Stephen A. Bain specializes in environmental and natural resources law and has significant experience with government negotiations. He also has litigation experience involving oil and gas, insurance, and commercial contracts – and extensive experience in international law, especially in the Former Soviet Union. Prior to joining the firm, Mr. Bain w...orked for two years in the Czech Republic as an advisor to the Czech Ministry of the Environment. More

Zero Carbon Natural Gas Would Support More Fracking and More Natural Gas Power Plants

One of the arguments against fracking, and the natural gas industry in general, is that burning gas releases carbon dioxide, which contributes to global warming.i What if burning natural gas resulted in no CO2 emissions? In the next three to five years that may be true.

MIT Technology Review has identified “zero carbon natural gas” as one of ten breakthrough technologies for 2018. NET Power, LLC is currently testing the concept with a 50-megawatt demonstration power plant in LaPorte, Texas. “The plant puts the carbon dioxide released from burning natural gas under high pressure and heat, using the resulting supercritical CO2 as the ‘working fluid’ that drives a specially built turbine. Much of the carbon dioxide can be continuously recycled; the rest can be captured cheaply.”ii NET Power plans to sell or use the remaining CO2 for enhanced oil recovery and manufacturing cement and plastics. 8 Rivers Capital invented and is advancing the Allam Cycle technology behind the project.

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Russia Fails to Defeat Fracking

Gazprom, Russia’s government owned natural gas company, has for decades supplied many Eastern European countries with most or all of their natural gas. It has also had a habit of using its dominant market position to bully its customers into paying more, often by cutting off natural gas supplies needed for heating in midwinter. Gazprom reduced or completely stopped flows of gas to Ukraine in 2006 and 2008, to 18 European countries in 2009, to Ukraine and Poland in 2014, and to Ukraine, Bulgaria, Romania, Slovenia and Bosnia in 2015.

Several years ago Russia and Gazprom identified U.S. hydraulic fracturing technology (fracking) as a threat to Gazprom’s market share, especially its near monopoly over supplying gas to Eastern Europe. The Russians realized that fracking technology had the potential to undermine their position by increasing the development of natural gas that would compete on the open market with Russian gas. In an attempt to address this threat, Russia turned to RT (formerly Russia Today), Russia’s government controlled television network aimed at influencing audiences outside of Russia.

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Hardrock Mining Will Require Hard Cash

On January 11, 2017, EPA published a proposed new rule that would require hardrock mining facilities to post security or prove their financial responsibility under Section 108(b) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund).  Owners and operators of such facilities can already be held strictly liable under CERCLA for cleanup of hazardous substances.  Soon they may also be required to demonstrate their financial strength as a condition of operating.  The total financial obligations imposed by the new rule could exceed $7 billion.

The new rule will apply to over 200 mines and processing facilities that produce gold, silver, copper, lead, iron ore, molybdenum, uranium and other hardrock minerals in over 30 states.  Four types of operations will, however, be exempt:  (1) placer mining; (2) exploration; (3) “[m]ines with less than five disturbed acres that are not located within one mile of another area of mine disturbance that occurred in the prior ten-year period, and that do not employ hazardous substances in their processes”; and (4) “[p]rocessors with less than five disturbed acres of waste pile and surface impoundment.”

The new rule requires calculation every three years of the amount of security to be posted by looking at price deflators and the type of facility.    As an example, EPA proposes the following for a single heap leach operation: 

 

 

 

 

 

Where: 

????????? = the most recent available GDP Implicit Price Deflator for year y; and 

????????2014 = the GDP Implicit Price Deflator for 2014 

i = the ith response category (e.g., water treatment costs); 

n = the total number of relevant response categories

r = EPA region r (e.g., EPA Region 3); and 

s = state s (e.g., Montana).

The formula will require some effort to figure out and must be certified by an independent qualified professional engineer.

