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Home My WebLink AboutO 151Other Order 151 1. February 28, 2019 Petition for a hearing on a complaint of waste BPXA, filed by Hollis French 2. March 12, 2019 Email from Hollis French regarding petition 3. March 20, 2019 AOGCC Order denying decision 4. April 8, 2019 French Request for Reconsideration 5. June 22, 2020 BPXA's provided information 6. June 23, 2020 Transcript, Sign In Sheet and BPXA's information 7. July 28, 2020 AOGCC Order 8. August 13, 2020 French's Request for Reconsideration ORDERS STATE OF ALASKA ALASKA OIL AND GAS CONSERVATION COMMISSION 333 West Seventh Avenue Anchorage, Alaska 99501 Re: Petition for a Hearing on a Complaint ) Other Order 151 of Waste. AS 31.05.60(a). ) Docket Number: OTH-19-003 August 24, 2020 ORDER ON RECONISDERATION On June 23, 2020, the Alaska Oil and Gas Conservation Commission (AOGCC) held a hearing on a petition filed by Hollis French (French). French alleged that waste occurred as a result of gas escaping when the DS02-03B well, operated by BP Exploration (Alaska), Inc. (BPXA), failed in April 2017. At the hearing, French stated that his waste petition was premised solely on his view that gas escaping into the air constitutes waste as a matter of strict liability. French further argued the DS02-03B failure created a dangerous situation. Because French's strict liability claim was contrary to the language of the AOGCC's enabling act, AS 31.05.170(15)(H), and its regulations, 20 AAC 25.235(d)(5), AOGCC determined in Other Order 151 that French had failed to demonstrate waste occurred. On August 13, 2020 French moved for reconsideration. First, he claims that AOGCC ignored evidence as to the volume of gas released. Second, French asserts it is inconsistent for AOGCC to claim it initially determined the escaped gas was not waste when it claimed in more recent litigation that the release was under investigation. The AOGCC did not ignore the evidence of the volume of gas which escaped when the DS02-03B well failed. French's argument that AOGCC did ignore evidence regarding the volume of gas which escaped is a reiteration of his claim at the hearing that gas escaping is waste as a matter of strict liability. French's claim is contradicted by the language of the AOGCC's enabling act and its regulations. French's claims that AOGCC did not initially determine the escaped gas was not waste and that AOGCC has taken a position different from its prior litigation position also have no merit. Every operator must file, on a monthly basis, a gas disposition report accounting for the disposition of all gas at a production facility, including gas which was flared, vented or escaped. 20 AAC 25.235. Within 90 days of receiving the gas disposition report, the commission can authorize flaring / venting lasting over an hour under certain circumstances, including "an emergency that threatens life or property." When the DS02-03B failed in April 2017 French was a commissioner. The well failure and its cause were the subject of numerous discussions among the commissioners, as well as AOGCC staff. On June 27, 2017, BPXA provided a 14-page update to its report regarding cause of the Other Order 151 Reconsideration August 24, 2020 Page 2 of 2 DS02-03B failure. On the same date, Commissioner Foerster signed the gas disposition report authorizing the venting of the gas. French neither voiced objection to nor disagreement with the authorization. AOGCC also decided to take no enforcement action against BPXA. French neither voiced disagreement with nor objection to that decision. In July 2017, French became the chair of the AOGCC. In December 2018 a second BPXA well, DS 02-02A, failed in the same fashion as the DS02-03B. AOGCC set a hearing on what had caused the failure. Because of its similarity to the DS 02-03B failure, AOGCC reopened its investigation into that failure and included the DS 02-03B within the scope of the hearing. French was still the chair of the AOGCC at the time it reopened its investigation into the DS 02-03B well failure and he presided over the first half of the public hearing on the topic. As a result, when French filed his request for a hearing on "waste" he was well aware that AOGCC had reopened its investigation into the DS 02-03B well failure. Given the sequence of events, French is aware that AOGCC has not taken inconsistent positions. French's request for reconsideration is DENIED. DIgi I"gnMby Daniel T. =1T.seamuuncJ,. Seamount, Jr. Dace mw.oa.za Ja:zcza-Dana Daniel T. Seamount, Jr. Commissioner J2S512 L. DigiMlly"gnM byk"k L. chMmo�nu Chmlelowski a'`�g"30A820 W03:v Jessie L. Chmielowski Commissioner AND APPEAL This order on reconsideration is the FINAL order of the AOGCC. It may be appealed to superior court. Any appeal MUST be filed within 33 days after the date on which the AOGCC mails this order, OR 30 days if the AOGCC otherwise distributes this order. In computing a period of time above, the date of the event or default after which the designated period begins to run is not included in the period; the last day of the period is included, unless it falls on a weekend or state holiday, in which event the period runs until 5:00 p.m. on the next day that does not fall on a weekend or state holiday. Colombie, Jody J (CED) From: Colombie, Jody 1 (CED) Sent: Monday, August 24, 2020 6:30 PM To: Hollis French Cc: Colombie, Jody J (CED) Subject: Order on Reconsideration - OTH 151 Attachments: Other151 reconsideration.pdf Categories: Yellow Category Please see attached. do(A d. Colombie Special assistant llcts$a Oil and Gas Consernalion Commission 333 Resl7°'Avenue t nchoragc, AK 99501 (907) 793-1221 Direct i907t 2 76- 7542 Fax INDEXES RE( EIVED AUG 13 2020 AOGCC August 13, 2020 To the AOGCC Commissioners, Reconsider. If Other Order 151 is allowed to stand as written, the Commission will have issued an order in which it ignored evidence it received directly from BP at the hearing it conducted on June 23, 2020, verifying that a large volume of gas escaped directly to the atmosphere from one of BP's wells. A Commission blind to the facts is not, to put it mildly, doing its job. Attached to this letter is the presentation that BP submitted to the Commission. The first paragraph of the document is titled Summary of Well 02-03 Incident and Hydrocarbon Release. The words "hydrocarbon release' are a clue to the Commission that something bad happened. If the Commission followed the trail to the end of the paragraph it would find that the concluding sentence states that "The well also released an estimated 1.8 million standard cubic feet of natural gas." That sentence is a confession. It is right there, in black and white. Don't embarrass yourselves in front of the state. Reconsider. A related issue in Other Order 151 is that the Commission has suddenly taken the position that "[s]hortly after the failure, AOGCC determined the gas which escaped was not waste under 20 AAC 25.235(d)(5)(b)." It is certainly not the case that "the AOGCC" did anything of the kind. It is possible that a single commissioner took some action on the matter. If that took place, the Commission should publish its proof. While it prepares to do so, the Commission should consider two matters. First, a single commissioner cannot bind the Commission. Second, the Commission took a very different position in its briefing in defending Other Order 150. Remember? The following sentences and other similar ones appeared in its briefing to Judge Walker: "Any waste assessment requires a determination of causation. AOGCC denied French's request for a hearing because AOGCC is still investigating the cause of the well failure." "Any waste determination requires both an operator to hold accountable and a determination as to causation. An immediate hearing on French's waste allegations would require notice to BPXA, an opportunity for BPXA to be heard, and a ruling prior to conclusion of AOGCC's inquiry into the well failure, effectively precluding AOGCC from holding a hearing on the issues of waste and / or causation should the investigation ultimately reveal such was warranted. The potential for such an outcome seriously prejudices AOGCC in its regulatory enforcement role." In other words, it was nonsensical to have argued strenuously in court that it was impossible to make a waste determination before completing its investigation into the DS 02-03 well failure, if "the AOGCC" had already decided that the escaped gas was not waste. The two positions can't be reconciled. They both can't be true. For these reasons, the Commission should reconsider Other Order 151. Sincerely, Hollis French STATE OF ALASKA ALASKA OIL AND GAS CONSERVATION COMMISSION 333 West Seventh Avenue Anchorage, Alaska 99501 Re: Petition for a Hearing on a Complaint of ) Other Order 151 Waste. AS 31.05.60(a). ) Docket Number: OTH-19-003 July 28, 2020 ORDER On June 23, 2020, the Alaska Oil and Gas Conservation Commission (AOGCC) held a hearing on a petition filed by Hollis French (French). French alleged that waste occurred as a result of gas escaping when the DS02-03B well failed in April 2017. The DS02-03B well was operated by BP Exploration Alaska, Inc. (BPXA). Shortly after the failure, AOGCC determined the gas which escaped was not waste under 20 AAC 25.235(d)(5)(B). French was an AOGCC commissioner at the time. At the hearing, French argued the DS02-03B failure created a dangerous situation. French further stated that his waste petition was premised solely on his view that gas escaping into the air constitutes waste as a matter of strict liability. French's claim is contrary to the language of the AOGCC's enabling act, AS 31.05.170(15)(H), and its regulations, 20 AAC 25.235(d)(5)(B). As a result, French has failed to demonstrate waste occurred. Jeremy ,""�,",":" Daniel T. Jessie L.'"