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News & Flashes

  • 18
  • October
  • 2019

Texas Publishes Proposed Safety for Rural Gathering Pipelines

The Railroad Commission has formally proposed rules that would add safety requirements for rural gathering pipelines. The action is far narrower than the draft rules that the Railroad Commission proposed this summer for informal comment. Historically, rural gathering pipelines have been largely unregulated. This summer’s draft proposal would have imposed on rural gathering lines broad proscriptive requirements related to corrosion control, damage prevention, public education, line marking, and leak surveys above and beyond rules recently finalized by the federal Pipeline and Hazardous Materials Safety Administration. The potential major change drew significant industry attention and many informal comments, both in writing and at a public meeting, including comments that the draft rules were not tied to identified public safety risks.

At its October 1 meeting, the Commission formally proposed safety rules that are far narrower than the draft proposal this summer. Rather than the proscriptive requirements proposed in draft this summer, the current proposed rules would instead subject pipeline operators to a general performance standard – operate in a “reasonably prudent manner to promote safe operation” – and the following incident related requirements: 

  • Report incidents and accidents to the Commission (16 TAC 8.110(c));

  • Conduct investigations after incidents or accidents and cooperate with the Commission during a Commission investigation (16 TAC 8.110(d)); and

  • Submit, at the Commission’s request, corrective action plans to remediate accidents, incidents, threats to the public, or complaints (16 TAC 8.110(e)).

The proposed rules align with H.B. 2982 (2013), which authorizes Commission rulemaking for rural gathering pipelines “based on the risks the transportation and facilities present to the public safety.” Indeed, the Commission acknowledged in the preamble to the proposed rules that it “has recognized the need to compile more accurate and complete information regarding the incidents and accidents that are occurring on gathering systems located in Class 1 locations and rural areas.” That said, the Commission also expressed its belief that these new reporting, investigation, and corrective action requirements “will allow the Commission to gather accurate data and analyze trends in incident or accident occurrences,” permitting it “to more thoroughly assess the risks [that rural gathering pipelines] . . . present to the public safety.” Thus, the data the Commission intends to gather could provide the Commission with the legal basis for a more expansive rule package in the future. 

The proposed rules were formally published in the Texas Register on October 18, opening a 30-day public comment period.

  • 20
  • June
  • 2017

TAMEST Report Concludes that Hydraulic Fracturing Has Not Induced Seismicity in Texas

On June 19, the Academy of Medicine, Engineering, and Science of Texas (“TAMEST”) issued its report titled Environmental and Community Impacts of Shale Development in Texas. The report includes several noteworthy findings, including that:

  • Potentially-induced, felt seismicity in Texas to date has been associated with Class II disposal wells, not with hydraulic fracturing operations; 
  • Direct fracturing into drinking water zones has not been observed in Texas, and such a result is unlikely given the depth separation between oil-bearing formations and drinking water zones; an
  • Shale development “primarily contributes positively to local, regional, and state economies.”

In addition to the above, the report includes other findings and recommendations on geology and earthquake activity, land resources, air quality, water quantity and quality, transportation, and economic and social impacts.  

Other of the report’s recommendations call on the industry to more closely track the environmental and ecological impact of shale operations, and make information surrounding shale development more transparent. For example, as to land resources, the report suggests that “baseline land and habitat conditions at the oil and gas play level should be characterized, and changes to wildlife populations and vegetation should be tracked over time where there are opportunities on both private and public lands,” and that “the existing, nonproprietary information about land impacts of shale development that is collected and evaluated by multiple state and federal agencies should be assembled and made available online to the public.”

The report is the culmination of the efforts of TAMEST’s Shale Task Force, which was convened in 2015 and consists of multiple academic and scientific representatives from institutions and organizations throughout Texas. Read the report in full here.

  • 30
  • March
  • 2016

New USGS Forecast Includes Seismic Events Attributable to Human Activities

On March 28, 2016, the United States Geological Survey (“USGS”) published its first projection of seismic risk that includes seismicity potentially attributable to human activities such as fluid injection or extraction. The report, titled the 2016 One-Year Seismic Hazard Forecast for the Central and Eastern United States from Induced and Natural Earthquakes, does not “explore the causes of the increased seismicity, but rather [tries] to find a way to quantify the associated hazard.” Nonetheless, the model that underlies the report took into account the locations of oil and gas plays, sedimentary basins, and wells. The report concludes that areas in Oklahoma, Kansas, Colorado, New Mexico, Texas, and Arkansas face increased seismicity risks due to active injection areas. The report identifies an area spanning north-central Oklahoma and southern Kansas, where the injection of produced water is common, as the area most at risk. Read the report in full here.

  • 17
  • December
  • 2015

SAB Panel Reviews EPA's Draft Hydraulic Fracturing Study

An EPA Science Advisory Board (SAB) panel recently released an early version of its recommendations regarding the Agency's closely-followed hydraulic fracturing study. A draft of the study was issued by EPA's Office of Research and Development in June 2015, finding that while water supply "vulnerabilities" exist, hydraulic fracturing does not have "widespread, systemic impacts" on drinking water. Despite EPA's insistence that the report is not designed to inform specific policies, commentators have paid close attention because of the study's potential role in the ongoing debate regarding further regulation of the industry.