The types of financial security that companies can use, depending on the situation and their financial strength, include letters of credit, surety bonds, insurance, financial tests, corporate guarantees, trust funds, and other financial instruments, some of which may be mixed and matched to add up to the required amount.  Owners or operators of multiple facilities will also be allowed to post one bond or other financial instrument to cover all of their facilities.  The total amount of security will not be reduced by doing so, but it may make administering the security easier.

  The full rule will be phased in over four years.  Demonstration of financial responsibility for health assessment costs will be required within two years of publication of the final rule.  Demonstration of financial responsibility for 50 percent of the response and natural resources damages amount will be required within three years, and for 100 percent within four years. 

Although EPA states that the new rule is not meant to preempt, duplicate or disrupt existing state reclamation bonding programs, it seems inevitable that there will be some overlap.  “EPA expects CERCLA § 108(b) to effectively complement” state programs, but mining companies will undoubtedly complain about having to post duplicative financial security for the same reclamation work.

The mining industry has long argued that EPA's proposed financial assurance requirement would duplicate reclamation and closure bonding requirements already mandated by federal and state law. One might expect that the proposed regulation would be a target for the Trump administration’s promised effort to rein in costly EPA regulations, but this new regulation will not go away altogether because it is required by court order in a mandamus petition filed by the Idaho Conservation League and other environmental groups in the D.C. Circuit Court of Appeals.  In Re: Idaho Conservation League, No. 14-1149 (D.C. Cir. January 29, 2016). The court ordered EPA to develop draft CERCLA 108(b) regulations for hardrock mining by December 1, 2016, and final regulations by December 1, 2017. 

A copy of the proposed rule may be found at 82 Fed. Reg. 3388.  Comments should be submitted by March 13, 2017.

 

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Unintentional Misconduct and Standardless Discretion: The Department of Interior’s New Rules for Valuing Oil, Gas and Coal

The Office of Natural Resources Revenue (ONRR) within the Department of the Interior issued new royalty valuation rules on July 1, 2016. Although the goal of the regulations is to simplify the calculation of royalties on federal oil, gas and coal, the 65 pages of rules please no one. Under a new definition for “misconduct,” normally considered to require some degree of intent, misconduct now “means any failure to perform a duty owed to the United States under a statute, regulation, or lease, or unlawful or improper behavior, regardless of the mental state of the lessee or any individual employed by or associated with the lessee.” 30 C.F.R. § 1206.20. Although ONRR can pursue civil penalties only if the misconduct is intentional, in the case of unintentional misconduct connected with a royalty valuation, such as a simple reporting error, ONRR can impose its own valuation.

ONRR has also added a controversial default provision allowing ONRR to substitute its own oil valuation for that reported by a lessee based on actual arm’s-length contracts. Decried by industry as “standardless” ONRR discretion and “second-guessing of arm’s-length contracts,” the provision lacks specific criteria for determining what is a reasonable valuation and gives ONRR the power to impose its own valuation based on “any information we deem relevant.” 30 C.F.R. §§ 1206.101 and 1206.105. Many companies are concerned that the lack of specific criteria for valuation will create uncertainty and act to discourage development of federal minerals.

While industry is not pleased with the new rules, neither is the environmental community, which submitted over 190,000 petition signatures during the public comment period urging the government to “keep it in the ground.” ONRR declined to act, however, stating that a decision to halt federal fossil fuel production was beyond the scope of this rulemaking.

The Final Rule, which takes effect on January 1, 2017, may be found here.

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Proposed BLM Venting and Flaring Rule

On February 8, 2016, the BLM published its long awaited proposed rule to control venting, flaring and leaks of natural gas from oil and gas operations on onshore Federal and Indian lands. 81 Fed. Reg. 6616. The primary purposes of the rule are to: (1) update regulatory requirements in light of newer technology; (2) increase royalties payable to the government and Indian Tribes by capturing more gas; and (3) address concerns about climate change by reducing the amount of methane released to the atmosphere. The rule would supersede requirements dating back to 1979 – Notice to Lessees and Operators of Onshore Federal and Indian Oil and Gas Leases (NTL-4A), 44 Fed. Reg. 76600 (Dec. 27, 1979).