„„;,.,*"°^,""" M. Price ,,,,,, Seamount, Jr. ,°„ "°"""' Chmielowski Jeremy M. Price Daniel T. Seamount, Jr. Jessie L. Chmielowski Commissioner Commissioner Commissioner As provided in AS 31.05.080(a), within 20 days after written notice of the entry of this order or decision, or s ` time as the AOGCC grants for good cause shown, a person affected by it may file with the AOGCC an appli reconsideration of the matter determined by it. If the notice was mailed, then the period of time shall be 23 day application for reconsideration must set out the respect in which the order or decision is believed to be erroneous. The AOGCC shall grant or refuse the application for reconsideration in whole or in part within 10 days after it is filed. Failure to act on it within 10-days is a denial of reconsideration. If the AOGCC denies reconsideration, upon denial, this order or decision and the denial of reconsideration are FINAL and may be appealed to superior court. The appeal MUST be filed within 33 days after the date on which the AOGCC mails, OR 30 days if the AOGCC otherwise distributes, the order or decision denying reconsideration, UNLESS the denial is by inaction, in which case the appeal MUST be filed within 40 days after the date on which the application for reconsideration was filed. If the AOGCC grants an application for reconsideration, this order or decision does not become final. Rather, the order or decision on reconsideration will be the FINAL order or decision of the AOGCC, and it may be appealed to superior court. That appeal MUST be filed within 33 days after the date on which the AOGCC mails, OR 30 days if the AOGCC otherwise distributes, the order or decision on reconsideration. In computing a period of time above, the date of the event or default after which the designated period begins to run is not included in the period; the last day of the period is included, unless it falls on a weekend or state holiday, in which event the neriod runs until 5:00 n.m. on the next day that does not fall on a weekend or state hnlidnv_ Bernie karl Gordon Severson Richard Wagner K&K Recycling Inc. 3201 Westmar Cir. P.O. Box 60868 P.O. Box 58055 Anchorage, AK 99508-4336 Fairbanks, AK 99706 Fairbanks, AK 99711 George Vaught, Jr. Darwin Waldsmith P.O. Box 13557 P.O. Box 39309 Denver, CO 80201-3557 Ninilchik, AK 99639 �� I AOGC( 6/23/2020 ITMO: PETIT_ OR HEARING ON A COMPLAINT OF WASTE OTH - 19-003 ALASKA OIL AND GAS CONSERVATION COMMISSION In the Matter of the Petition for Hearing on a Complaint of Waste Regarding Well DS02-03B Operated by British Petroleum Alaska. Docket number: OTH 19-003 Other order: 151 PUBLIC HEARING June 23, 2020 10:00 a.m. BEFORE: Jeremy Price, Chairman Jessie Chmielowski, Commissioner Daniel T. Seamount, Commissioner Computer Matrix, LLC Phone: 907-243-0668 135 Christensen Dr., Ste. 2., Anch. AK 99501 Fax: 907-243-1473 Email: sahilc@gci.net AOGCC 6/23/2020 ITMO: PETIT. OR HEARING ON A COMPLAINT OF WASTE OTH - 19-003 Page 2 1 TABLE OF CONTENTS 2 Opening remarks by Chairman Price 03 3 Testimony by Mr. French 08 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Computer Matrix, LLC Phone: 907-243-0668 135 Christensen Dr., Ste. 2., Anch. AK 99501 Fax: 907-243-1473 Email: sahile@gci.net AOG((' 6'2.3,2020 ITMO:PET19 OR HEARING ON A COMPLAINT OF WASTE. OTH - 19-003 Page 3 1 P R O C E E D I N G S 2 (On record - 10:02 a.m.) 3 CHAIRMAN PRICE: Good morning. It's 10:02 4 a.m., today is June 23rd, 2020. I'll call this hearing 5 to order. This is docket number OTH 19-003, other 6 order 151, petition for hearing on a complaint of 7 waste. This hearing is being held at the Alaska Oil 8 and Gas Conservation Commission offices at 333 West 7th 9 Avenue, Anchorage, Alaska. Joining me today is 10 Commissioner Dan Seamount and Commissioner Jessie 11 Chmielowski. I'm Jeremy Price, Commissioner and Chair. 12 If any persons here need special accommodations 13 to participate in these proceedings please see Samantha 14 Carlisle and she will do her best to accommodate you. 15 All persons wishing to testify today will state 16 their name and if appropriate who they represent. If 17 they wish to be recognized as an expert make it known 18 and provide proper qualifications. The Commission will 19 allow for sworn and unsworn statements, but greater 20 weight will be given to the former. 21 Today's hearing will be recorded. Upon 22 completion and preparation of the transcript persons 23 desiring a copy will be able to obtain it by contacting 24 Computer Matrix. 25 Before I provide the background for today's Computer Matrix, LTC Phone: 907-243-0668 135 Christensen Dr, Ste -2_Anch-AK99501 Fro, 907-243-1473 Email: sahiletrggci,oet AOGCC 6/23/2020 ITMO: PET17 OR HEARING ON A COMPLAINT OF WASTE OTH- 19-003 Page 4 1 hearing I would like to ascertain if there's anyone on 2 the phone and if there is please identify yourself and 3 if you are planning on testifying in today's hearing? 4 MS. COLOMBIE: Jody Colombie. I'm not 5 testifying. 6 MR. DAVIES: Steve Davies with AOGCC, not 7 testifying. 8 MR. BALLANTINE: Tab Ballantine, not 9 testifying. 10 MR. RIXSE: Mel Rixse, AOGCC. 11 MS. MEARES: Karen Meares, DNR, not testifying. 12 CHAIRMAN PRICE: I heard Mel from AOGCC, who 13 was the next person? 14 MS. MEARES: Terra Meares, DNR, not 15 testifying. 16 CHAIRMAN PRICE: Thank you. 17 MR. SHINE: Jim Shine, Hilcorp, not testifying. 18 MR. FRENCH: Hollis French, testifying. 19 MS. McKENZIE: Amy McKenzie, BP, not 20 testifying. 21 MS. NELSON: Kristin Nelson, Petroleum News, 22 not testifying. 23 MS. MILLER: Rita Miller. 24 MR. BOYER: Dave Boyer, not testifying. 25 CHAIRMAN PRICE: I heard Dave Boyer and Rita Computer Matrix, LLC Phone: 907-243-0668 135 Christensen Dr., Ste. 2., Anch. AK99501 Fax: 907-243-1473 Email: sahile@gci.net AOGCC' 6'212020 ITMO: PE . N FOR HEARINGON A COMPLAINT OF WASTE OTH - 19-003 1 Miller. Page 5 2 MR. SASMOSKI: Doug Sasmoski, not testifying. 3 MR. DANIEL: Brian Daniel, BP, not testifying. 4 MR. KILFOIL: Jeff Kilfoil, not testifying. 5 MR. REGG: Jim Regg, not testifying. 6 MR. MORBACHER: Jesse Morbacher, not 7 testifying. 8 MR. SPESTER: Yolif Spester, not testifying. 9 MR. BORENS: John Borens, Hilcorp, not 10 testifying. 11 MR. WALLACE: Good morning. This is Chris 12 Wallace, AOGCC, not testifying. 13 CHAIRMAN PRICE: Okay. Did we miss anybody? 14 (No comments) 15 CHAIRMAN PRICE: So far I have only Mr. Hollis 16 French testifying. If anyone else wishes to testify 17 today please make it known. 18 (No comments) 19 CHAIRMAN PRICE: I'll ask again at the end of 20 Mr. French's presentation. If any members of the 21 public would like to have a question be considered for 22 the witness and we will deliberate amongst ourselves 23 and respond accordingly. 24 Other than Mr. French I would ask everyone to 25 mute their phones so we can limit any interference on Computer Matrix.. LLC Phone: 907-243-0668 135Christensen De, Ste 2-, Anch. AK99501 Tax_907-243-1473 Eumd: sahileaJ gci. no AOGCC 6/23/2020 ITMO: PE( N FOR HEARING ON A COMPLAINT OF WASTE OTH - 19-003 Page 6 1 the phone lines. And I appreciate everybody's 2 consideration on that. This is our first hearing by 3 phone so it's kind of a trial and error. So please 4 bear with us, at one time or another we may call an at 5 ease just to make sure we're not encountering any 6 technical difficulties and we're doing everything 7 appropriately as this is our first time doing this. 8 So with that I will give the record background 9 information as to why we are today. On March 1st, 2019 10 the AOGCC received a petition for a hearing on a 11 complaint of waste from Mr. Hollis French. Mr. French 12 alleges waste occurred from a well identified as DS02- 13 03B operated by British Petroleum Alaska, known as 14 BPXA. According to Mr. French's petition the well 15 leaked gas into the atmosphere at a very high rate for 16 several days beginning April 14th, 2017. 17 On March 20th, 2018 the AOGCC deemed Mr. 18 French's request for a hearing premature because the 19 investigation was ongoing. Mr. French's request for 20 hearing was denied in other order 151. On April 22nd, 21 2019 Mr. French appealed that decision with the 22 Superior Court for the state of Alaska. 23 AOGCC did not complete its review of the 24 information provided by BPXA until early January of 25 2020. After that review on January loth, 2020 the Computer Matrix, LLC Phone: 907-243-0668 135 Christensen Dr., Ste. 2.. Anch. AK99501 Fax: 907-243-1473 Email: sahileggei.nn &232020 ITMO: PE]. ,N FOR HEARING ON A COMPLAINT OF WASTE OTH - 19-003 Page 7 1 AOGCC propounded additional questions to BPXA. Between 2 January 14th, 2020 and January 21st, 2020 BPXA provided 3 its responses to AOGCC. During the week of January 4 27th, 2020 AOGCC determined it was satisfied with the 5 information provided by BPXA and would not require 6 additional well interventions and would close its 7 investigation. AOGCC notified both Mr. French and the 8 court that its investigation had concluded. The 9 information on that investigation into the well failure 10 of DS02-03B can be found in other order 149. 11 On April 7th, 2020 the Superior Court directed 12 AOGCC to schedule a hearing on Mr. French's petition. 13 The notice of this hearing was published in the 14 Anchorage Daily News on April 28th, 2020. It was 15 posted on the State of Alaska Online Notices website, 16 our email distribution list as well as the AOGCC's own 17 website. 18 Commissioners Chmielowski and Seamount, would 19 you like to add anything at this time? 20 COMMISSIONER SEAMOUNT: I have nothing. Thank 21 you. 22 COMMISSIONER CHMIELOWSKI: I have nothing. 23 Thank you. 24 CHAIRMAN PRICE: Okay. With that, Mr. French, 25 good morning. If you are ready, let's proceed. Computer Matrix, LLC Phone: 907-243-0669 135 Christensen Dr., Ste. 2., Anch. AK99501 Fax: 907-243-1473 Email: sahileftci.net AOGCC 6/23/2020 ITMO: PEA, N FOR HEARING ON A COMPLAINT OF WASTE OTH - 19-003 1 MR. FRENCH: Thank you, Mr. Chairman. I'm 2 happy to be sworn in. 3 CHAIRMAN PRICE: Okay. I can't see you, but 4 I'm going to ask you to raise your right hand anyways. 5 (Oath administered) 6 MR. FRENCH: I do swear. 7 CHAIRMAN PRICE: Thank you, sir. Please 8 proceed with your presentation. 9 HOLLIS FRENCH 10 called as a witness on his own behalf, testified as 11 follows on: 12 DIRECT EXAMINATION 13 MR. FRENCH: Thank you, Mr. Chairman. I'll 14 begin by saying you seem to be a soft spoken individual 15 and so I'm -- I've got you on speaker phone so I can 16 look at documents and so forth as I testify. Can you 17 all hear me all right? 18 CHAIRMAN PRICE: We can hear you great and I'll 19 make sure I speak up so I'm -- I'm heard as well. 20 MR. FRENCH: I was given to understand that 21 you've allotted a couple hours for this hearing and 22 that I can have 30 minutes. Is that about right? 23 CHAIRMAN PRICE: That's correct, yeah. You can 24 take as much time as you need, but we've especially 25 allotted 30 minutes. Computer Matrix, LLC Phone: 907-243-0669 135 Christensen Dr., Ste, 2.,Anch. AK99501 Fax 907-243-1473 Email: sahile@gci.net AOGCC 6/232020 ITMO.PE N FOR HEARING ON A COMPLAINTOF WASTE OTH - I9-003 Page 9 1 MR. FRENCH: Thank you. And I -- I'd be 2 surprised if I took that long, but perhaps, you know, 3 one never knows, but I'll -- I'll be surprised if it 4 takes that long. I would invite questions as I go, but 5 the format makes it very difficult. I may stop from 6 time to time and ask if there are questions if that's 7 not too awkward, but a dialogue of course is more 8 informative to me than simply my speaking at length. 