Fracking Insider Readers: We are pleased to bring you Volume 16 of our State Regulatory Roundup, including updates in New York, Ohio and West Virginia. 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.
New York – In Mid-February, the New York Department of Environmental Conservation (DEC) announced that it would be delaying, yet again, its review of hydraulic fracturing that Gov. Cuomo believes is a predicate for any potential lifting of the executive moratorium on hydraulic fracturing. The DEC review is itself predicated on a review by Dr. Nariv Shah, New York’s Commissioner of Health. Dr. Shah requested more time to examine ongoing hydraulic fracturing health studies, including EPA’s study and recently commissioned studies being conducted in Pennsylvania by the Geisinger Health System and the University of Pennsylvania. The delay is significant because it causes New York’s proposed hydraulic fracturing regulations to lapse, and necessitates that such regulations be re-proposed. New York is not prohibited from issuing permits for oil and gas operations that utilize hydraulic fracturing, however, the state will certainly be sued if it does so.
The New York Legislature is also moving to prohibit the issuance of such permit without DEC regulations. On March 6, 2013, the New York State Assembly passed a two-year moratorium on issuing fracking permits in the state. The bill also requires yet another health study by the SUNY School of Public Health. A similar bill (s. 4046) was introduced in the State Senate. The moratorium therein extends two years from enactment or until the EPA and Geisinger studies are complete.
Ohio – In Mid-February, legislation was introduced in the Ohio Senate that would make illegal dumping of oil and gas drilling waste a felony. Penalties for dumping into a waterway would increase to $10,000 and three years in jail. Repeat offenders could face fines of up to $25,000 and six year sentences. The bill is likely in response to accusations of illegal dumping year Youngstown and comes at a time when federal EPA is significantly stepping up enforcement.
West Virginia – On March 4, 2013, the United States District Court for the Northern District of West Virginia heard oral argument in an action involving an oil and gas industry employee claiming injuries from exposures to chemicals in hydraulic fracturing fluid and silica from proppants. The case is commencing after court-ordered mediation stalled in late February. Plaintiff alleges injuries ranging from burns to respiratory problems to post traumatic stress disorder. OSHA has issues a hazard alert for silica use in the oil and gas industry, but it has not issues any alert for hydraulic fracturing fluid.