BLM studied Colorado’s Air Quality Control Commission Regulations and consulted with State regulators, referring to Colorado more than 40 times in the description of the proposed rule. Because Colorado has already adopted aggressive regulations to control methane emissions, the effect of the proposed rule would not be as great in Colorado as in other states. The proposed rule would more significantly affect operators in states such as North Dakota, South Dakota and New Mexico, where over 90 percent of routine flaring of associated gas from development oil wells occurs.

Waste Minimization Plan
A novel feature of the proposed rule that would complicate the drilling of development oil wells is a waste minimization plan that operators must submit with each Application for Permit to Drill (APD). The waste minimization plan must provide a strategy explaining how the operator will capture associated gas upon the start of oil production and include the following information:

The pipeline infrastructure location and capacity in the area of the well or wells; the anticipated timing, quantity, and production decline curve of oil and gas production from the well or wells; a gas pipeline system location map showing the operator’s wells, gas pipelines, gas processing plant(s), and proposed routes for connection to the pipeline; certification that the operator has provided one or more midstream processing companies with information about the operator’s production plans, including the anticipated completion dates and gas production rates of the proposed well or wells; the volume and percentage of produced gas the operator is currently flaring or venting from wells in the same field and any wells within a 20-mile radius of that field; and an evaluation of opportunities for alternative on-site capture approaches, if pipeline transport is unavailable.

Failure to submit a complete and adequate plan would be grounds for denying the APD.

Royalties
Although the proposed rule would not itself raise royalty rates above the current maximum of 12.5 percent, it would give BLM the flexibility to ask for a higher percentage on new leases. Recent BLM data “showed that the royalty rates charged on private and State lands range from 12.5 to 25 percent, and that the average rate assessed exceeds 16.67 percent.” Royalty rates on existing BLM leases would not be affected, but BLM is clearly paving the way to increase royalty rates on certain leases in the future.

BLM would also impose royalties on more flared gas. In addition to royalties that are due on any “avoidably lost” oil or gas, operators would also owe royalties on any gas vented or flared above a certain threshold. No more than 1,800 Mcf per month per well, averaged over all of the producing wells on a lease, could be vented or flared from development oil wells. This limit would be phased in over three years, starting with 7,200 Mcf in the first year. In the second year the limit would be 3,600 Mcf and then drop to 1,800 Mcf in the third and subsequent years.

BLM estimates that engineering compliance and other costs to industry from the proposed rule would be in the range of $117 to 161 million per year. These costs would be partially offset, however, by revenue from the sale of natural gas that would otherwise have been lost. It remains to be seen how much of a disincentive the new rule will be for drilling on public lands. Will the royalties from newly captured gas be more than the revenues lost due to operators deciding to drill elsewhere because of the new rule?

Comments on the proposed rule must be received by April 8, 2016.
The text of the proposed rule may be found at: https://www.gpo.gov/fdsys/pkg/FR-2016-02-08/pdf/FR-2016-02-08.pdf

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EPA Announces Final Rule Defining “Waters of the U.S.” under Clean Water Act

On June 27, 2015, the Environmental Protection Agency (EPA) published the final version of a long-anticipated rule defining the scope of the agency’s power to regulate waters under the Clean Water Act. The rule defines what constitutes a “water of the United States” for purposes of regulation under the Clean Water Act. The publication finalizes a multi-year rule-making process of draft proposals and public comments.

The Federal Water Pollution Control Act Amendments of 1972, commonly known as the “Clean Water Act,” allows the EPA to regulate wetlands, lakes, streams, rivers, and other “waters of the United States.” The Act requires that parties obtain a permit for the discharge of any substance into “waters of the United States.” The vagueness of the term “waters of the United States” has been the subject of significant litigation concerning the scope of waters that fall within the EPA and Army Corps of Engineer’s jurisdiction under the Clean Water Act.