9 But I think the format sort of -- you know, anyway the 10 format requires me to go first and I'm happy to do 11 that, I asked for the hearing. 12 My name is Hollis French, I'm representing 13 myself, I'm a citizen. And I did back over a year ago 14 file with the agency a letter that said this document 15 is a petition for a hearing on a complaint of waste. 16 And then I cited the relevant statute. I -- oh, I just 17 want to make sure I submitted paper documents ahead of 18 time, 89 pages worth, numbered pages, did the 19 Commission receive that? 20 CHAIRMAN PRICE: Mr. French, the Commission did 21 receive that and it will be included for the record for 22 this hearing. 23 MR. FRENCH: Oh, thank you. I was going to ask 24 this. I don't know if you have it in front of you to 25 follow along with or not, but I'm going to be referring Computer Matrix. LLC Phone: 907-243-0668 135Christeusea Dr. Ste. 2..Aach.AK99501 Fax 907-243-1473 Email: sahiICwtut.ael AOGCC 6/23/2020 ITMO. PE. ,N FOR HEARING ON A COMPLAINT OF WASTE OTH-19-003 Page 10 1 it -- referring to it as I go along. If you do have it 2 great, if you don't have it, you know, that's 3 unfortunate because my testimony's going to relate back 4 to the documents you have over and over and over again. 5 I'll try to refer to them by the numbers I assigned to 6 the pages. Page 1 is the petition that we started off 7 talking about, the document that -- the petition for a 8 hearing on a complaint of waste. 9 I guess I want to -- just want to start on that 10 -- start on that first sentence, the -- this document 11 is a petition for a hearing on a complaint of waste. 12 The -- I mean, I hope we can all agree that waste in 13 general is a bad thing and that we don't approve of 14 waste, we don't encourage waste, we're against waste. 15 Maybe not even in the oil field sense, but just in our 16 own lives we think waste is bad, we don't encourage our 17 children to waste, we don't waste ourselves, we try not 18 to waste time or money or, you know, the nice material 19 possessions we have. Waste is bad. 20 As it happens there's also an oil field meaning 21 to waste and for a layman, I guess I always just saw it 22 as the exact opposite, the opposite side of the coin of 23 conserve. If you look up the dictionary meaning of the 24 word conserve and I did it this morning in an American 25 Heritage standard dictionary, about the third Computer Matrix. LIC Phone: 907-243-0668 135 Christensen Dr., Ste. 2., Anch. AN 99501 Fm, 907-243-1473 Email: sahile(n]goi.net AOGCC 6/23/2020 ITMO: PE. .N FOR HEARMG ON A COMPLAINT OF WASTE OTH - 19-003 Page 11 1 definition down it says to not waste. You know, it -- 2 it's just the opposite, conserving and not wasting are 3 the same thing, conserving and wasting are opposite 4 things. Waste is bad and the Conservation Commission's 5 basic mission is to prevent the waste of oil and gas in 6 the state of Alaska, at least that -- that's my belief. 7 8 So that's why I began the letter that way, then 9 I cited the statute and then I identified the well and 10 so forth. of course as you mentioned, Mr. Chairman, a 11 few days later the Commission issued -- issued an order 12 denying my request for a hearing. And I guess I would 13 say the next oh, I don't know, 85 pages of the record 14 are us getting -- us getting back to that initial 15 letter asking for a hearing. The -- it would have been 16 a lot easier if the Commission had just scheduled a 17 hearing, heard -- heard this, we could have done this 18 hearing -- we could have done this hearing back in 19 March and this all would have been over a long time 20 ago, but the Commission refused to give heed to the 21 statutory words in AS 31.05.060. 22 And so after the Commission's denial of my 23 request on page 2 of the documents I submitted, on page 24 3 I submitted a letter for reconsideration. And I 25 tried to point out that the statute really didn't give Computer Matrix, LLC Phone: 907-243-0668 135 Christensen Or., Ste. 2., Anch. AK99501 Fax: 907-243-1473 Email: sahile@gci.net AOGCC 6/232020 ITMOPE N FOR NEARING ON A COMPLAINT OF WASTE OTN - 19-003 Page 12 1 you a lot of wiggle room. The statute says the 2 Commission may act on its own motion or upon the 3 petition of an interested person. I -- that -- that's 4 me, an interested person is me and the Commission never 5 said I wasn't a citizen who cares about waste, that 6 makes me an interested person. So you received a 7 petition from an interested person. 8 The next part of the statute says on the filing 9 of a petition concerning a matter within the 10 jurisdiction of the Commission, and I don't think 11 anyone's questioning the jurisdiction of the Commission 12 over this leak, the Commission shall promptly fix a 13 date for hearing, shall cause notice of the hearing to 14 be given. Didn't do that. Didn't do that. And in 15 this -- this case, you know, I recognize and I think 16 the Commission recognizes and maybe the court 17 recognizes was complicated by the fact the Commission 18 was looking into the well integrity problems on the 19 North Slope concerning not just BP, but a bunch of 20 wells, but specifically those wells of BP's that were 21 popping up out of the permafrost in a rather alarming 22 fashion. 23 So and I thought about that when the Commission 24 denied my hearing, I thought well, okay, fair enough, I 25 mean, maybe -- maybe I'm not aware of what the Computer Matrix, LLC Phone: 907-243-0668 135 Christensen Dr., Ste. 2., Anch. AK99501 Fax: 907-243-1473 Email: sahlie@gci.net AOG('C 6/73/2020 TIME, PE A FOR HEARING ON A COMPLAINT OF WASTE OTH - 19-003 Page 13 1 Commission's up to. I -- I was pretty aware of what 2 they were up to and I was pretty sure that waste -- the 3 question of waste had formed no part of the 4 Commission's inquiry up until I was in the Commission, 5 at least to the best of my knowledge the Commission had 6 never even taken up the issue of the wasted gas. But I 7 gave you some wiggle room, I said okay, fair enough, 8 just -- just you can do this petition in the other 9 docket. You know, just have a hearing on the complaint 10 of waste. Tell me -- tell me when you're going to get 11 around to that important question, you know, what about 12 the wasted gas, not just the well integrity, but the 13 gas that spewed directly into the atmosphere from that 14 well. I thought it was a -- I thought it was a 15 reasonable solution to the problem to schedule a 16 hearing within the context of that other docket. 17 I did -- I did close by saying failing to do so 18 would be abuse -- would be an abuse of the Commission's 19 discretion. That's the last sentence on the last -- 20 the bottom of what I've numbered number 3 in the 21 materials. If I'd -- if I retested since I would been 22 100 percent right if I just so it would be error I 23 would have had the court almost a year later echoing 24 back to me the words I used, but I just said a recent 25 discussion. Computer Matrix, LLC Phone: 907-243-0668 135Christensent),,Ste.2_Anch.AK99501 Fax: 907-243-1473 brad. while(. pci. t AOUCC 6'23;2020 11 MO: PE. .N FOR H FARING ON A COMP1AINlOF W ASTF OTH - 19-003 Page 14 1 So I guess I'll just close -- well, we're not 2 -- we're not done with this, but I'll just go on. 3 The..... 4 CHAIRMAN PRICE: Mr. French, I'll just 5 interrupt you just for a second. Your..... 6 MR. FRENCH: Oh, yeah. Yeah, go ahead. 7 CHAIRMAN PRICE: If you can get a little closer 8 to your speaker phone, you had excellent sound quality 9 when you first started speaking and now you're getting 10 a little muffled. 11 MR. FRENCH: okay. Well, thank you so much. I 12 was holding it up to my voice like this and I put it 13 down to read, but I'll hold it closer to my -- is that 14 better right there? 15 CHAIRMAN PRICE: Yes, that's great. Thank you. 16 MR. FRENCH: Oh, excellent. okay. Thank you. 17 And I appreciate you saying something. And so I -- 18 and, you know, I -- I'll just say in my experience 19 telephonic hearings are awful and so I -- you know, I 20 don't -- I don't downplay the -- it's just a strain to 21 pay attention, it's a strain to be part of, it's just 22 hard without a person in the room and movement and, you 23 know, hand gestures and so forth to pay attention so I 24 appreciate you bringing that to my attention. It's not 25 a great format, but I totally understand given the Computer Matrix, LLC Phone. 907-243-0668 135Chnsteneen Do, Ste. 2.,Anch.AK99501 Fax:907-1431473 Finad sahilcagcinel AOGCC 6,21'2020 ITMO: PL-1 .4FORHEARINGONACOMPI,AINTOF WASTE OTH - 19-003 Page 15 1 Covid run around in the community. 2 So, you know, I -- the Commission did not take 3 up my request to schedule the hearing, it didn't take 4 advantage of the offer to schedule it within the 5 context of the other docket, it just -- it denied my 6 motion for reconsideration by operation of law by not 7 responding to it and so I had -- I had to go to court. 8 That's my only option, I -- you know, the Commission -- 9 there's a statute that says you got to give me a 10 hearing, didn't give me a hearing and so what are my 11 options, I got to go to court. And so I went to court 12 and filed a brief that comprises pages 4 through -- I 13 guess 4 through 16. That's my brief and you can read 14 it at your leisure if you haven't had a chance to read 15 it. What -- it laid out the reasons why I thought the 16 Commission made a mistake. 17 And then we come to the appellee's brief, the 18 brief filed on behalf of the Commission by the agency 19 attorney and I'm going to spend some time on that 20 because there's at least two things that I think should 21 cause some concern to the Commission going forward. 22 And I'm on page 2 of the agency's brief that I called 23 page number 23. At the top of that page it says 24 summary. It says in April, 2017 BPXA experienced a 25 sudden failure on drillsite 02-03B. And it says after Computer M.qm LLC Plmw 907-243 0668 135 Chmlmre n Dr_ Stnl,AnA AK 99501 Fax907-243-1473 E=,l sahib, pcL net AOGCC 6/23/2020 ITMO: PE JN FOR HEARING ON A COMPLAINT OF WASTE OTH - 19-003 Page 16 1 conferring with BPXA the AOGCC took no further action, 2 no further enforcement action, I'm sorry. French was 3 an AOGCC Commissioner at the time. Now I -- when I 4 read that, when I received that in the mail and read it 5 I remember thinking that -- I don't -- I don't think 6 that's right. And I think you may see later in the 7 document I -- you know, it's on page -- my page 31 and 8 page 10 of the agency's brief. At the bottom it says 9 in a footnote, French was an AOGCC Commissioner at the 10 time the agency took no action. I wrote the word false 11 next to that. I -- and the reason I wrote that is 12 because and I include it in the packet and the agency 13 did take action. That -- and this is not a factually 14 accurate statement. 