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News & Flashes

  • 02
  • March
  • 2018

OCC Issues New Seismicity Protocol

On February 27, 2018, the Oklahoma Corporation Commission (“OCC”) issued a new seismicity protocol for oil and gas operators in the South Central Oklahoma Oil Province (“SCOOP”) and the Sooner Trend Anadarko Basin Canadian and Kingfisher counties (“STACK”) plays. The new protocol requires all operators in a certain defined area to have access to a seismic array giving real-time seismicity readings; lowers the minimum level at which operators must take response actions from 2.5 magnitude to a 2.0 magnitude; and requires some operators to pause their operations for 6 hours at when readings exceed 2.5 magnitude, rather than 3.0 magnitude under the previous protocol. (Readings from the seismic array are necessary because tremors of less than magnitude 2.5 generally cannot be felt by humans on the ground surface.)

The new protocol is separate from existing rules addressing wastewater injection in the Arbuckle formation, in the northern area of Oklahoma. Drilling activities in the SCOOP and STACK plays have far less water associated with them than similar activities in the Arbuckle, where the disposal of produced water remains Oklahoma regulators’ “larger concern” in addressing seismic activity, according to an OCC news release. Indeed, seismic activity in the SCOOP and STACK plays is “relatively rare and smaller on average than [that] linked to injection activity. Most importantly, the risk of such events appears to be manageable,” according to the OCC. Read the news release in full here.

  • 05
  • April
  • 2017

Federal Court Dismisses Sierra Club’s Claim for Injunctive Relief Related to Oklahoma Seismicity

On April 4, 2017, Western District of Oklahoma Judge Stephen Friot dismissed an action brought under the Resource Conservation and Recovery Act (“RCRA”) by the Sierra Club against four deep fluid injection well operators. The plaintiff alleged that the defendants’ use of wastewater injection wells presented an “imminent and substantial endangerment to health or the environment” in violation of RCRA because it supposedly causes “waste-induced earthquakes.” The Sierra Club sought a wide range of injunctive relief, asking the court to order defendants to substantially reduce the volume of wastewater they inject into disposal wells, reinforce vulnerable structures, and establish a seismic activity monitoring center to further analyze (and predict) the potential for seismic effects of underground injection of oilfield wastes. 

Judge Friot granted defendants’ motions to dismiss under the Burford abstention and primary jurisdiction doctrines before reaching defendants’ substantive RCRA arguments. Pursuant to the Burford abstention doctrine, federal courts may decline to interfere with proceedings or orders of state administrative agencies where timely and adequate state-level review is available. The Court reasoned that the Oklahoma Corporation Commission (“OCC”) “has established and is operating its own authorized program to regulate these wells” and “has taken action to address the seismic activity which plaintiff maintains is linked to the Arbuckle disposal wells.” Oklahoma law also provides that any person affected by an OCC order may apply to the OCC for repeal, amendment, modification, or supplement of that order. The court also held that the OCC has primary jurisdiction over the harm alleged by the plaintiff for similar reasons. Judge Friot reasoned that the OCC was better equipped than the court to address seismicity concerns associated with fluid injection activities, and has “taken a series of actions, in response to seismic activity, to reduce the volume of wastewater injected into disposal wells.” The court also found that the OCC “has demonstrated diligence in resolving” seismicity issues, and, given its “scientific and technical expertise,” is the appropriate body to grant the type of injunctive relief requested by the plaintiff.

In closing, Judge Friot described the reality of being an Oklahoma resident – implying that he too lived with the tremors. “Every night, more than a million Oklahomans go to bed with reason to wonder whether they will be awakened by the muffled boom which precedes, by an instant, the shaking of the ground under their homes.” Finally, Judge Friot expressed his confidence in the seriousness of the OCC’s regulatory efforts, by noting that “responding to this earthquake activity is serious business, requiring serious regulatory action. The record in this case plainly demonstrates that the Oklahoma Corporation Commission has responded energetically to that challenge.”

Read the order dismissing plaintiff’s complaint in Sierra Club v. Chesapeake Operating, LLC, No. 5:16-cv-00134, here.