The SAB panel's review, presented in a "Preliminary Summary Responses" document, is the latest development in this discussion and may impact the final version of the study. Among other comments, the SAB panel report indicates that it is not clear how EPA's statement of no widespread, systemic impacts to drinking water "reflects the uncertainties and data limitations the data described" in the draft study. The SAB panel recommends that the Agency revise its statements of findings "to be more precise and specific, and to clearly draw from the body of the report."

In response to the SAB's recommendations, EPA could potentially amend its prior finding of no widespread, systemic impacts. The SAB is expected to issue a final report with consensus advice in the spring of 2016. EPA still plans to issue its final hydraulic fracturing study in 2016. EPA has faced criticism over its previous groundwater investigations in Pavillion, Wyoming; Parker County, Texas; and Dimock, Pennsylvania.

  • 17
  • June
  • 2015

Railroad Commission Holds Second "Show Cause" Seismicity Hearing

On Monday, another operator of a North Texas oil and gas wastewater disposal well appeared before the Railroad Commission's Hearings Division to "show cause" why its injection permit should not be revoked in light of a Southern Methodist University (SMU) study linking wastewater injection activities to North Texas seismicity. A summary of the hearing is available here.

  • 11
  • June
  • 2015

Railroad Commission Holds First "Show Cause" Seismicity Hearing

An operator of a North Texas disposal well appeared before the Railroad Commission's Hearings Division on Wednesday to "show cause" why its injection permit should not be revoked in light of a Southern Methodist University (SMU) study linking oil and gas wastewater injection activities to North Texas seismicity. A summary of the hearing is available here.

  • 05
  • June
  • 2015

Today's Railroad Commission Workshop Previews Upcoming Show Cause Hearings

Railroad Commissioner Ryan Sitton held a workshop today to review the results of a Southern Methodist University study regarding induced seismicity in North Texas. A summary of the workshop is available here.

  • 06
  • February
  • 2015

Texas Supreme Court Avoids Ruling On Subsurface Trespass Claims

On February 6, 2015, the Texas Supreme Court issued its decision in Environmental Processing Systems, L.C. v. FPL Farming Ltd. The case involved a claim of trespass damages based on subsurface migration from a wastewater injection well. When the Supreme Court first heard the case in 2011, it rejected the well operator's argument that a valid injection permit provided blanket immunity from trespass liability and remanded the case to the trial court. On remand, the jury found that no trespass occurred, but the court of appeals reversed the jury's verdict.

In today's decision, the Court avoided the trespass issue altogether. Instead, the Court decided an ancillary issue regarding the burden of proving "consent" in a trespass cause of action. The trial court's instructions to the jury stated that to recover damages for trespass, the plaintiff had to show that it did not consent to the entry of the defendant's injections beneath its property. The court of appeals held that this jury instruction was erroneous because consent should be an affirmative defense, which the defendant must prove to defeat the plaintiff's claim. The Texas Supreme Court reversed the court of appeals on this point, holding that the burden of proving lack of consent belongs to the plaintiff. In addition, the Court held that the trial court properly denied the plaintiff's motion for a directed verdict (an order from the presiding judge to the jury to return a particular verdict) on the issue of consent. Since the jury found that no trespass occurred based on the facts of the case, the Court did not need to reach the main question in the appeal-whether deep subsurface wastewater migration is an actionable trespass under Texas law.

The oil and gas industry, working interest owners, and other stakeholders have closely monitored this litigation. Many hoped that the Court would resolve the subsurface trespass issue. In prior decisions, the Court has held that well injections performed during enhanced oil recovery activities do not give rise to trespass claims, but recent decisions have raised many questions with respect to the viability of trespass claims in the context of hydraulic fracturing and injection wells. Today's decision does not resolve those questions and will allow other lawsuits against wastewater disposal owners to proceed. Read the opinion here.

  • 29
  • August
  • 2014

Texas Railroad Commission Proposes New Rule Addressing Seismic Events for Disposal Wells

Today, the Texas Railroad Commission ("RRC") published a proposed rule that would impose new permitting requirements for oilfield waste injection wells. The requirements are intended to address concerns that the technique could be inducing earthquakes in parts of the state.

The proposed rule would require companies planning to locate a disposal well in an area where there is an increased risk of fluid migration to submit information such as location of historic seismic events, as well as logs, geologic cross-sections, and/or structure maps to show the well is safe. Such "increased risk" areas may include, for example, areas with complex geology, proximity of the baserock to the injection interval, transmissive faults, and/or a history of seismic events in the area.

If "injection is suspected of or shown to be causing seismic activity," the RRC would have the authority to modify, suspend, or terminate the operating permit for the well. The RRC estimates that the new requirements would cost applicants approximately $300 more per disposal well permit. The proposal was published in the Texas Register on August 29, 2014, and the RRC will accept public comments on the proposal until noon on September 29, 2014. Read the proposed rulemaking here.

  • 27
  • February
  • 2013

RRC Proposes Amendments to Casing, Cementing, Drilling, Well Control, and Completion Rules

On February 15, 2013, the Railroad Commission of Texas (RRC) issued new proposed amendments to its rules governing casing, cementing, drilling, well control, and completion of oil and natural gas wells, which may be downloaded here. The RRC simultaneously withdrew its prior proposed amendments to these rules. The changes from the previous proposed amendments are largely technical in nature. The RRC will accept public comments on the new proposed amendments until 12:00 p.m. on April 1, 2013.

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