15 And at the bottom of my packet, page 87, you'll 16 see an article from the Alaska Journal of Commerce by 17 Elwood Bremmer, the title of the article is Slope well 18 Review Reveals No Issues Beyond Those Flagged by BP. 19 And the first sentence of that article says an 20 emergency engineering review of all North Slope wells 21 ordered last October by state regulators did not reveal 22 any significant issues, but a regulation change is 23 still likely. Now you have to stop for a second and do 24 a little bit of calendar math here, but if this article 25 was written in January of 2018 and the article says Computer Matrix, LLC Phone: 907-243-0668 135 Christensen Dr., Ste. 2., Anch. AK99501 Fax 907-243-1473 Email: sahile@8ci.net AOG('C 6121,2020 ITMO: PE)NFORIiFARINGONACOMPLAIN"FOFWASI'E OTI I - 19-003 Page 17 1 last October they mean October, 2017. So if you go 2 back to the agency's filing with the court when you 3 read that second sentence on their page 2, after 4 conferring with BPXA agency took no further enforcement 5 action. I don't think that's true. We ordered an 6 emergency engineering review of all the wells. 7 I haven't gone to the trouble of pulling all my 8 old records and looking at what exactly we sent out 9 and, you know, who signed what letter and so forth and 10 what the email traffic was, I haven't -- I haven't gone 11 to that trouble and I don't see why I should have to, 12 but I might. I think it's important for the agency to 13 at least recognize that that sentence is not correct. 14 If you -- if you read that whole paragraph it sort of 15 implies that nothing happened until 18 months later 16 when BPXA experienced identical well failure on 17 drillsite 02-02A and then it says because the failures 18 were identical the agency convened a hearing. So there 19 -- there's a -- there's a real strong impression that 20 AOGCC didn't do anything and the agency lawyer thought 21 that was interesting and important for the court to 22 know. And the court even incorporated that into its 23 order. We'll get to that later, but I think that's 24 also very troubling that the court took the agency's 25 statement at face value, a statement which I believe is Conipmer Mali-m. LLC Phone. 907 243-0668 135Chrisiensen Dr-, Sie, 2.. Anclr AK99501 Fax_907-243-1473 Email: sahilc(agtinel AOGCC 6'232020 ITMO: PL )N FOR HEARINGON A COMPLAINT OF WASTE OTH - 19-003 1 false. Page 18 2 So I just -- we're going to come back to that a 3 couple of times, but I just want to flag that real 4 early and if anybody -- and again I'll -- I'll stop 5 from time to time to take questions, but if anybody 6 thinks I'm inaccurate and -- I'd be happy to help you 7 through their points as soon as possible I'm 8 misconstruing them. 9 Anyway I guess I would also point out that -- 10 again back to that first paragraph on my page 23, your 11 agency filing page 2, since the failures were 12 identical. I don't think they were identical, I think 13 one of those -- anyway one was in production, one 14 wasn't, you know, they weren't -- they weren't 15 identical, but, you know, they were similar. I'm sure 16 they were identical. 17 Getting back to the release of fluids, I guess 18 -- I guess I just want to pull back for a second and 19 now say, you know, it -- the agency's sort of tone in 20 its filing was that it was just way too soon to be, you 21 know, calling this a case of waste. You know, it 22 frequently put the words I use in scare quotes as if it 23 wasn't sure -- as if it wasn't sure what really 24 happened was waste. I'm looking at the bottom of page 25 2 of the agency's filing, my page 23, French filed a Computer Matrix. LLC Phone. 907-243-0668 135Christensen D,..Ste.2..Anc1v AK99501 Tax:907-243-1473 Farad: sahileAgo net AOGCC 6/23/2020 1'1'MO: Ph /N FOR HEARING ON A COMPLAINT OF WASTE. O'FH - 19-003 Page 19 1 request for hearing on and then it's in quotes, waste, 2 he claims occurred as a result of the drillsite 02-03 3 failure. Well, on the next page under the facts, your 4 page 3, my page 24, it says at the end of the first 5 paragraph, the failure resulted in the release of 6 wellbore fluids at the surface. 7 Now, you know, it -- I want -- I want to be as, 8 you know, polite and respectful as I can, but if you 9 have gas shooting out of well to the air there's not a 10 lot more you need to know to call it a case of waste. 11 And I guess -- I mean, you've got to make sure the 12 well's in the state of Alaska of course, you wouldn't 13 want to claim there was waste happening from a well in 14 Canada or somewhere else, but if it's a well that's 15 shooting gas out of it and wellbore fluids, the fluids 16 covered I think one and a half acres, you know, not a 17 -- not a lot of fluid, mostly gas, high gas well. I 18 mean, there you have it, I mean, you know, one, two, 19 three. 20 Frankly, I mean, and, you know, frankly, every -- 21 every time something like this happens the first thing 22 the agency ought to do is slap a waste claim on the 23 company and ask it to confess. And frankly BP would 24 have confessed, they're -- they're reasonable people, 25 they -- you know, they're intelligent people. Look at Computer Matrix. LLC Phoa,, 907-243-0668 135Christeasen D,.Ste. 2., AaCI,AK99501 Fax :907-243-1473 Email: s.hile,a,gCi. ael AOGCC 6,23,2020 ITMO:PE,NFORHEARIN(iONACOMPI,AINTOFWAS'FE OT H - 19-001 Page 20 1 that and go, yeah, we -- we lost control of this one, 2 it jumped up three feet and split open and shot gas to 3 the air for three days. It -- it's just not 4 complicated. 5 And so partly my frustration is that, you know, 6 it took all this work to get to this hearing today for 7 the agency to address an issue which, you know, is sort 8 of a blinking red sort of, you know, captain obvious 9 issue. So that's my comment on page 24. 10 Let's skip ahead to page 29 of my material, 11 page 8 of your filing. Up at the top and I think 12 you'll see on the documents I submitted I put in 13 parentheses the -- about the second full sentence on 14 the page, a waste determination cannot be made without 15 determining -- without a determination as to causation. 16 That -- I put parens around there and put a question 17 mark next to it because I've puzzled -- I've puzzled on 18 that for a long time and I guess I'm still not 100 19 percent sure what it means. If it means what I just 20 said, that you need to know that a well shot gas out of 21 a -- you know, to -- straight to the air and that the 22 well was in Alaska, if that's what you mean by that 23 then, you know, you already knew that. But the 24 pleading seems to be implying that you can't -- you 25 can't -- you can't -- you couldn't possibly do that Computer Matrix, LLC Phone: 907-243-0668 135 Christensen Dr., Ste.2., Anch. AK99501 Fax 907-243-1473 Email: sahileoagcr net AOGC`C 6'23/2020 ITMO: PL JNFORHtiARINGONACOMPLAMTOFWAS'CE OTH - 19-003 Page 21 1 until you figured out all the little factors that went -- 2 that went into making the metals -- you know, the well 3 move and the metal split. And, I mean, I think it's 4 good to know those things, I wouldn't discourage you 5 from knowing those things, but I don't know that it's 6 true, I never saw a citation to a treatise or an 7 encyclopedia or a case or any -- or any, you know, sort 8 of authority, legal authority, for that concept and I 9 continue to question that. I just don't quite know 10 what it brings to the party to make that statement 11 except to give you guys an opportunity to delay. But I 12 didn't think that was helpful to delay. 13 I'll skip ahead now to page -- my page 31, your 14 page 10. As we mentioned earlier the footnote down 15 there says French was an agency commissioner at the 16 time the agency took no action. Again that -- that -- 17 that's just false. I believe that's a false statement. 18 And I guess this brings me to -- this brings me to - 19 you know, I mean, this is troubling, the court -- the 20 court adopted that. And contrary to popular opinion 21 lawyers have to tell the truth when they're talking to 22 a court, it's one of the rules of professional ethics. 23 24 Rule 3.3 of the Alaska Rules of Professional 25 Conduct Candor Toward the Tribunal. It says the lawyer Computer Matrix. LLC Phone. 907-243-0665 135 Christensen Dr., Ste.2., Anch. AK9950I Fax 907-243-1473 Emeil: sandenlgci net AOGCC 6/23/2020 ITMO: PE. iN FOR HEARING ON A COMPLAINT OF WASTE OTH - 19-003 Page 22 1 shall not knowingly make a false statement of fact or 2 law to a tribunal or fail to correct a false statement 3 or material fact or law previously made to the tribunal 4 by the lawyer. Now I want to be very, very clear here. 5 I am not saying for an absolute certainty that the 6 agency attorney broke that professional rule of 7 conduct, but I will say that this statement, those two 8 statements, materially false statements -- well, 9 actually I wouldn't say materially false, I guess 10 that's one of the little sort of curlicues, but 11 certainly a false statement. And I -- you know, I 12 don't know if -- I don't know, I just -- it causes me 13 great discomfort to think that a government lawyer's 14 submitting false statements to a court and not 15 correcting them because I went in some length in my 16 reply to point that out and as far as I know nothing's 17 ever been sent to the court about that. 18 I believe the agency owes a letter to the 19 court, that's my belief. My belief is that the agency 20 should write a letter to the court and say hey, we 21 regret the error, we've -- we read your order 22 carefully, you know, we don't disagree with the order, 23 we obviously scheduled a hearing on Mr. French's 24 complaint just like you ordered us to and we regret the 25 error about insinuating or stating that the agency took Computer Matrix, LLC Phone: 907-243-0668 135 Christensen Dr., Ste. 2., Anch. AK99501 Fax: 907-243-1473 Email: sahile@gci.net AOGCC &232020 ITMO: PE . JN FOR HEARINGON A COMPLAINT OF WASTE OTH - 19-003 Page 23 1 no action because, you know, we did order an emergency 2 well review, we've checked our own records, you know, 3 we've gone back and looked at this. I -- I mean, for 4 you, Mr. Chairman, it might be instructive to just, you 5 know, spend five minutes after the hearing taking a 6 look at those facts because I -- anyway, if you come to 7 a different conclusion I'd be happy to hear you on it. 8 But I -- I think that's deeply troubling, I think you 9 owe the court an explanation and that would certainly 10 satisfy me it's an error because it's a serious one. I 11 don't -- I don't think it's good to be misleading a 12 court on facts that are easily established. 