American Oil and Gas Reporter - June 2018 - 117

ConventionCoverage: Kansas Independent Oil & Gas Association

KCC Sets Key Precedent
On Issue Of Standing
By Del Torkelson
MCPHERSON, KS.-The Kansas Corporation Commission issued a key regulatory interpretation in early April that
might limit frivolous objections to oil
and gas development, related Kansas Independent Oil & Gas Association President
Edward Cross during the group's Board
of Directors meeting at KIOGA's 2018
midyear meeting, held April 18-20 in
McPherson.
"The KCC ordered that-to be considered valid-all protests filed must meet
the 'direct and substantial interest' requirement by demonstrating that each
individual protester has standing under
Kansas' traditional two-part test," Cross
reported. "Each protester must demonstrate that he suffered cognizable injury,
and that there is a causal connection between the injury and the challenged conduct. That is a very important order for
our industry."
During the KIOGA Board meeting,
which took place at the McPherson Museum, Chairman Ken White recounted
anti-development activists' efforts to nullify
nearly 1,000 injection well permits, while
Cross offered a recap of the 2018 Kansas
Legislature and considered some possible
implications of U.S. trade protectionism
on steel goods. KIOGA directors also got
to hear from a former KIOGA chairman
when KCC Commissioner Dwight D.
Keen spoke before the board to discuss
his objectives while in office.
Standing Limitations
During the board meeting, White,
president of White Exploration in Wichita,
Ks., told how the KCC's interpretation
came after some activists attempted to
stymie a routine application by Cross
Bar Energy to amend an injection permit
in order to increase water volume and
pressure in a secondary recovery project
in Greenwood County, Ks.
"It was a pretty plain application-
nothing outrageous all," White characterized. "But sure enough, the protesters
came out."
He noted that Cross Bar's attorneys

responded with particular attention to the
question of standing. "How does it affect
you? What is in it for you? How does
this damage you directly?" White described. "Before the evidentiary hearing,
a lot of protesters were dismissed for
lack of standing."
When the KCC sought information to
determine protestors' standing, White recalled, many did not respond and thereby
excluded themselves from the proceedings.
Then, he continued, KCC Chairwoman
Shari Feist Albrecht crafted an order-
which the commission approved-that
specified standing criteria must pass the
two-part test.
"It was a really well-written document
that became a precedential order, which
means it is supposed to be the rule
now," White reported. "It is a really important development because the situation
with disposal and injection wells is not
going away."

Kansas Corporation Commission protocol holds that protestors objecting to a
disposal well must meet speciﬁc criteria
to demonstrate their standing on the issue, reports KIOGA Chairman Kenneth
White at the Board of Directors meeting
during the second day of KIOGA's 2018
midyear meeting, April 18-20 in McPherson, Ks. He noted that the policy was
the product of a precedential order the
KCC issued earlier that spring.

Valid Or Not?
White noted that the same activist
who spearheaded the protest against Cross
Bar's permit also led a push to compel
the KCC to invalidate the permits for a
great many saltwater disposal wells drilled
in Kansas since Oct. 24, 2008. He said
that was when the commission expanded
from 15 to 30 days the period in which a
protester could file an objection to injection
wells after required public notice.
The requirement changed without fanfare, White related, and so many unwitting
companies continued to proceed under
the former deadline and used the same
15-day language in their public notifications. After almost a decade without incident, he said, oil and gas opponents
noticed the discrepancy and called on
the commission to nullify nearly 1,000
injection permits.
"Do not shoot the messenger; KCC is
not behind this," White advised. "The
commission opened an informational
docket to ask what should be done with
the permits for these wells that have been
disposing-many of them for years-for
which people did not provide the right
number of days."
Fortunately, White related, a KIOGA
task force noted that about "975 out of
1,000, offered a really good 'out.' Regardless of when their notices were printed
in a newspaper, those applicants did not
get their permits in fewer than 30 days.
The commission has been known to accept
protests after deadlines."
Moreover, he said, KIOGA's brief asserted that the activist who raised the issue
again lacked standing to protest the matter,
and also noted that Kansas case law indicated the permits should stand. "A simple
typographical error in a notice does not
void a permit," White related. "It was unfortunate, but no harm has been done."
Ultimately, he said, KIOGA was urging
the KCC not to waste any more time and
energy on the matter.
2018 Legislature
During his legislative report, Cross
noted that KIOGA had helped the House
Water & Environment Committee not to
JUNE 2018 117

American Oil and Gas Reporter - June 2018

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