Produced Water | Session XII - David Muchow

Fossil Fuel Produced Water: Asset or Waste
Atlantic Council, June 24-25, 2013
Washington, DC
Increasing Investor and Public Support for
Fracking
The Real Risks, Truth, and Public Trust
______________________________________________________________________________________
David J. Muchow
Principal, Muchowlaw
David J. Muchow, PLC, dmuchow@muchowlaw.com - 703.625.4115 - 4449 N. 38 St. Arlington, VA - 22207
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David Muchow
Principal, Muchowlaw
• Attorney and Consultant – Corporate Attorney – Transactions,
M&A, Due Diligence
• Energy Association Counsel & Executive (NGSA, AGA, NRECA,
BCSE) Oil, Gas, Renewables, Government Relations
• Tech, Co. CEO, Serial Entrepreneur
• Investor, Mutual Fund VP, Tech. Development
• Former DOJ Prosecutor, Capitol Hill, NSC, OMB
• International - NSC, International Development, Finance

:::
• If we assume that more gas is good and fracking provides
that, then:
• What are the real risks of fracking?
• Investor and public support for fracking depends on TRUST.
• TRUST is built on willingness to listen to and understand real
facts not selected arguments
• What are the facts about the risks?
• How can we get enough facts about company proprietary
operating processes, (some in confidentiality agreements &
litigation settlements) to increase that trust to benefit investors
and the public – while being fair to the companies?
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Getting some questions and answers starts with:
• Finding and asking the right questions
• Seeing what facts are there, where are the gaps; getting more if
necessary
• Fairly evaluating the facts not running from them
• Weighing the results
• Communicating them so that they’re understood and can be
appropriately acted upon.
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• Market Forecast– Very Positive
• Resource Base: EIA: 482 Tcf. unproved, technically recoverable shale
gas resources. 1 Tcf heats 15M homes for one year (100B kWh) 1.
• Sector growth – Rapid – e.g, Marcellus Shale daily production
doubled during 2011. 2.
• Size of Market – very positive
• Replicable? – Yes - US and internationally– with caveats
• Quality of Management and Operators
• Is it their first rodeo?
• Are they hit and run players – leaving a mess behind?
• Stand by you in crisis or run for cover?
• Sufficient financial resources to handle the job right?
• Expertise?
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Clean Water Act
Sec. 402 Analytical Methods
Sec. 316(b) Cooling Water Intakes
Sec. 304(m)(1)(B) and (C) Effluent Limitations Guidelines
Sec. 402 National Pollutant Discharge Elimination System (NPDES) Rules
Concentrated Animal Feeding Operation (CAFO) Final Rule
Pretreatment Streamlining Rule
Sec. 402 NPDES Permit Program
Individual Permits
General Permits
Sec. 404 Regulations Discharges into the Waters of the United States, etc.
Sec. 405 Sewage Sludge (Biosolids)
Sec. 303 (d) Total Maximum Daily Load (TMDL) and Impaired Waters Rules
Sec. 101(a) Water Quality Standards and Implementation Plans
Sec. 303 Water Quality Standards Regulation, CFR Title 40 Part 131
Sec. 303 Water Quality Guidance for the Great Lakes System: CFR Title 40
Sect. 401, Permits and Licenses Certification
ETC., Etc. Etc. Etc……
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• Vary with Type of Investor
• Strategic
• Vertical/Horizontal Growth
• Tax Benefits, etc.
• Investor: All I Want is: Guaranteed Rewards with Minimal Risk !
• ROI: x return – at least as good as sector average
• Money back in x years – payout period
• Risks - Don’t like those – they scare me – especially risks I don’t know
about or understand.
• PR Potential Risk
• Small incident but potential big story with legs
• My pony – what’s in my Water?
• Problems can have Long Tail - Gas Works Park – Seattle, MGP Opened 1975
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• Political Uncertainty – More Regulation/Legislation -
Closely Related to PR Risk Here’s what Public Sees –
What’s the Truth?
• Risk Reduction: Energy Policy Act of 2005 – excluded hydraulic fracturing
from “underground injection,” effectively exempting the process from the Safe
Drinking Water Act (SDWA).3.
• Potential Risks: Fear of Federal, State, Local Legislation, Regulation (a
few random examples):
• House Energy and Commerce Comm. 2011 finding – companies use over
2,500 fracturing products with 750 chemicals and components – 29 known or
possible carcinogens; 1) regulated under Safe Water Drinking Act (SDWA) for
risks to human health, or 2) listed as hazardous air pollutants under the Clean
Air Act. 4. Contra: maybe only very few chemicals used and highly diluted.
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• DOE Report – 2011 Recommendations on fracking “to avoid real risk of
serious consequences.” 5.
• Dept of Interior – 2012 proposed rule requiring companies to disclose
fracking chemicals on public and Indian Lands.
• EPA Standards - 2012, for harmful air pollution from oil and natural gas
production – first federal air rules for fracking natural gas wells.
• DOI – 2012 proposed rule requiring companies to disclose fracking
chemicals on public and Indian Lands.6.
• EPA Standards - 2012 for harmful air pollution from oil and natural gas
production – first federal air rules for fracking natural gas wells.7.
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Potential Risks (cont’d.)