13 On the next page, page 32 of my material, page 14 11 of your submission to the court, the appellee's 15 brief, I circled several words. I circled precluding 16 and prejudices, I address -- I address those -- I 17 address those in my pleading. I -- it always sort of 18 puzzled me why the -- I don't know, I'm not sure how to 19 express my frustration that the agency thinking it 20 would be precluded from holding a hearing. I mean, 21 that's just sort of a bizarre legal idea to put forward 22 and I shot it down pretty thoroughly in my reply and 23 the court shot it down pretty thoroughly in its order. 24 You know, the -- it says in the middle of the page, the 25 potential for such outcomes seriously prejudices AOGCC. Computer Matrix, LLC Phone: 907-243-0668 135 Christensen Dr., Ste. 2., Anch. AK99501 Fax: 907-243-1473 Email: while@gci.net AOG('C 6/232020 ITMO_PE N FOR HEARINGON ACOMPIAINTOFWASTE OTH - 19-003 Page 24 1 I mean, that's just flat out wrong. I mean, that's 2 just flat out wrong. You -- you guys aren't -- you 3 guys aren't prosecuting anybody criminally, there's no 4 double jeopardy aspect to this. There's -- there's -- 5 you know, if you started a hearing on waste and, you 6 know, you could pick it up later or you could, you 7 know, anyway it was bizarre comment to write. 8 But more to the point I want to look at 9 footnote 37. It starts out by saying if French can 10 prove his waste claim and then it goes on to just state 11 some facts and figures. I -- again I guess I kind of 12 go back to the -- the ease of which I think a person 13 can prove a claim of waste in this instance. BP -- the 14 whole would knew that BP's well was shooting gas to the 15 air for three days. It was reported seriously in news 16 outlets around the world. And -- and BP never denied 17 it, I mean, BP said, yeah, we lost control and this 18 well jumped up and it shot gas to the air. You know, I 19 -- I -- you know, that -- that part of the -- again 20 that part of the case is kind of a case closed. 21 I do take -- I do take some issue with I think 22 it's the last sentence. The drillsite 02-03 failure 23 released. Well, then you guys admit it released gas to 24 the air. But you -- it say one million, one -- well, 25 actually it's 1,187 and then thousand standard cubic Computer Matrix. LLC Phone- 907-243-0668 135 Chri stems,, Dr., Ste. 2. Arrh AK 99501 Fax:907-24}I473 Email: sahilew,gi eet AOGCC a 23/2020 1'1'MO. PE N FOR HEARING ON A COMPLAINT OF WASTE OTH - 19-003 Page 25 1 feet of gas. Gas was always -- it's always a little 2 complicated to talk about unit of measurements in gas, 3 but you guys listed it as -- in thousands, one comma, 4 one eight seven. I don't know where that figure came 5 from. I circled it in red and put two asterisks by it 6 because in the filing that I got from BP and that you 7 got from BP, they said it was -- well, in their -- in 8 their first full paragraph in the submission by BP to 9 the agency on this Commission which I'll just note 10 wasn't signed by anybody at BP, but I'm not saying it's 11 not inaccurate -- I'm not saying it's inaccurate, I 12 think it's probably extremely accurate although it did 13 leave out a few things. But what's written down on the 14 piece of paper is -- says the well also released an 15 estimated 1.8 million standard cubic feet of natural 16 gas. 17 Now that's a big difference. If the agency 18 attorney had written, you know, the failure released 19 one comma eight something something something or one 20 that -- you know, something that rounded out to one 21 eight, then I'd say oh, that -- that's fair enough. 22 But I noticed that the agency didn't even write down 23 the word approximately, it -- it writes it down as if 24 it were sort of like a rock solid, you know, you can 25 take this to the bank fact. My other suggestion to the Computer Matrix. LLC Phone: 907-243-0668 1350hrislensen Dr. Ste, 2.-Anch. AS 99501 Fax 907-243-1473 Email: s.hilo(olg6.nct AOGCC' 6/230020 ITMO: PF rN FOR HEARING ON A COMPLAINT OF WASTE OTH - 19-003 Page 26 1 agency, to you the Commissioners, is that I don't know 2 how BP calculated this, maybe you'll ask BP how they 3 calculated it, I don't know if you'll ask them what 4 degree of certainty they have in their calculations. 5 It certainly wasn't run through a mirror, this gas was 6 shooting out of crack in metal straight to the 7 atmosphere. And -- and I'm -- and I'm sure they did 8 their best to make an accurate calculation, but I don't 9 know how they did it. My request would be that before 10 you take final action on this complaint you get their 11 calculations, have some of our A double plus engineers 12 take a look at those calculations and if our A double 13 plus engineers at AOGCC come to the same conclusion 14 then fair enough, you know, my -- I -- you know, I 15 would not have -- I would not know where to begin to 16 ask any questions about those two sets of engineers 17 coming to the same conclusion. But I guess I would ask 18 for an independent check on that, I mean, that just 19 seems like good due diligence on the part of the 20 agency. You know, if the -- if the oil industry say it 21 -- you know, says it was approximately this much, you 22 might just push back and say well, how sure are you of 23 your figures. 24 I guess what's surprising is that -- my final 25 point on this is that besides apparently being wrong Computer Matrix. LLC Phone:907-243-0668 135 Christensen Dr_ Ste. 2., Anch, AK 99501 Fax 907-243-1473 Grail: sahilo9cgni.net AOGCC ' 6/232020 ITMO: PE N FOR HEARING ON A COMPLAINT OF WASTE OTH - 19-003 Page 27 1 it's wrong to the underside of BP. That is the 2 agency's attorney is claiming it released less gas than 3 the oil industry released. And I guess I just find 4 that sort of remarkable in and of itself. It -- it's 5 surprising that -- I mean, normally, you know, the 6 regulator takes kind of a high view and the regulatee 7 takes kind of a low view and you, you know, maybe you 8 split the difference or maybe you don't since you're 9 the regulator, you kind of got the hammer here. But 10 it's a troubling factual error on top of the first 11 factual error and again I think you should give the 12 agency some cause, I don't think the agency wants to be 13 responsible for promulgating bad numbers. You -- that -- 14 that's one of the things the agency does very well is 15 it counts things very accurately and takes very close 16 care on matters like that. You certainly -- you 17 certainly don't want to lose that reputation. 18 Okay. So moving on. The next page, page 33 of 19 my materials, page 12 of the agency's filing with the 20 court. It says at the bottom, French's arguments all 21 hang on a single fallacy, that he's been denied a 22 hearing all together. I remember -- well, I just -- 23 that -- that sentence has always jumped out at me 24 because of its sheer standing -- standing sort of 25 reality on its head. As I pointed out in my reply the Computer Matrix, LLC Phone: 907-243-0668 135 Christensen Dr., Ste. 2., Anch. AK99501 Fax: 907-243-1473 Email: saNle@gci.net AOGCC 6/2Y2020 ITMO: PL )N FOR HEARING ON A COMPLAINT OF WASTE OTH - 19-003 Page 281 1 other order says in all caps denied. So it just 2 doesn't seem like there's much wiggle room on that 3 concept, but for some reason the agency decided to 4 shoot that point and of course that got blown apart in 5 the court's ruling. 6 I think that does -- no, no. The next document 7 I want to bring to your attention is on what I term my 8 page 55. It's your filing -- the court's filing or 9 your filing with the court saying notice of completion 10 of investigation. I think you did make reference to 11 that, Mr. Chairman, in your opening remarks. That was 12 filed on February 4. It -- this filing to me is sort 13 of like the -- it's a clue -- what am I trying to say. 14 If the agency had concurrently with this filing said 15 oh, and by the way we've ordered a hearing to be held 16 on French's complaint of waste then I -- then your 17 earlier filings would have been true, you would have 18 just been waiting for that to get over before you 19 scheduled a hearing on my complaint. But you didn't. 20 That was in February and it took two more months for 21 the court to issue its opinion in April I think it was, 22 yeah, April 7th, almost -- yeah, more than two months. 23 It took more than two months for the court to issue its 24 opinion. If the agency had scheduled a hearing on my 25 complaint on February 4th you could have sent a notice Computer Matrix, LLC Phone: 907-243-0668 135 Christensen Dr., Ste. 2., Anch. AK 99501 Fax: 907-243-1473 Email: sahile@gci.net AOGCC 6123/2020 ITMO. Ph- tN FOR HEARING ON A COMPLAINT OF WASTE OTH - 19-003 Page 29 1 to the court and said hey, we're all done, we're all 2 good, we -- we've scheduled a hearing, you can stop all 3 the work you're having to do on this thing and go back 4 to other important legal questions in front of you, but 5 the agency didn't. 6 It -- you know, I'll say this very cautiously. 7 It's sort of -- it's got a little element of bad faith 8 to it. I'll -- I guess I'll just say that, it's got a 9 little element of bad faith. You know, it's almost 10 like the agency wanted me to come back and ask again. 11 And that's not what the law says and that's certainly 12 not what the court ordered. The statute says when 13 someone files a petition for, you know, something in 14 your jurisdiction, hey, hop to it, man, you guys should 15 be -- you know, follow the law. 16 So that does bring us to the court's order, 17 that brings us to the court's order. That begins on 18 page 57 of the materials I've submitted. On the first 19 page of the court order it says in the third sentence, 20 the Commission erred when it did not fix a date for 21 hearing. Upon finding the Commission error the court 22 remands this issue back to the agency. Page 2 is where 23 the error, the falsehood works its way into the court 24 order. Second sentence, the Commission conferred with 25 BP and took no further enforcement action. we covered Computer Matrix, LLC Phma, 907-243-0668 135 Christensen Dr.. Ste. 2-Anch. AK 99501 Fax 907-243-1471 Email: sahile(Ngci net AOGC'C 6/232020 LIMO:PL IN FOR HEARINGON ACOMPLAINTOP WASTE OTH-19-003 Page 30 1 that. Again if the agency wants to dispute that I'd be 2 happy to hear -- hear anything you say, but I think 3 we've -- you know, to me that's just point blank wrong. 