  • 23
  • November
  • 2016

Two Lawsuits Relating to Induced Seismicity Filed in Oklahoma

Two lawsuits recently filed in courts in Oklahoma allege claims relating to induced seismicity following a September 8, 2016 earthquake, which measured magnitude 5.8 and had an epicenter approximately 8 miles northwest of Pawnee, Oklahoma.  That quake was the largest reported in Oklahoma since seismic record-keeping began.

The first case, filed in Oklahoma state court on November 17, is a putative class action brought by an Oklahoma resident against 27 oil and gas companies that have engaged in injection well operations near Pawnee, 25 of which are unnamed in the class action petition. The petition generally alleges that defendants’ disposal of fracking wastewater in injection wells caused dozens of earthquakes near Pawnee from September through November 2016 (including the magnitude 5.8 earthquake on September 3) and asserts claims of absolute liability for ultrahazardous activities, negligence, private nuisance, and trespass.  The petition seeks damages for physical damage to real and personal property, market value losses to real property, and punitive damages, and alleges that the defendants are jointly and severally liable for such damages.  Read the Class Action Petition in James Adams et al. v. Eagle Road Oil LLC et al., case number CJ201678, in the District Court of Pawnee County, Oklahoma here.

The second case, brought by the Pawnee Nation of Oklahoma (the “Pawnee Nation”) in federal court, involves claims against the United States Bureau of Indian Affairs, the Bureau of Land Management, and Sally Jewell as Secretary of the Interior.  Specifically, the complaint alleges that defendants’ approval of various oil and gas leases and drilling permits on Pawnee land failed to comply with several federal laws, including the National Environmental Policy Act (“NEPA”), the National Historic Preservation Act, and the American Indian Agricultural Resource Management Act of 1993. The complaint links these failures to various impacts on Pawnee land that have occurred as a result of oil and gas development, including earthquakes allegedly caused by hydraulic fracturing operations.  Like the petition in Eagle Road discussed above, the Pawnee Nation’s complaint makes specific reference to the magnitude 5.8 earthquake that occurred on September 3.  Among the myriad of violations alleged in the complaint is a claim that environmental assessments prepared to comply with NEPA in association with the issuance of drilling permits were deficient for failing to consider earthquakes as an “indirect impact.”  The complaint asks the court to set aside 17 leases approved in 2013, as well as at least 10 related permits to drill and associated sundry notices, and to enjoin the defendants from approving any other activities on the relevant leases until defendants have complied with all federal laws.  Read the complaint in Pawnee Nation of Oklahoma et al. v. Jewell et al., case number 4:16cv00697, in the U.S. District Court for the Northern District of Oklahoma 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
  • February
  • 2016

Sierra Club Files Suit Against Oklahoma Operators

On February 16, 2016, the Sierra Club filed a federal citizen suit against multiple operators in the Western District of Oklahoma. The suit alleges that the defendants’ use of wastewater injection wells presents an “imminent and substantial endangerment to health or the environment,” in violation of RCRA, because it supposedly causes “waste-induced earthquakes.” It asks the court to order defendants to substantially reduce the volume of wastewater they inject into disposal wells, reinforce vulnerable structures, and establish a seismic activity monitoring center to further analyze (and predict) the potential for seismic effects of underground injection of oilfield wastes. It should be difficult for the Sierra Club to prosecute its case in a court of law, and questions abound as to the applicability of RCRA to the underlying allegations, but the court of public opinion may be the group’s intended venue. Read the complaint here.

  • 22
  • June
  • 2012

Now Updated: V&E’s Comprehensive Hydraulic Fracturing Fluid Disclosure Requirements Chart

Vinson & Elkins' Shale & Fracking Practice Group has updated its comprehensive Hydraulic Fracturing Fluid Disclosure Requirements chart. The chart updates the hydraulic fracturing fluid disclosure laws for Ohio, Oklahoma, and Pennsylvania, and covers the Bureau of Land Management's proposed hydraulic fracturing fluid disclosure requirements for drilling on federal lands. You can view the disclosure chart here.

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