, the Department of Environmental Protection will be prohibited from issuing well permits for oil and gas operations until the Department of Conservation and Natural Resources has completed a study that will evaluate the practical implications and financial impacts for the area if drilling did occur. Pending further legislation, if the evaluation shows no significant harm or nothing is decided before the temporary drilling moratorium expires on January 1, 2018, the ban will be lifted.

Written by Joseph Negaard, Research Assistant
July 3, 2012

Click Here to Read SB 1263

BLM Extends the Comment Period on Disclosure of Hydraulic Fracturing 60 Days.

On June 22, 2012, the Bureau of Land Management (BLM) extended the comment period on disclosure of hydraulic fracturing by 60 days, from July 10, 2012 to September 10, 2012.

On May 11^th, the BLM proposed rules requiring companies to disclose fracking chemicals, guidelines for well casing, and handling of wastewater flowing back to the surface of well drilling operations on federal lands. According to the BLM these rules will ensure that oil and gas operations will follow a common sense industry standard.   

The BLM decided to extend the comment period to allow greater public participation in order to allow a more thorough analysis of the proposed changes. As of the decision to extend the comment period, the BLM had received 170 public comments.

Analysts say that the proposed rules are likely to add up to an additional 49-day delay in the permit application process. However they will also require drilling companies to increase groundwater protection measures, disclose more about chemicals used when fracking, and conduct additional tests before drilling and extracting gas.

Written by Joseph Negaard, Research Assistant
June 25, 2012  

Comments may be submitted here.

Multiple Federal Marcellus Shale cases decided in the month of May.

Federal Courts in Pennsylvania have decided six cases that relate to Marcellus Shale drilling during the month of May.

The U.S. District Court for the Middle District of Pennsylvania filed opinions in five cases this month.

1.      Berish v. Southwestern Energy Production Co.

On May 3^rd the court granted Plaintiffs’ motion for leave to file a Third Amended Complaint because the court was not convinced that the Plaintiffs' claims were clearly barred by Pennsylvania's two-year statute of limitations.

o   Click here to read the Berish Opinion

2.      Bidlack v. Chesapeake Appalachia, LLC, and

3.      Otis v. Chesapeake Appalachia, LLC

On May 11^th, in two nearly identical opinions, the court denied Plaintiffs' Motion for Relief from Pending Arbitration because Plaintiffs did not establish that the evidence was a “surprise” or “newly discovered evidence”.

o   Click here to read the Bidlack Opinion

o   Click here to read the Otis Opinion

4.      Shamblin v. Chesapeake Energy Corp.

On May 25^th the court granted Defendants’ motion to dismiss because Oklahoma law applies to Yost & Son, since it is an Oklahoma corporation.

o   Click here to read the Shamblin Opinion

5.      Boyer v. First American Title Insurance Co.

On May 31^st the court granted in part and denied in part Plaintiffs' motion for summary judgment, finding that the only dispute was the amount of damages due.

o   Click here to read the Boyer Opinion

In addition, a  U.S. magistrate judge in The District Court for the Western District of Pennsylvania filed an opinion in Mason v. Range Resources – Appalachia, LLC on May 9^th. The court recommended that the motion to dismiss Count I of the complaint be denied but the motion to strike Plaintiffs’ claims for attorney’s fees be granted.

o   Click here to read the Mason Opinion

Written by Joseph Negaard, Research Assistant
May 31, 2012

Vermont Becomes the First State to Ban Hydraulic Fracturing

The Vermont Legislature passed a hydraulic fracturing ban on May 4^th. The new law makes it illegal to frack or store wastewater from fracking. However, if the statelearns that hydraulic fracking is safe by January 15, 2015 this act can be repealed.

On May 16^th the bill was signed into law by the Governor of Vermont, making Vermont the first state to pass a ban on fracking.

Written by Joseph Negaard, Research Assistant
May 18, 2012

Click here to read Act

Marcellus Shale Coalition Announces Voluntary Disclosure of Frac Chemicals

The Marcellus Shale Coalition (MSC), one of the largest Marcellus Shale industry groups in Pennsylvania, has announced that its 250+ members will voluntarily disclose chemicals used in each of their natural gas well sites beginning January 1, 2012. The measure was adopted by members of MSC at their second annual members' meeting, held earlier this week. The well-by-well chemicals will be listed on a national chemical disclosure Web site: FracFocus.org. Currently, this type of disclosure goes above and beyond what is required by Pennsylvania state law. However, a recently introduced PA Senate bill, SB 1226, would amend the Pennsylvania Oil and Gas Act to legislatively mandate disclosure of fracking fluid components for new wells (see previous post regarding SB 1226 here). SB 1226 was referred to the Senate Committee on Environmental Resources & Energy on August 30, 2011.

Read the MSC Press Release here.

Written/Posted by Tanya J. Cramoy, Research Assistant

EPA Announces Schedule to Develop Natural Gas Exploration Wastewater Standards

The United States Environmental Protection Agency has announced a schedule for establishing national wastewater discharge standards for effluent originating from shale gas extraction. Some shale wastewater is reused, however, a portion must be transported to treatment plants for disposal (direct discharge into waterways, and other waters, of the United States is prohibited). Many of these treatment plants are not equipped to deal with the special effluent, leading to elevated levels of pollutants in surface waters. Therefore, the EPA will be developing standards for shale wastewater, based on "economically achievable technologies," that must be met prior to arrival at treatment facilities. National standards will also be developed for coalbed methane effluent. The EPA plans to seek public comment on a proposed rule for coalbed methane standards by 2013, shale gas standards by 2014.

This announcement comes as part of the Effluent Guidelines Program, section 304(m) of the Clean Water Act, which manages discharges from industrial sources in order to improve water quality.

Read the full EPA Press Release here.

Written/Posted by Tanya J. Cramoy, Research Assistant

Canadian Gas Producers Announce Fracking Guidelines

The Canadian Association of Petroleum Producers (CAPP) announced new guiding principles on September 8, 2011, intended to improve water management and fluid reporting practices for hydraulic-fracturing during shale gas development.  The principles apply to all of CAPP's members which, according to CAPP's website, includes small and large companies that explore for, develop and produce natural gas and crude oil throughout Canada. 

The stated purpose of the principles is to support a responsible approach to water management and requires the safeguarding of groundwater resources, the disclosure of water use and frack fluid additives, the development of environmentally safe fracking fluid and a call for technological collaboration.

Click here to read CAPP's Guiding Principles

Click here to read CAPP's press release

Written by Andy Schwabenbauer, Research Fellow
September 12, 2011