4 And the agency's -- agency, you know, misled the court 5 and that's just bad, that's -- again that's a bad, bad, 6 bad place to be, you don't want to be in that position, 7 that's not a good position to be in. Courts rely on 8 the basic truthfulness of the materials that come in 9 front of them. You can always argue, you know, what 10 the facts mean, but you can't -- you shouldn't be 11 disputing what the facts are. That's bad for everybody 12 and the rule's designed to prevent that from happening. 13 Page 65 of the materials I submitted, page 9 of 14 the court's ruling, in this first full paragraph down 15 towards the bottom of the page, there's a sentence that 16 says the act of holding a hearing will not infringe 17 upon the Commission's regulatory or enforcement 18 authority as the Commission has discretion to determine 19 its course of action after it holds a hearing and 20 that's emphasized. That-- that's a key point that the 21 agency I hope takes away from this whole episode is 22 that just because you have a hearing doesn't mean that 23 you have to reach a final, appealable decision on the 24 merits. For all I know it might take you a year to 25 come to a decision on this waste question and -- and if Computer Matrix. LLC Phone: 907-243-0668 135 Christensen Dr., Ste. 2.. Anch. AK 99501 Fax_907-243-1473 Email: tt ile:mgci.ntt AOGCC 6232020 ITMO: PE -N FOR H EARING ON A COMPLAINT OF WASTE OTH - 19-003 Page 31 1 you do, well, that's fine, but you've done the 2 important thing which is hold a -- is to take care of 3 the citizen in front of you who just wants to be heard 4 on this. That -- that's sort of the whole point, you 5 know, you got to have -- you got to deal with the 6 citizen, the person who wants a hearing and then you 7 say well, it's going to take us a little while to 8 figure this out and I'd have a hard time pushing you to 9 come to a decision or I'd have a hard time getting the 10 court to look at the decision you reached. And that's 11 a much more difficult position for me to be in. 12 It brings me to something that the agency wrote 13 in its --in its filing with the court where it said 14 that my approach was -- I think it was ready, fire, 15 aim. And -- and this actually -- I mean, this sentence 16 here sort of -- I mean, I hate to say it, but throws it 17 back in the Commission's face. You guys are the ones 18 who went ready, fire, aim, okay, you guys denied -- you 19 know, you guys denied my hearing and now we had to go 20 through all this mess to get to the hearing point. So 21 I guess if again if I'm -- if I seem like a broken 22 record I think it's -- I hope the Commission comes away 23 with the solemn impression today that the next time 24 someone files a petition just hop to it and, you know, 25 set the hearing date. I mean, that's what the law Computer Matrix, LLC Phone. 907-143-0668 115 Christensen Dr.. Ste_ 2..Anch.AK99501 Fax: 907-243-1473 Email: sahile¢ngci.nel AOCKC 6,23'1020 ITMO: PE N FOR HEARING ON A COMPLAINT OF WASTE OTH - 19-003 1 said. Page 32 2 This is echoed by -- this is echoed by -- on 3 page 22 of the court's ruling and page 78 of the 4 materials I submitted. Top of the page it says the 5 Commission -- it's about two sentences down. The 6 Commission may perpetually assert holding a hearing 7 prior to the conclusion of an investigation would be 8 premature with no penalty or recourse for an interested 9 party. The practical affect of this interpretation is 10 that the Commission could deny hearings indefinitely. 11 That -- that's -- I'm not saying this Commission would 12 do it because we haven't -- you know, we haven't seen 13 enough of these denials to be sure of that, but it's 14 certainly a problem. I mean, again you guys are 15 creature of statute, you're public servants, you're 16 bound by the statutes, you don't have a constitutional 17 right to exist. If the statute says you got to do 18 something, you got to do it, that's the law. I mean, 19 you know, that -- and you as public servants and as 20 folks charged with enforcing the law you should 21 certainly be punctilious about following it. 22 The same point is made by the court on page 24 23 of its ruling, page 80 in my material. It says that 24 this is because the Commission may not alleviate -- 25 this is towards the top of the page. This is because Computer Matrix, LLC Phone: 907-243-0668 135 Christensen Dr_ Ste_ 2.. And, AK99501 Fax: 907-243-1473 Finad: sahiklagu.w AOGCC 612312020 ITMO:PL iNFORHEARINGONACOMP[.AINTOFWAS'fE OTH - 19-003 Page 33 1 the Commission may not alleviate its statutory duty to 2 hold a hearing once one is requested by perpetually 3 claiming the matter's under investigation. That would 4 be prejudicial to the other party. In some of my -- in 5 trying to reach a resolution with the agency attorney 6 on this case, we went, you know, kind of back and forth 7 a little bit, and he expressed to me it was the strong 8 view of the Commission that it had to retain the right 9 to not hold hearings while an investigation was going 10 on. And I -- and that very well may be the strongly 11 held view of the Commission, but I hope that the 12 Commission after reading the court's ruling came to the 13 correct conclusion that that's a wrong -- that's a bad -- 14 that's a bad practice, it's contrary to law. I can't 15 say it any more strongly than the court did. And so 16 again I just -- I emphasize -- I emphasize that you've 17 got to hold a hearing. 18 Page 26 of the court's ruling, page 82 of my 19 materials, same -- same point at the top of the page. 20 Additionally the Commission did not choose to delay the 21 hearing. It -- and then it goes on to say despite 22 outright denying French a hearing the Commission later 23 attests -- asserts the order was merely a delay. 24 That's -- that's the whole thing about the so called 25 fallacy upon which my whole argument hung. The court Computer Matrix, LLC Phone: 907-243-0668 135 Chnstenseu Dr. Ste 2-Auch. AK 99501 Fax_907-243-1473 Email sahileiwScinet AO6C( 6,11/2020 ITMO'. PE. :N FOR HEARING ON ACOMPLAINTOFWASTE OTH 19-003 Page 34 1 saw through that, it was a denial. The court found the 2 argument problematic, it resolved it in my favor. At 3 the bottom of the page the court wrote the court holds 4 the Commission erred because it did not comply with any 5 of these mandates. 6 And in footnote 100 it really pointed out the 7 same -- the court pointed out what I was trying to say 8 earlier. None of those hearings it says in its 9 analysis the court finds it imperative to distinguish 10 the topicality in Mr. French's hearing request. That's 11 fancy language and good language, but I was asking for 12 a hearing on waste, I wasn't asking to get to the 13 bottom of why the well jumped up, I just wanted to talk 14 about the gas that shot up into the air, that's kind of 15 the simplest thing and no part of those hearings dealt 16 with that. That's why in my letter for reconsideration 17 I said just -- you can fold the waste part into that 18 well review hearing if you want to, but you still got 19 to do it, you got to do it either place. And the 20 Commission didn't take my advice and had to get 21 lectured by a judge for almost 30 pages. 22 The court noted on page 28 of its ruling, page 23 84 of the materials I submitted, the only paragraph on 24 there says Mr. French's petition does not ask for any 25 regulatory actions, he merely requested judicial Computer Matrix. LLC Phone: 907-243-0668 135 Christensen Dr., Ste 2-Aueh. AK 99501 Fax: 907-243-1473 Email sah t,,Wgci. aet AOGCC 6/23/2020 ITMO: PE 'N FOR HEARING ON A COMPLAINT OF WASTE OTH - 19-003 Page 35 1 remedy, the hearing on the question of waste. That's 2 exactly what I did and all you had to do was hold a 3 hearing and you could have avoided all that court -- 4 back and forth court drama which cost everybody a lot 5 of time and energy that didn't have to be spent. 6 That brings me to the end of the material I 7 submitted. I -- we're already discussed page 87, the 8 general commerce description of the well review that we 9 ordered after the first one. 10 Finally on page 89 there's a picture of me 11 standing with one of the inspectors in front of the 12 well that actually jumped up. I'll just say I visited 13 that well, I wanted to see it with my own eyes, I 14 thought it was important for me to go there. One of 15 the inspectors showed me around. I don't -- I didn't 16 hear any inspectors listening in today, but if they do 17 read this transcript later I'll just say that every 18 single one of the AOGCC inspectors are awesome, they're 19 hard working, they're extremely valuable. I hope you 20 all are still being nice to the inspectors. There's a 21 pretty strong tradition of taking good care of the 22 inspectors in the agency and I hope it continues. They 23 do an enormous amount of work, they have to cover the 24 whole state and I didn't meet -- every single one I met 25 I liked, I went -- I made two trips to the North Slope, Computer Matrix, LLC Phone: 907-243-0668 135 Christensen Dr., Ste. 2., Anch. AK99501 Fax: 907-243-1473 Email: sahile@gci.net AOGCC 6232020 ITMO:P6. iN FOR HEARING ON A COMPLAINT OFWASTE OTH - 19-003 Page 36 1 stayed twice up there, two nights at the inspectors' 2 camp and every single inspector I met was top notch, A 3 plus employee. 4 So that brings me to the end of the material I 5 submitted. I guess in wrapping up I'll just say I hope 6 the Commission doesn't make that same mistake again. I 7 hope and it's possible that another petition will be 8 submitted on a different issue of course. But if 9 someone were to -- well, anyway I'll just say it's 10 possible another petition gets submitted, I hope the 11 agency just schedules a hearing and goes about its 12 business the way it's supposed to. 13 I think I mentioned that the -- I hope the -- 14 BP's figures on the size of the waste, the amount, its 15 claim that it's 1.8 million. I hope that's pushed back 16 on, you know, I hope that it has to show its work. 17 Again not to me, I don't -- you know, I can't analyze 18 it, but I hope it has to show its work to the 19 Commission's engineers, you know, what were your 20 assumptions, how'd you measure it, how certain are you 21 that this is what happened. 