On Monday, the Haw River Assembly and Keely Wood Puricz filed suit in North Carolina state court, requesting the court to rule that North Carolina General Statute § 143B-293.2(a) is unconstitutional. North Carolina General Statute § 143B-293.2(a) specifies the appointment process for the North Carolina Mining and Energy Commission (NCMEC) of the Department of Environment and Natural Resources. The NCMEC is composed of five members appointed by the Governor and eight members appointed by the North Carolina General Assembly (NCGA).
Plaintiffs contend that the appointment process for the NCMEC is unconstitutional because it violates the separation of powers doctrine. Specifically, Plaintiffs argue that under the current system, the Governor’s authority is unduly usurped because the state’s legislative branch can appoint more members to the NCMEC than the executive branch.
According to Plaintiffs, the NCGA has influenced its appointees to support measures favorable to fracking supporters. Plaintiffs allege that the NCGA’s appointees travel to town hall meetings with legislators to promote the benefits of fracking.
Both plaintiffs allege that they will suffer irreparable damage if the current composition of the NCMEC persists because the NCGA’s appointees will draft rules in favor of fracking. Plaintiffs are requesting that the court not only declare that the NCMEC appointment process is unconstitutional, but that the court also declare that any actions by the NCGA’s appointees are null and void.
Read the complaint.
This post was written by Barclay Nicholson (barclay.nicholson@nortonrosefulbright.com or 713 651 3662) and Johnjerica Hodge (johnjerica.hodge@nortonrosefulbright.com or 713 651 5698) from Norton Rose Fulbright's Energy Practice Group.
Showing posts with label North Carolina. Show all posts
Showing posts with label North Carolina. Show all posts
North Carolina to allow hydraulic fracking
On June 04, 2014, Governor Pat McCrory of North Carolina signed a bill into law allowing hydraulic fracking within the state, lifting a moratorium that has blocked fracking permits since 2012. Fracking in North Carolina can begin as early as next year.
Gov. McCrory signed the Energy Modernization Act of 2014 at an event at North Carolina State University after the bill passed through the state House (64-50) and Senate (33-12) during the preceding week. The bill was introduced by three Republican state senators, Sens. Bob Rucho, E.S. Newton, and Andrew C. Brock. Republicans lead both the House and Senate in North Carolina.
The state’s Mining and Energy Commission is working on finalizing fracking regulations. Once regulations are complete, the Act will allow for the issuance of permits without additional approval.
The Act also prevents local governments from adopting “any local ordinance that prohibits or has the effect of prohibiting oil and gas exploration, development, and production.” It further criminalizes the disclosure of fracking chemicals or substances used by oil and gas companies. Anyone who knowingly or negligently releases this information may face a felony conviction or civil damages. However, the bill creates an exception for providing information to “first responders and medical personnel in the event that the information is deemed necessary to address an emergency.”
McCrory stated the law will spur economic development at all levels of North Carolina’s economy, and that it contains safeguards to protect the environment. According to his statement, a 2013 poll conducted by Harris Interactive found that the majority of state voters favored fracking.
The Act also prevents local governments from adopting “any local ordinance that prohibits or has the effect of prohibiting oil and gas exploration, development, and production.” It further criminalizes the disclosure of fracking chemicals or substances used by oil and gas companies. Anyone who knowingly or negligently releases this information may face a felony conviction or civil damages. However, the bill creates an exception for providing information to “first responders and medical personnel in the event that the information is deemed necessary to address an emergency.”
McCrory stated the law will spur economic development at all levels of North Carolina’s economy, and that it contains safeguards to protect the environment. According to his statement, a 2013 poll conducted by Harris Interactive found that the majority of state voters favored fracking.
This post was written by Barclay Nicholson (barclay.nicholson@nortonrosefulbright.com or 713.651.3662) from Norton Rose Fulbright's Energy Practice Group.
North Carolina lawmakers consider proposed Energy Modernization Act
In July 2012, North Carolina’s state assembly overrode the governor’s veto to enact a bill lifting a ban on hydraulic fracturing and requiring state regulators to pass and implement rules relating to hydraulic fracturing activities, including the disclosure of chemicals to state agencies and local emergency responders, by October 1, 2014.
On May 15, 2014, several state senators introduced a bill (S.B. 786 or Energy Modernization Act) to extend the deadline to January 1, 2015, and to modify certain provisions relating to oil and gas activities.