Two Supreme Court cases interpreting the definition of “waters of the United States” added to the confusion. In 2001, the Court ruled in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers that the Army Corps of Engineers exceeded its jurisdiction under the Clean Water Act by interpreting the term “waters of the United States” to include isolated, intrastate, non-navigable waters. In 2006, in Rapanos v. United States, where all nine justices agreed that the term “waters of the United States” includes some bodies of water that are not navigable. However, the ruling was a plurality, meaning that there was no majority ruling definitively defining what qualifies as a water of the United States and what does not. The EPA says that the newly final rule does just that.

According to the EPA press release announcing the final rule, the Supreme Court decisions “threw protections into question for 60 percent of our nation’s streams and millions of acres of wetlands. The new rule states explicitly which types of bodies of water are ‘waters of the United States’ and which are not. Using the latest science and technology, this rule clears up the confusion…about which waters to protect.” Under the Rule, EPA has attempted to establish a bright-line test for determining which bodies of water have a hydrological connection to larger water systems. If a hydrological connection is found, under the rule, the EPA has jurisdiction over those waters.

Critics of the new rule say it represents an expansion of the EPA’s authority and could allow the EPA to require private landowners, especially farmers, to obtain permits or environmental studies for temporary bodies of water like seasonal ditches used for irrigation or even large puddles produced during a rainstorm. Supporters of the new rule say landowners do not need to worry about small and temporary water sources because if a body of water does not flow to a major water system or body of water, the EPA did not and still does not have jurisdiction over it.

The EPA stated when it announced the final rule that no new regulations are being added and that this rule is only a clarification of existing law. However, many land users are skeptical of this claim and believe that the rule not only significantly expands the reach of the Clean Water Act, but also raises more questions about which waters are subject to Clean Water Act jurisdiction than it answers. As of the date of this posting, 22 states have filed suit challenging the rule and numerous trade and agricultural associations have stated an intent to join the challenges.
Unless the pending challenges result in a stay of the rule’s implementation, the rule becomes effective on August 28, 2015. To read the full rule, see: https://www.federalregister.gov/articles/2015/06/29/2015-13435/clean-water-rule-definition-of-waters-of-the-united-states

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Western Energy Alliance and IPAA Move to Enjoin New BLM Fracking Rule

BLM’s new fracking rule is scheduled to take effect on June 24, 2015, but the Western Energy Alliance and Independent Petroleum Association of America moved for a preliminary injunction on May 15 to keep that from happening. They allege irreparable harm because the new rule lacks the factual, scientific, or engineering bases to sustain it. “BLM has neither substantiated the existence of problem this rule is meant to address, identified the gap in existing regulations the final rule will fill, or described the objectives the final rule will achieve.” Motion for Preliminary Injunction at 24.

And BLM’s new rule will cost a lot. BLM concedes that the additional cost will be at least $11,400 per well drilled on federal lands, but the Alliance and IPAA assert that the real extra costs per well, depending on particular circumstances, could be:
• $74,400 for using tanks instead of pits for storage of recovered fluids.
• $75,000 to $100,000 for extra mechanical integrity tests.
• More than $100,000 for obtaining more data on total dissolved solids (TDS), or $8,000 to $12,000 per well if sampling is done only on representative wells.
• $111,200 to run a cement evaluation log (this is BLM’s own estimate, but BLM states it will rarely be an additional burden required by the new rule).

Motion at 36, 38, 41, 48. Despite these significant economic burdens, "BLM has no evidence that its costly proposed rule will be any more effective in practice than existing state regulations protecting water and other environmental values.” Motion at 26.

In addition to the additional costs, the new rule would also cause its own negative environmental impacts by requiring greater use of the surface for water tanks. For example, a 150,000-barrel hydraulic fracturing operation may require approximately 2 acres of surface for a single pit, but 325 tanks used to hold the same water would take up almost 5 acres. Motion at 43.

