Kean Miller

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CMS released 2011 recovery results for the Recovery Audit Contractor (RAC) Program. The 2011 figures reflect a significant increase over the amounts recovered or returned to providers in 2010. Through four quarters (October, 2010 through September, 2011), RAC contractors recovered a total of $797.4 million in overpayments, with $141.9 million in underpayments returned to providers.…

Ever since the Supreme Court handed down its decision in Bliski v. Kappos, 130 U.S. 3218 (2010), practitioners have grappled with the line between eligible and ineligible patent processes. Two recent cases, one eligible and one not will undoubtedly be cited to describe the divide as it relates to a business process.

In August,…

On October 15, 2010, the former Bureau of Ocean Energy Management, Regulation and Enforcement (“BOEMRE”) issued new regulations, incorporating in its entirety and making mandatory the implementation of the American Petroleum Institute’s Recommended Practice 75 (API RP 75).  The rule requires development of Safety and Environmental Management Systems (SEMS) plans by “a lessee, the owner or holder of operating rights, a designated operator or agent of the lessee(s), a pipeline right-of-way holder, or a state lessee granted a right-of-use and easement.” 30 C.F.R § 250.105. According to BOEMRE, “the purpose of SEMS is to enhance the safety and cleanliness of operations by reducing the frequency and severity of accidents.” This final rule applies to all Outer Continental Shelf oil and gas and sulphur operations and the facilities under BOEMRE jurisdiction including drilling, production, construction, well workover, well completion, well servicing, and DOI pipeline activities.

Responsibility for developing and implementing a SEMS program lies with the lessee (or owner or holder of an operating right), unless it delegates the responsibility to another (likely the operator). Contractors are not responsible for developing the plan; however if compliant, contractor procedures may be incorporated into the lessee’s/operator’s SEMS plan.Continue Reading Outer Continental Shelf Safety and Environmental Management Systems: Imminent Deadlines, New Guidance and Proposed Rules

Effective today, October 20, 2011, new permitting and disclosure requirements apply to hydraulic fracturing operations in Louisiana. Known as “fracking” in the oil and gas industry, hydraulic fracturing refers to the process of injecting fluid into tight shale or sandstone formations, which creates fractures in the rock through which oil and gas may travel into the wellbore. When combined with horizontal drilling, fracking allows producers to capture oil and gas reserves that were once thought to be out-of-reach.

Pursuant to the newly-implemented amendment to Subpart I of LAC 43:XIX (Statewide Order 29-B), fracking operators must now apply for and obtain a specific permit for “hydraulic fracture stimulation” from the Louisiana Department of Natural Resources’ Office of Conservation before utilizing pressurized fluids to fracture any formation for the purpose of improving its ability to produce hydrocarbons. After obtaining the requisite permit and conducting its fracking operations, the operator must be prepared to publicly disclose (1) the types and volumes of base fluid used during fracking; (2) a detailed list of all additives used in the fluid and the name of the supplier for each type of additive; and (3) a list and concentration of any chemicals contained in the fracking fluid that are regulated by the Occupational Safety and Health Administration (OSHA) and reported on Materials Safety Data Sheets (MSDS). The lone exception to these disclosure requirements permits an operator to withhold trade secrets, but the regulations still require the operator to disclose pertinent chemical characteristics of even proprietary constituents used in fracking operations.

To comply with these disclosure requirements, the operator must utilize the Office of Conservation’s new WH-1 Form to disclose the information about the base fluids (discussed above), together with detailed information about the identities and volumes of water supplies used during each phase of fracking operations. In lieu of submitting the WH-1 Form directly to the Office of Conservation, the operator may elect to satisfy its chemical reporting obligations by publishing the required information to an online database that makes the information available to the public free of charge. If utilizing the online option, the operator must also furnish a written statement to the Office of Conservation certifying that all required information has been published in an online registry. FracFocus is one online database specifically endorsed by the new regulation, but the disclosure requirements can also be met by publishing the required information to any other “similar registry.” It is anticipated that the option to satisfy Louisiana’s new disclosure requirements by publishing information to FracFocus will be heavily utilized, as many oil and gas companies have already become accustomed to using this registry to comply with other states’ disclosure regulations.
 