•Potential Risks (cont’d.)
• State and Local Action: Many state, local bans (sample only):
NY: State legislation and 20+ town bans; 60+ temporary bans
Ohio: Earthquake concerns halt a drilling operation.
WY: First state to implement regulations requiring disclosure by
fracking operators of the chemicals used in their wells.
DE River Basin Comm.: Draft regulations for increased bonding
and financial assurance requirements for gas wells.
VT : first state to ban hydraulic fracturing. But VT is outside the
boundaries of Marcellus Shale and didn’t produce any gas from 1960
to 2009.
Gas industry: NGPA 1978 - still continued fear of reregulation in
competition for the utility market – some utilities preferred to stay
w/coal and pay hundreds of millions more for pollution controls
than to grow with cleaner natural gas.
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• Potential Operating Risks/Questions
• Fracking Fluids – Vary, but can be 95% water, 4.5% sand, .05% chemicals –
some chemicals are known carcinogenics – others can produce various health
problems.
• Things can happen when operating at 15,000 psi and 100bbls/min.
• Hazardous chemicals in fluids – bringing fluids to the surface;
• Surface water pollution and run off
• Clean up
• Aquifer damage - hard to clean up
• Air Pollution – diesel or gas emissions from
compressors, rigs, pumps, trucking, etc. Total well to burner emissions for fracking can
be 3.5%-12% higher than for conventional gas production.
• Subsidence – Sink Holes and Other
• Water Consumption – Typical 1.2m – 3.5m gal./well –large projects up to 5m gal.
More when refractured several times. Average well 3-8M gal. over its lifetime.8.
• Seismic – micro earthquakes – Alabama to Montana: 2009: 50 quakes 3.0 or greater;
2011: 134 quakes.
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• Potential Operating Risks/ Questions (Cont’d.)
• Radiation – flowback (wastewater) – could contain uranium, radium,
radon, thorium
• Methane Releases – Wyoming 2006, 7m cu. ft. of gas released from
blown well
• Taxing Policies
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• Spills, Chills and Litigation - Causes of Action Could
Include:
• Violation of Federal, state, local laws
• Private nuisance
• Strict Liability
• Breach of Contract
• Fraudulent Representation
• Gross Negligence, etc., etc.
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• Mitigating the Risk
• Identify Specific Operational, Technology,
and other Needs and fix them. Just do it!
• Contracting Away the Risk to Others - who
assumes what risk in the contracts?
• Insurance
• Legislation to Limit Major Liabilities?
• Are potential liabilities adding too much to
the cost of projects?

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• Financial Risk
• What’s the market competition?
• What could happen to my price assumptions?
• Technology Risk
• Will my technology become obsolete?
• Solyndra – solar panels $8/W to $0.75 cents or less in a few years
• Will the new technology work?
• The finding technology on the production side – 3D seismic, fracking
progress has been dramatic . What else is needed to make other
operations more efficient?
• Customer Resistance: Often the customers prefers what they’ve used for
years vs. more efficient equipment not fully vetted.

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Conclusion: Building Trust is Essential to Enhance Support From
Investors, the Public and Public Officials.
• Built Trust with Truth. But how can we get more of that?
• Balance Disclosure with Company’s Proprietary Information Needs .
• Disclosure: Very fact specific, how critical it is to operations, third party agreements
preventing disclosure, etc.
• Some companies may be better off disclosing a few secrets, ending unfounded
rumors, showing industry leadership, getting more public and investor support and
avoiding more regulation. Virtuous Circle: More disclosures could lead to best
practices and better operations, less risk, and more support .
• Companies & Opponents: Check Your Facts & Don’t Over Play Your Arguments.
• Companies: Stay Ahead of Problems. Acknowledge Problems Quickly; Don’t
let the Problems Control you.

• If Better Operating Practices or Technology is Needed, let’s Focus
more on that and not so much on Legislation, Regulation and
Litigation.
• Better Federal, State, Local Coordination on Regulation and Right
Amount of it.
• Industry Associations Should Lead :
• Continue to Develop Appropriate Industry Standards that Reduce the Risks from
Bad Operators
• Water + Oil/Gas + Technology Companies/Assns. work Together w/Govt. Officials
• Companies Should Continue to Provide Appropriate Information to
the Public – More if Necessary.
• Finally, CEOs Need to be the Public Face of the Company – Don’t Hide.
Lead.
The end
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Conclusion Cont’d. Building Trust is Essential to Enhance Support From
Investors, the Public and Public Officials

1. EIA Annual Energy Outlook 2012 Early Release Rept, 9, (Dec 1, 2011)
2, Id.
3, EPAct ’05, sec. 322, Pub. L. 109-58 (42 U.S.C. Sec. 300h). Some argue that that’s not the case.
4. Chemicals Used in Hydraulic Fracturing, House Comm. on Energy and Commerce at 1, April
2011.
5. SEAB, Shale Gas Production Subcommittee Second Ninety Day Report, at PP 7-9 (Nov. 18. 2011),
http://www.shalegas.energy.gov/resources/111811_final_report.pdf.
6. Interior Releases Draft Rule Requiring Public Disclosure of Chemicals Used in Fracturing on Public and
Indian Lands, DOI (May 4, 2012).
7. EPA Issues Updated, Achievable Air Pollution Standards for Oil and Natural Gas, EPA (Apr. 18, 2012).
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