22 I mean, one of the things that BP doesn't 23 mention in its comments and again I'm not saying that 24 it misled anybody, it just left it out, it couldn't 25 control this well on its own. I worked on the Slope Computer Matrix. LLC Phone: 907-243-0668 135 Christensen Dr_Ste. 2-Anch. AK 99501 Fax:907-243-1473 Email saliilem)gci. net AOGCC' 6,23/2020 ITMO:PE N FOR HEARING ON A COMPLAINT OF WASTE OTH-19-003 Page 37 1 for eight years, I was part of the fire brigade on the 2 North Slope. There's some seriously can do human 3 beings on those fire brigades, I mean, seriously can do 4 human beings, men and women. You know, if there's a 5 gas leak you jump on it, if there's a fire you smother 6 it. If there's -- you know, if there's a problem you -- 7 you know, you hop in the truck and go screaming right 8 out there and take care of it right now. 9 There was something about this well that 10 required BP to call Boots and Coots from Texas to come 11 up and help them fix this problem. So it was a 12 screaming jet stream of gas that the incident commander 13 decided was beyond their capabilities. I'm not saying 14 he was wrong, but I'm just saying that -- that's pretty 15 exciting when you can't control -- can't control the 16 situation with the resources you have at hand on the 17 North Slope. When you call for Boots and Coots you got 18 a wild well and you, you know, you're -- you've got a 19 very dangerous situation, you know, and there was an 20 enormous amount of gas leaking. 21 And you might ask BP when they testify or if 22 they do testify did you think that was a dangerous 23 situation because I think we all know the answer's yes. 24 There was a huge field of loose gas which should make 25 any human being in the oil industry very, very nervous. Computer Matrix. LLC Phone: 907-243-0668 135 Christensen Dr.,Ste. 2-Anch. AK99501 Pax:907-243-1473 Enail: eitale(Ngci.net AOGCC 6123'2020 ITMO.PF N FOR HEARINGONACOMPLAINTOF WASTE 0T11-19-003 Page 38 1 This could have been a lot worse, you know. I mean, I 2 shouldn't have to say anything else. This could have 3 been a lot worse. If you talk to the -- I know we sent 4 an inspector out there to watch what was happening, I 5 know there were drillsite operators from BP there, 6 there was an incident commander, a fire brigade captain 7 probably all standing by waiting for Boots and Coots. 8 But I'm sure they pulled way back and shut every flame 9 down they could. It was a very, very dangerous 10 situation. 11 So I guess I'll -- yeah, I'll just close by 12 saying that the waste should have been the first thing 13 you dealt with, not the last, because it's the easiest 14 to spot, easiest to prove. I would ask BP what degree 15 of certainty applies to their measurement and unless 16 there are -- you know, I'll be happy to answer 17 questions, but I'll just say this is probably not the 18 last time that permafrost problems on the North Slope 19 are going to cause the Commission a headache. 20 Those are all my comments. Thank you so much. 21 CHAIRMAN PRICE: Thank you, Mr. French. 22 Appreciate your comments. Do we have any questions 23 from Commissioners? 24 COMMISSIONER SEAMOUNT: I have none. I suggest 25 we go to a short break. Computer Matrix, LLC Phone: 907-243-0668 115 Christensen Dr.. Ste. 2.. Anch. AK 99501 Fax:907-243-1473 E.oai1: sehile(rug, stet AOOCC 623/2020 ITMO:PE N FOR HFARINCONACOMPLAINIOFWASTE OTH - 19-001 Page 39 1 CHAIRMAN PRICE: How much time would we like to 2 take a break, is 15 minutes enough, 20 minutes? 3 COMMISSIONER SEAMOUNT: Yeah. 4 CHAIRMAN PRICE: Mr. French, we're going to 5 take a break for about 20 minutes. Can you stay on the 6 line for us? 7 MR. FRENCH: I will. It's 10:50 I'll stay on 8 the line. I'll -- you know, 11:05 kind of thing. 9 CHAIRMAN PRICE: Yep, that would be great. 10 And, Mr. Daniel, are you still on the phone? 11 MR. DANIEL: Yes, I am, Commissioner. 12 CHAIRMAN PRICE: Could you also stay on the 13 line while we take a break and we'll reconvene in 20 14 minutes? 15 MR. DANIEL: Okay. 16 CHAIRMAN PRICE: Thank you. We'll call an at 17 ease, we'll be back in 20 minutes. 18 (Off record) 19 (On record) 20 CHAIRMAN PRICE: I'd like to call this hearing 21 back into order. Mr. French, are you still with us? 22 MR. FRENCH: Yes, I am. 23 CHAIRMAN PRICE: Thank you for that break. We 24 have a couple clarifying questions. First were you 25 stating that the AOGCC did not afford you the Computer Matrix, LLC Phone: 907-243-0668 135 Christensen Dr_Ste. 2-Auch. AK99501 Fax:907-243-1473 Email: sahile,dgr, net AOGCC 6/23/2020 ITMO.PE .N FOR HEARINGON ACOMPLAINTOF WASTE O"Fit -19-003 Page 40 1 opportunity for a hearing until the court order 2 required us to? 3 MR. FRENCH: I hate to answer a question with a 4 question, but I filed a petition for a hearing on a 5 complaint of waste on February 28th, 2019. The 6 Commission's order on that complaint denied me a 7 hearing and there was no hearing scheduled until the 8 court ordered one. Now it's true that I was working 9 out a resolution to the case concurrently with the 10 agency's attorney. 11 CHAIRMAN PRICE: Okay. The other question I 12 want to ask you is in your earlier presentation you 13 seemed to intimate that the cause of release is 14 irrelevant to making a waste determination in terms of 15 liability. Can you clarify that? 16 MR. FRENCH: Well, it would probably take a 17 half an hour to work out the details, but I think in 18 general let's -- let's just use this case as a specific 19 example. Okay. That way we don't run that off in sort 20 of, you know, hypothetical world. 21 In this case, you know, I don't think there's 22 any reasonable doubt that a whole bunch of gas shot out 23 of a well in an uncontrolled way, straight to 24 atmosphere and the well was operated by BP Alaska, 25 right. So I think -- let's just put it this way. I Computer Matrix. LLC Phone: 907-243-0668 135 Christensen Dr_ Ste.2., Are[, AK99501 Fax 907-243-1473 Email, sahile«pgei net AOGCC W23/2020 ITMO: PE N FOR NEARING ON A COMPLAINT OF WASTE 0111 - 19-003 Page 41 1 don't know what other facts you really need to make a 2 determination of waste purely on the waste question in 3 my view. You may have a different view, but I think in 4 this case once you know it was a BP well and a bunch of 5 gas shot out straight to atmosphere you're kind of done 6 thinking on the waste question. 7 It may be a fascinating inquiry to look into 8 what made those wells pop and then really I'm glad you 9 brought that up because it reminded me I do want to 10 point out that the amount of force it took to rip that 11 well casing lengthwise, I remember writing down in an 12 earlier hearing was like enough to lift, you know, a 13 moon shot rocket. I mean, it was -- I mean, it was -- 14 you know, the casing separated lengthwise, it didn't 15 pop out the side, it separated lengthwise, it was an 16 enormous amount of pressure. 17 But I hope I -- and I appreciate the question 18 and I appreciate the dialogue, but I think, yeah, on -- 19 purely on the question of waste all you need to know is 20 hey, you're the operator, yeah, and that's -- and 21 that's gas coming out of your well, yeah, and it's 22 going straight to atmosphere, yeah. Boom, you throw 23 the waste flag. You know, I mean, it's just -- I don't 24 think it's that complicated. 25 CHAIRMAN PRICE: okay. So just to clarify one Computer Matrix. LLC Phone: 907-243-0668 135 Christensen Dr.. Ste. 2.. Anch. AN 99501 Fax:907-243-1473 Enad sahiletpf6ci net AOGCC 6/23/2020 ITMO: Pi JN FOR HEARING ON A COMPLAINT OF WASTE OTH - 19-003 Page 42 1 more time, is waste a matter of strict liability? 2 MR. FRENCH: In my view, yes. I don't know 3 how, you know, it -- you know, it..... 4 CHAIRMAN PRICE: Okay. 5 MR. FRENCH: .....as long as you -- if you came 6 -- if you were driving down the road and you came upon 7 a cloud of gas and you didn't know who the cloud of gas 8 belonged to, well, then you -- you'd have a problem. 9 And of course the Commission and I have a different 10 view of, you know, the exact boundaries of the agency's 11 jurisdiction, but that's a discussion for a different 12 day. But in this case it's coming straight from the 13 well and so, you know, I mean, you know, in a way it's 14 sort of the -- I guess it was part of the obviousness 15 of the waste maybe that kept the agency from dealing 16 with it so long. Because it really wasn't -- I mean, 17 the more interesting question -- I mean, fair -- I 18 mean, in all fairness to the Commission, the more 19 interesting question in this case was why are these 20 wells moving. 21 You know, I spent almost 10 years of my life as 22 a production operator and I've climbed up onto probably 23 a thousand wells if not more and I've opened them and 24 closed them and the idea of a well moving like this is 25 partly why I wanted to go look at it because the idea Computer Matrix, LLC Phone: 907-243-0668 135 Christensen Dr., Ste. 2., Anch. AK99501 Fax: 907-243-1473 Email: sahilc@gci.net AOGCC 623/2020 ITMO. PE. N FOR HEARING ON ACOMPLAINT OF WASTE OTH - 19-003 Page 43 1 of a well moving is, you know, I mean, that rocks you 2 to your foundation. The idea that a wellhead is going 3 to move suddenly under pressure from under the earth is 4 shocking, it's amazing, it's powerful, it's worth the 5 study the Commission put into it. The -- the waste is 6 almost the least interesting aspect of this case and 7 it's the easiest aspect. 8 CHAIRMAN PRICE: Thank you, Mr. French. Any 9 other additional questions from Commissioners? 10 COMMISSIONER CHMIELOWSKI: None. 11 COMMISSIONER SEAMOUNT: None from me. 12 CHAIRMAN PRICE: And folks on the phone, do we 13 have any questions from the public. Please make it 14 known at this time. 15 MS. MEARES: Sorry. This is Terra Meares from 16 DNR and I apologize if this is a silly question because 17 I'm not as familiar with gas releases compared to more 18 oil based releases. But just out of curiosity, is -- I 19 mean, is there an established figure or A of impact 20 that is, you know, easily defined, the defined place, 21 is that -- or is that -- is it more -- is that more 22 difficult to determine? 23 CHAIRMAN PRICE: Can you state your name one 24 more time for us, I heard you were from DNR. What's 25 your name again, please? Computer Matrix, LLC Phone: 907-243-0668 135 Christensen Dr., Ste.2-Anch. AK99501 Fax907-243-1473 flmail: sahilelmg,t net AOGCC 6/23/2020 ITMO:PE .N FOR HPARINGON A COMPLAINT OFWASTE 01'H- 19-003 Page 44 1 MS. MEARES: Sure. Terra, T-E-R-R-A, Meares, 2 M-E-A-R-E-S 3 CHAIRMAN PRICE: Okay. Ms. Meares, we're going 4 to talk about that briefly, whether or not we should 5 ask that question of the witness. We're going to call 6 a brief at ease. 7 Before that do we have any additional questions 8 from the public? 9 (No comments) 10 CHAIRMAN PRICE: And just to clarify, Ms. 11 Meares, that sounded like a question for the 12 Commission; is that correct? 13 MS. MEARES: Whoever could best answer it. I -- 14 I apologize. I was just trying to see if that was 15 information that was readily understood by the general 16 audience here because I -- I'm not as familiar. 