On May 15, 2014, several state senators introduced a bill (S.B. 786 or Energy Modernization Act) to extend the deadline to January 1, 2015, and to modify certain provisions relating to oil and gas activities.
The bill provides for the confidentiality of hydraulic fracturing chemicals, “upon a showing satisfactory to the [North Carolina Oil and Gas] Commission by any person that [the] information…, if made public, would divulge methods or processes entitled to protection as confidential information…” § 113-391A(b). The designated custodian of the confidential information would be the state geologist. § 113-391A(b).
There are exceptions for health care providers and fire department officials who need the information for emergencies. If confidential information is given to the emergency personnel, the owner of that information must be notified within 24 hours. The owner may require the emergency personnel to sign a confidentiality agreement. § 113-391A(c)(2) and (3).
The bill provides for penalties if the confidential information is unlawfully disclosed. Any person who has access to the confidential information and who knowingly discloses that information is guilty of a Class I felony; and, if the information is knowingly or negligently disclosed, the person is subject to civil action for damages. § 113-391A(d).
Other provisions of the bill include:
This post was written by Barclay Nicholson (barclay.nicholson@nortonrosefulbright.com or 713.651.3662) from Norton Rose Fulbright's Energy Practice Group.
There are exceptions for health care providers and fire department officials who need the information for emergencies. If confidential information is given to the emergency personnel, the owner of that information must be notified within 24 hours. The owner may require the emergency personnel to sign a confidentiality agreement. § 113-391A(c)(2) and (3).
The bill provides for penalties if the confidential information is unlawfully disclosed. Any person who has access to the confidential information and who knowingly discloses that information is guilty of a Class I felony; and, if the information is knowingly or negligently disclosed, the person is subject to civil action for damages. § 113-391A(d).
Other provisions of the bill include:
- At least 30 days before initiating any operations, an oil and gas developer or operator must provide the lessor with written notice that describes the exploration or development plan. § 113-420(b2).
- There is a presumption that an oil and gas operator is responsible for contamination of all water supplies that are within one-half mile radius of a wellhead unless (1) the contamination existed prior to the commencement of drilling activities, (2) the landowner refused pre-drilling testing of the water, (3) the water supply is not within the one-half mile radius of the operator’s activities, or (4) the contamination was caused by something other than the operator’s activities. § 113-421(a).
- Any local ordinance that prohibits or has the effect of prohibiting oil and gas exploration, development, and production activities is invalid as being preempted by the Mining and Energy Commission. § 113-415A(a). However, a local zoning or land-use ordinance is presumed to be valid and enforceable to the extent the ordinance imposes requirements, restrictions, or conditions that are generally applicable to development, including but not limited to setback, buffer, and storm water requirements. § 113-421(f).
- Subsurface injection of wastes from oil and gas operations including hydraulic fracturing treatments is prohibited. § 113-395B.
- Persons collecting seismic and geophysical data may only conduct such activity by undershooting from an off-site location unless the landowner’s consent is given in writing. Persons conducting seismic activities are civilly liable for any physical or property damage caused by those activities. § 113-395D.
This post was written by Barclay Nicholson (barclay.nicholson@nortonrosefulbright.com or 713.651.3662) from Norton Rose Fulbright's Energy Practice Group.
EPA reviews states’ solid waste management regulations for oil and gas operations
In an April 1, 2014 memorandum, the U.S. Environmental Protection Agency (EPA) summarized state regulatory programs concerning the management of solid waste from oil and natural gas exploration, development and production (E&P) operations.
In reviewing each state’s regulations, the EPA focused on surface storage and disposal facilities managing produced waters, drilling muds, drilling cuttings, hydraulic fracturing return fluids, and various other waste liquids and materials intrinsically related to oil and gas E&P.
The EPA found that the state regulations were primarily concerned with the “technical requirements associated with the design, construction, operation, maintenance, closure, and reclamation of surface pits, ponds, lagoons or tanks, as well as financial assurance requirements associated with such facilities.”
Among the common parameters are state requirements for liners in pits and impoundments, secondary containment requirements for tanks, set-back requirements, and various inspection requirements. However, the EPA did find gaps in regulations relating to groundwater monitoring, leachate collection, air monitoring, and waste characterization.
Overall, with the review, the EPA had developed an understanding of the wide-range of state regulatory programs currently in place in the twenty-six (26) oil and gas producing states covered in the summary.
This post was written by Barclay Nicholson (barclay.nicholson@nortonrosefulbright.com or 713.651.3662) from Norton Rose Fulbright's Energy Practice Group.