The Alliance and IPAA conclude by arguing that implementation of the new rule should at least be delayed because their members would suffer irreparable harm and there is no urgent reason for the rule to take effect next month. BLM began work on the final rule in November 2010 and “has not identified a single groundwater contamination incident resulting from site preparation, drilling, well construction, completion, hydraulic fracturing stimulation, or production operations that the agency contends its final rules would have prevented.” Motion at 52. What is the rush?

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EPA Proposes Rule to Prohibit What Is Not Being Done

On April 7, 2015, EPA proposed a new rule to prohibit the discharge of wastewater pollutants associated with unconventional oil and gas (“UOG”) extraction to publicly owned treatment works (“POTWs”). Given that EPA is not aware that any UOG wastewater is currently being sent to any POTW, the rule is not expected to have much impact.
The deadline for comments on the proposed rule is June 8, 2015.
Link to EPA Fact Sheet:  http://water.epa.gov/scitech/wastetech/guide/oilandgas/upload/oilandgas-proposed-factsheet.pdf

The text of the rule in the Federal Register may be found at: http://www.gpo.gov/fdsys/pkg/FR-2015-04-07/pdf/2015-07819.pdf

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New BLM Fracking Rule

On March 20, 2015, after considering more than 1.5 million comments, the BLM released its much anticipated fracking rule for oil and gas wells on Federal and Indian lands.

More than 90 percent of all wells, including those on Federal and Indian property, are hydraulically fractured by injecting water, sand and chemicals under high pressure to stimulate the flow of oil and gas. Due to increased public concern over fracking, the rule imposes new requirements for assurance of wellbore integrity, management of flowback fluids, and disclosure of chemicals. The rule requires:

• Before fracking, operators have to perform a successful mechanical integrity test showing that the well can withstand at least the maximum anticipated pressure for 30 minutes with no more than a 10 percent loss of pressure.
• All flowback fluids from fracking must be stored in above-ground tanks. A lined pit may be used instead only if a tank would be infeasible and numerous conditions are met, including being at least 300’ from any stream and 50’ from any usable groundwater.
• Chemicals used in fracking have to be disclosed publicly within 30 days of the last stage of fracking for each well. This information must be certified and submitted “through FracFocus or another BLM-designated database, or in a Subsequent Report Sundry Notice.”

The rule allows operators to request a variance from particular requirements if “the proposed alternative meets or exceeds the objectives of the regulation for which the variance is being requested,” but the “decision whether to grant or deny the variance request is entirely within the BLM’s discretion” and may be rescinded or modified at any time. Various states, including Colorado, Wyoming and North Dakota, are considering whether they might be able to opt out of at least parts of the new rule because their own standards are so strict. BLM Director Neil Kornze told a House Natural Resources subcommittee on March 24 that he is looking at whether variances are warranted for Wyoming and other states and would like to reach those determinations before the 90-day effective date of the rule.
The same day that the BLM initially released the new rule, March 20, 2015, the Western Energy Alliance and Independent Petroleum Association of America filed suit in Federal court in Wyoming to challenge the rule for being unnecessary, overly burdensome and duplicative of environmental regulations and paperwork already required by state regulatory agencies.

The final rule was published in the Federal Register on March 26, 2015. 80 Fed. Reg. 16128. Unless legal challenges are successful, the new fracking rule will take effect on June 24, 2015.

Link to BLM announcement of fracking rule:  http://www.blm.gov/wo/st/en/info/newsroom/2015/march/nr_03_20_2015.html

The text of the rule in the Federal Register may be found at: http://www.gpo.gov/fdsys/pkg/FR-2015-03-26/pdf/2015-06658.pdf

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EPA Proposes Methane Emissions Cuts for Oil and Gas to Meet Climate Change Goals

On January 14, 2015, the Obama Administration announced a plan to reduce methane emissions from oil and gas operations by 40 to 45 percent by 2025. http://www.whitehouse.gov/the-press-office/2015/01/14/fact-sheet-administration-takes-steps-forward-climate-action-plan-anno-1

This announcement is part of the implementation of the President’s 2013 Climate Action Plan, and, in particular, the 2014 “Strategy to Reduce Methane.” President Obama stated then that reducing methane emissions is “critical.” Widely viewed as part of the U.S. “quid” for the “quo” of China’s agreement to peak its greenhouse gas (GHG) emissions by 2030, methane reduction will be a focus of administration policy-making for the next two years.