Continue Reading New Louisiana Disclosure Rules on Hydraulic Fracturing Take Effect 10.20.11

In less than a month, the Louisiana Department of Health and Hospitals will begin enforcement of its new Home and Community-Based Service Providers Minimum Licensing Standards. The new regulations, which were published in the June 2011 Louisiana Register, contain one set of licensing standards that apply to providers of the following community-based services: Adult Day…

On August 25, 2011, the U.S. Department of Transportation’s (“DOT”) Pipeline and Hazardous Materials Safety Administration (“PHMSA”) announced that it was seeking information concerning contemplated changes in natural gas transportation safety regulations. (1)  This advanced notice of proposed rulemaking (“ANPRM”) follows another one published by PHMSA involving hazardous liquid pipelines. See, 75 Fed. Reg. 63774 (Oct. 18, 2010). Draft rules have not yet been proposed in response to that initiative. In this initiative, PHMSA requests comments on considerations to greatly expand both the reach and the regulatory requirements for gas pipelines.
Continue Reading PHMSA Seeks Comments on Expansion of Gas Transmission Pipeline Regulations

Today, the ICM Registry launched the new sponsored top-level domain – .XXX. The .XXX domain is being launched specifically for the adult entertainment industry; however, the .XXX launch is also important for individuals, businesses, and organizations owning trademark rights. Trademark owners will have a short, fifty-two (52) day period (“Sunrise B period”) to protect their…

On September 2, 2011, President Obama announced that he had requested the Environmental Protection Agency to withdraw the proposed revision to the primary National Ambient Air Quality Standard for ozone at this time. A White House press release quoted the President as stating:

“I have continued to underscore the importance of reducing regulatory burdens and regulatory uncertainty, particularly as our economy continues to recover. With that in mind, and after careful consideration, I have requested that Administrator Jackson withdraw the draft Ozone National Ambient Air Quality Standards at this time. Work is already underway to update a 2006 review of the science that will result in the reconsideration of the ozone standard in 2013.” 1

The request was delivered to EPA Administrator Lisa Jackson via a letter from Cass Sunstein, Director of the Office of Management and Budget. The letter stated that the decision was based on the President’s Executive Order 13563, which emphasizes that “Our regulatory system must protect public health, welfare, safety, and our environment while promoting economic growth, innovation, competitiveness, and job creation.” The letter from OMB indicated that EPA was already in the process of reviewing the ozone standard again based upon the most recent science and is required to complete that review by 2013. It urged EPA to complete that process. However, OMB indicated that the President requested that EPA “reconsider” its proposed rule in light of the directives of the Executive Order, in particular, to “promote predictability and reduce uncertainty.” The OMB letter flatly stated that President Obama did not support EPA’s proposed rule and that regulatory agencies should take action consistent with the President’s priorities. 2
Continue Reading Louisiana Affected By President Obama’s Action on Ozone Standard Reconsideration

Maritime attachment is a powerful procedure that allows an aggrieved party to garnish any of the defendant’s property located within a particular federal judicial district.  Attachment is especially powerful because the garnished property can be used to ensure satisfaction of a claim, even if the property within the judicial district is not related to the claim that has been filed there.  This right can prove invaluable for securing payment of claims from a foreign defendant who cannot be easily traced down and sued.  This particular species of attachment is unique to admiralty law and is only available to satisfy “admiralty” or “maritime” claims, including contractual obligations that are separable from an non-maritime aspects of a contract.

Continue Reading Recent Fifth Circuit Decision Illustrates Importance of Including Demurrage Clause in Contract for Sale and Transport of Goods by Sea

On July 28, 2011, the Louisiana Department of Environmental Quality (LDEQ) denied a petition for the adoption of a rule to regulate fossil fuel carbon dioxide (CO2) emissions and to establish an effective emissions reduction strategy that will achieve a concentration of 350 parts per million (ppm) atmospheric CO2 by the year 2100. The petition was filed on May 4, 2011, by Kezia Kamenetz, of New Orleans, and Kids vs Global Warming, a non-profit organization formed in Oak View, California.
Continue Reading Louisiana Department of Environmental Quality Declines to Regulate Carbon Dioxide Emissions