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.
California – The State Water Resources Control Board has adopted “model criteria” for monitoring groundwater in areas where hydraulic fracturing is occurring. The criteria impose requirements on the use of groundwater in well stimulation activities, include monitoring and sampling methods, identify chemicals for sampling, and stipulate the frequency at which those chemicals should be analyzed. The Board asserted that the criteria will foster greater transparency and increase the public’s access to information about the condition of groundwater near well stimulation activities. Felicia Marcus, the chairwoman of the Board, asserted that the goal of the criteria is to identify and trace the causes of groundwater contamination and mandate that those responsible engage in mitigation activities. Development of the criteria was prompted by the passage of S.B. 4 in 2013, which directed the Board to develop model criteria requiring oil and gas producers to submit groundwater monitoring plans for approval before hydraulic fracturing would be allowed to begin.
New York – A group of southern tier landowners has applied for a permit to drill for natural gas utilizing a method they maintain would not be subject to the state’s hydraulic fracturing ban. The Snyder Farm Group and Tioga Energy Partners LLC submitted an application on July 8, requesting a permit to use liquefied petroleum gas (LPG) to inject gelled propane and sand on 53 acres of land in Tioga County. Although the state banned hydraulic fracturing in June, the applicants contend that the ban does not cover the use of LPG to produce natural gas. The application was made using a Generic Environmental Impact Statement (GEIS) for oil and gas drilling, issued by the state Department of Environmental Conservation (DEC) in 1992, rather than the recently issued environmental impact statement that effectively banned hydraulic fracturing. The Snyder Farm Group asserted that using gelled petroleum and sand is safer than traditional hydraulic fracturing because it uses no water, flaring is minimal, and the propane is inert.
Ohio – A class action suit by Broadview Heights residents claiming the right to prohibit hydraulic fracturing in their neighborhood has been dismissed. (See our previous coverage here.) The plaintiffs argued that Ohio Rev. Code § 1509, which grants sole and exclusive authority to permit and regulate oil and gas wells to the state Department of Natural Resources, violates their constitutional right to local self-governance. However, Cuyahoga County Common Pleas Judge Timothy McCormick ruled that municipalities’ home rule does not trump state law regulating oil and gas drilling. He cited a recent Ohio Supreme Court ruling in State v. Beck Energy Corp., ruling that, in light of that decision, Broadview Heights’s charter amendment is an “invalid exercise” of the city’s home rule authority, and is preempted by Ohio Rev. Code § 1509 “as a matter of law.” (See our previous coverage of the Beck Energy case here.) The Broadview Heights plaintiffs have vowed to appeal the dismissal of their case.
With assistance from Andrew McNamee