In reviewing each state’s regulations, the EPA focused on surface storage and disposal facilities managing produced waters, drilling muds, drilling cuttings, hydraulic fracturing return fluids, and various other waste liquids and materials intrinsically related to oil and gas E&P.
The EPA found that the state regulations were primarily concerned with the “technical requirements associated with the design, construction, operation, maintenance, closure, and reclamation of surface pits, ponds, lagoons or tanks, as well as financial assurance requirements associated with such facilities.”
Among the common parameters are state requirements for liners in pits and impoundments, secondary containment requirements for tanks, set-back requirements, and various inspection requirements. However, the EPA did find gaps in regulations relating to groundwater monitoring, leachate collection, air monitoring, and waste characterization.
Overall, with the review, the EPA had developed an understanding of the wide-range of state regulatory programs currently in place in the twenty-six (26) oil and gas producing states covered in the summary.
This post was written by Barclay Nicholson (barclay.nicholson@nortonrosefulbright.com or 713.651.3662) from Norton Rose Fulbright's Energy Practice Group.
North Carolina Mining and Energy Commission approves trade secret protection for chemicals used in hydraulic fracturing
On January 14, 2014, North Carolina’s Mining and Energy Commission passed a rule allowing oil and gas companies to protect trade secrets relating to the chemicals used during hydraulic fracturing. At least 30 days before using the trade secret chemical or mixture, the company must advise the Department of Environment and Natural Resources (“DENR”) and provide the DENR with the following information:
This post was written by Barclay Nicholson (barclay.nicholson@nortonrosefulbright.com or 713.651.3662) from Norton Rose Fulbright's Energy Practice Group.
- The manufacturer’s name, trade or common name of the chemical, CAS registry number, the chemical’s hazardous class and category (if applicable), and the common name or other similar description associated with each chemical contained in the additive or mixture; and
- The justification for each chemical, additive or mixture to be protected from public disclosure, by filing an affidavit in which the company representative states that the trade secret information is not in the public domain and that the information has been treated in the same manner as other trade secrets within the company, as well as agreeing to notify the DENR if the information loses trade secret status, certifying that the chemical is not regulated under the Federal Safe Drinking Water Act, and certifying that the chemical meets the definition of a trade secret under North Carolina law.
The DENR will then schedule a closed review of the information provided and may require an oral presentation from the company. The rule allows for disclosure to health professionals and emergency responders who provide a written statement of need and execute a confidentiality agreement.
This rule is merely a recommendation to the state legislature which will have a final vote over fracking standards later this year or next. This is one of many regulations that must be issued before the state will lift its moratorium on hydraulic fracturing.
This rule is merely a recommendation to the state legislature which will have a final vote over fracking standards later this year or next. This is one of many regulations that must be issued before the state will lift its moratorium on hydraulic fracturing.
This post was written by Barclay Nicholson (barclay.nicholson@nortonrosefulbright.com or 713.651.3662) from Norton Rose Fulbright's Energy Practice Group.
North Carolina returns EPA grant for hydraulic fracturing study
Tom Reeder, Director of the Division of Water Resources, noted that the state will conduct a study to examine the potential impacts of hydraulic fracturing on groundwater, but at a later date. He also said the study would be conducted by a different agency than that which applied for the funding from the EPA. The Program Development Unit, which housed experts in aquatic ecosystems, would have received the grants, but that unit will no longer exist due to the Division of Water Resources’ reorganization.
At the request of the North Carolina Mining and Energy Commission, which is charged with developing rules on hydraulic fracturing, the DENR explained its return of the EPA funds at a meeting on September 27, 2013. At that meeting, Drew Elliott of DENR stated that although DENR had a “deep background knowledge” of the Sanford Basin, more information would be needed from the Mining and Energy Commission in order to conduct a detailed baseline study of hydraulic fracturing. Mr. Elliott stated that such information would include when and where hydraulic fracturing would occur first, the specific constituents of concern, and what, if any, groundwater could be potentially impacted. The federal grant contained no mention of coordination with the Mining and Energy Commission or the Department of Energy, Mineral and Land Resources. Mr. Elliott also stated that the DENR would be open to suggestions from the Commission about where and how the baseline study can be conducted in the future.
This article was prepared by Lauren Brogdon (lauren.brogdon@nortonrosefulbright.com or 713 651 5375) from Norton Rose Fulbright's energy practice.
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