This 2015 announcement is built on the foundation of several earlier actions. In 2009, pursuant to the Clean Air Act (CAA), the EPA issued the “Endangerment Finding” determining that GHG emissions endanger public health. At that time, the EPA identified methane as one of “the two most important, directly emitted, long-lived greenhouse gases.” 74 Fed. Reg. 66,496, 66,517 (Dec. 15, 2009). Methane is considered to be a more potent GHG than CO2. Also in 2009, the EPA issued a mandatory GHG reporting rule under CAA §114. The oil and gas industry began reporting under subpart W of this rule in 2011. As of 2014, subpart W now covers multiple oil and gas facilities and activities including upstream, gathering and boosting, completions and workovers of fracked oil wells, natural gas distributors, pipeline transportation, and blowdowns of natural gas transmission pipelines between compressors. Finally, in April 2014 the EPA issued five technical “white papers” on oil and gas methane and volatile organic compounds (VOCs) emissions covering compressors, completions/productions, leaks, liquids unloading and pneumatic devices.

The EPA’s 2015 proposal is based on the data collected from the 2009 mandatory reporting rule and the analyses in the 2014 white papers. According to the EPA, methane makes up 10% of GHG and of that total, 30% is contributed by oil and gas. The EPA recognizes that the industry has decreased its methane emissions by 16% since 1990, but is focused on a predicted 25% increase over the next decade. As proposed, these EPA measures apply only to new or modified facilities. Environmental groups will push for application to existing facilities while the industry will argue that voluntary actions have a proven record of achievement.

In order to meet the new goal, the White House proposes several initiatives that will be implemented by several federal agencies:

EPA - New Standards for Methane and VOC Emissions - In the summer of 2015, the EPA will be proposing new standards in a rule for methane and VOCs from “new and modified oil and gas production sources, and natural gas processing and transmission sources” for the oil and gas industry. On January 28, 2015, the EPA called for input from oil and gas small businesses, NGOs and states on the development of a rule to reduce methane and VOCs under the CAA New Source Performance Standards. After considering comments from the states, the oil and gas industry and the public, the EPA will issue a final rule in 2016.
EPA - New Guidelines for Reducing VOCs - The EPA will be developing new guidelines and proposing control measures to reduce VOC emissions from oil and gas operations that states could adopt to help meet air quality standards for ozone. The EPA will publish Control Technique Guidelines (CTG) to address options for VOC emissions in ozone nonattainment areas and states in the Ozone Transport Region.

EPA - Enhanced Leak Detection and Reporting - The EPA will be considering remote sensing technologies to improve the accuracy of reported methane emissions.

BLM - Updated Standards on Public Lands - In April 2015 the BLM will be proposing an update to standards (Onshore Order No. 9) for new and existing oil and gas wells on public lands to reduce venting, flaring and leaks of methane. The final Order is expected in April 2016.

DOT - New Pipeline Safety Standards - Later this year, the Pipeline and Hazardous Materials Safety Administration (PHMSA) will be proposing new natural gas pipeline safety standards to reduce emissions.

DOE - Technology and Emissions Quantification - The federal budget for Fiscal Year 2016 includes approximately $25 million in funding for the development of technology to detect and repair natural gas transmission leaks, development of next generation compressors and quantification of natural gas emissions.

Over the next few years, methane emissions may be reduced automatically if low prices for oil and gas persist and production drops. In the meantime, the emissions reducing strategies outlined above will begin to take effect.

EPA Fact Sheet on the Proposal may be found at: http://yosemite.epa.gov/opa/admpress.nsf/d0cf6618525a9efb85257359003fb69d/ba7961bf631c87bf85257dcd00526ff7!OpenDocument

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