17 CHAIRMAN PRICE: Okay. Does anyone else from 18 the public wish to give testimony at this time? 19 (No comments) 20 CHAIRMAN PRICE: Having heard none we're going 21 to call a brief at ease, we'll be back in five minutes. 22 (Off record) 23 (On record) 24 CHAIRMAN PRICE: We are back in session. This 25 is Jeremy Price again. So to clarify on the question Computer Matrix. LLC Phone: 907-243-0668 P EmaiC sahile:algci net I?S Chrivlensen Dr., Sic. 2.. Anch.AK 99501 Pas'. 907-243-1473 AOGC'C 6,21,2020 ITMO.PE iNFORHEARINGONACOMI'LAINIOFWASTE OTH 19-003 Page 45 1 to Ms. Meares, first off the regulation on waste 2 disposition can be found in 20.25.235. In short volume 3 and rate are not factors in determining a waste 4 consideration. If you have more questions though in 5 follow-up to that question please contact Dave Roby 6 who's our reservoir engineer. For the purposes of this 7 hearing though that question is not germane to the 8 issues that the Commission is considering at this time. 9 Okay. I'll make one last request. If there 10 are any questions from the public please make it known 11 now 12 (No comments) 13 CHAIRMAN PRICE: Having heard none, any further 14 questions from Commissioners? 15 COMMISSIONER SEAMOUNT: None. 16 CHAIRMAN PRICE: Okay. Thank you, Mr. French. 17 Thank you, members of the public who have participated. 18 The time is 11:28. At this time the hearing is 19 adjourned. 20 (Hearing adjourned - 11:28 a.m.) 21 (END OF PROCEEDINGS) 22 23 24 25 Computer Matrix. LLC Phone: 907-243-0668 115 hrisnsen __ 1),Ste. 2Anch-AK99501 Fax:907-243-147? Emai6 sahilermgci.nel Cte AOGCC 6212020 IT MO .N FOR HEARING ON A C'OMPLA ENTT OIF WIASO 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 46 TRANSCRIBER'S CERTIFICATE I, Salena A. Hile, hereby certify that the foregoing pages numbered 02 through 46 are a true, accurate, and complete transcript of proceedings in Docket number: OTH 19-003; Other order: 151, transcribed under my direction from a copy of an electronic sound recording to the best of our knowledge and ability. Phone: 907-243-0668 Composer Matrix. LLC Fax 907-243-1473 Email sahile(�gm.oel 135 Chnstmseo Dc, Ste.2.. Anch. AK99501 STATE OF ALASKA ALASKA OIL AND GAS CONSERVATION COMMISSION Docket Number: OTH-19-003 June 23, 2020 at 10:00 am NAME AFFILIATION Testify (yes or no) A I � � 1,�6 <),2 �'1 cG N r 1:) J , H l cfjL RECEIVED By Samantha Carlisle at 1:28 pm, Jun 12, 2020 INFORMATION PROVIDED TO ALASKA OIL AND GAS CONSERVATION COMMISSION Re: Notice of Public Hearing, Docket Number: OTH-19-003, Other Order 151 Petition for a Hearing on a Complaint of Waste BP Exploration (Alaska) Inc. (BPXA) provides the following information to the Alaska Oil and Gas Conservation Commission (AOGCC) in connection with the Notice of Public Hearing, Docket Number: OTH- 003, Other Order 151, Petition for a Hearing on a Complaint of Waste. The information is a high-level summary of a Prudhoe Bay well incident that occurred in April 2017. Summary of Well 02-03B Incident and Hydrocarbon Release Prudhoe Bay well 02-03B was drilled by ARCO Alaska, Inc. between July and September 1970, and began production in June 1977. On April 14, 2017, a Prudhoe Bay Unit ("PBU") well pad operator discovered a hydrocarbon release emanating from the top of the well house. BP, as PBU operator, immediately responded along with the Unified Command established for dealing with such incidents. The well was killed by April 17, and two days later a deep-set plug was installed in the well. During the incident no people were injured, and no wildlife were harmed. The well released an estimated 63 gallons of crude, which was confined to the reserve pit and no oil impacted the tundra. The well also released an estimated 1.8 million standard cubic feet of natural gas. Summary of BP's Investigation BP's investigation team determined that the failure of a surface casing coupling located 50-1/2" below the wellhead led to the incident. The investigation team concluded that permafrost subsidence further downhole, and the three -string casing design of the well in which the well's surface casing shoe was set in the permafrost zone, caused the failure of the coupling. When the permafrost zone subsided downhole, it generated a downward force on the surface casing that was resisted by well's inner string, creating a force that resulted in a separation of the surface casing from the inner string. When the inner string decoupled from the surface casing, it caused the wellhead to lift about three feet and contact the roof of the wellhouse. The wellhead's contact with the wellhouse roof damaged the wellhead, which resulted in the release of the referenced hydrocarbons. Summary of BP's Actions There are approximately 1800 wells in Prudhoe Bay, and 22 of those wells have a three -string casing design. That well design dates to the early days of the Prudhoe Bay field and is not in use today. Of the 22 wells that BP determined to have a three -string casing design, 14 wells were determined to have a surface casing shoe set in the permafrost zone. Those 14 wells were immediately shut-in after the April 2017 incident and, in consultation with and at the direction of the Commission, have now been plugged and abandoned. BP Information to AOGCC - Public Hearing, Docket Number: OTH-19-003 Page 1 TOPIC 1: 30 DAY AOGCC REPORT OF ACCIDENTAL OIL AND/OR GAS RELEASE 30-DAY REPORT PER 20ACC 25.205(B) 1.1 Summary of data filed May 15" 2017 by BPXA Description Reported Data Supplemental Comments Date and Time: 4/14/2017 at approx 0700hrs BPXA, in coordination with the Incident management team/unified command, promptly mobilized well control contractors and equipment and developed source control contingencies. On approval by the unified command, the well kill was completed April 17"'. Well Location: Flow Station 1, Drill site 2, Well 3. (Well02-03B) Volume of Oil/Gas released: 1.5 bbls of oil (63 US Gallons) Also cited in FS1 DS2 Well 03 Release Investigation Report 1779mscf of gas dated June 14th 2017 1.2 Summary of FS1 DS2 Well 03 Release Investigation Report Section Quotation BPXA Commentary Section 1 On the morning of April 14, 2017, a Prudhoe Bay BPXA determined there were Incident Unit (PBU) pad operator discovered an uncontrolled two leak paths during this Summary hydrocarbon release emitting from the top of the accident. The first of which was well house of Flow Station (FS) 1 Drill Site (DS) 2 Well above the surface safety valve 03 (Well 02-03B). Venting hydrocarbon was causing (SSV) and was quickly isolated a misting spray of crude oil to land on the well pad. (stopped) when the SSV was closed. Responders activated the surface safety valve (SSV) The second leak point was a which reduced, but did not stop, the release. Later damaged flange connection that day, responders determined that the wellhead located below the well's SSV, and the Xmas tree had moved upwards three feet which required a more complex intervention plan, wellhouse BP Information to AOGCC - Public Hearing, Docket Number: OTH-19-003 Page 2 and collided with the well house roof, resulting in access and source control two leak paths. The uppermost leak was at a method (bull head well kill pressure gauge fitting that had been sheared off once the upper leak point had from the S-riser as it impacted the well house roof. been sealed off) The SSV activation stopped this leak when the pressure in the flowline dissipated. The bottom leak was located below the SSV and, therefore, was not impacted by the SSV closure. The bottom leak was later found to be from the flange between the wellhead tubing head adapter and the Xmas tree lower master valve... Section The cause of the failure of Well 02-03B, as described BPXA have completed Plugging 3.5.1 in the previous sections, was due to permafrost and Abandoning all 14 wells, Discussion subsidence loading effects on the surface casing eliminating the risk string. The investigation team concluded that the failure of the surface casing and upward movement of the wellhead, which resulted in the LOPC (Loss of Primary Containment), occurred because of the three -string casing design's inherent stiffness... ...There are 14 of these wells in PBU (including Well 02-03B) TOPIC 2: BPXA RISK ASSESSMENT ACTIONS TO PREVENT REOCCURRENCE 2.1. Status of PBU Plug & Abandonment wells AOGCC Order OTH-18-062 Well Well Status Date Well P&Xd 02-02A Plug and abandoned 10/30/19 02-03B Plug and abandoned /8/19 01-02 Plug and abandoned 12/1/19 01-04B Plug and abandoned 12/4/19 01-05B Plug and abandoned 12/3/19 02-04A Plug and abandoned 10/24/19 02-05A Plug and abandoned 16/20 02-06C Plug and abandoned 10/19/19 04-01A Plug and abandoned 11/3/19 04-02A Plug and abandoned 11/6/19 BP Information to AOGCC - Public Hearing, Docket Number: OTH-19-003 Page 3 04-03 Plug and abandoned 11/6/19 04-04A Plug and abandoned /20/20 04-05A Plug and abandoned 12/14/19 J-02B Plug and abandoned 12/16/19 2.2. Status of Remaining Three String wells (with Surface casing set near the base of Permafrost) planned for Plug and Abandonment in 2020 Well Well Status Date Well P&A'd 01-03A Plug and abandoned 6/02/20 F-04B Plug and abandoned 6/08/20 M-01 Plug and abandoned 6/19/20 2.3. Well History Well 02-03B (sidetrack of the original well 02-03) was drilled by ARCO Alaska, Inc. (ARCO) between July and September 1970, but was not placed on production until June 1977. The well is a three -string casing design with 30" conductor, 20" surface casing, 13 3/8" intermediate casing, 9 s/8" production casing, and 5 %" production tubing. 2.4. Well Production Well test history prior to the accident indicated —480 BOPD, —6% Water Cut, and a 74000 Gas Oil Ratio. The estimated total volume of gas leaked during the incident is less than 5% of this well's nominal daily gas rate. In the context of the larger Prudhoe Bay Unit, assuming a 7.56CF/day throughput rate, this represents 0.02%of daily production. Aerial view of site BP Information to AOGCC - Public Hearing, Docket Number: OTH-19-003 Page 4 RECEIVED By Samantha Carlisle at 1:26 pm, Jun 22, 2020 INFORMATION PROVIDED TO ALASKA OIL AND GAS CONSERVATION COMMISSION Re: Notice of Public Hearing, Docket Number: OTH-19-003, Other Order 151 Petition for a Hearing on a Complaint of Waste BP Exploration (Alaska) Inc. (BPXA) provides the following information to the Alaska Oil and Gas Conservation Commission (AOGCC) in connection with the Notice of Public Hearing, Docket Number: OTH- 003, Other Order 151, Petition for a Hearing on a Complaint of Waste. The information is a high-level summary of a Prudhoe Bay well incident that occurred in April 2017. Summary of Well 02-03B Incident and Hydrocarbon Release Prudhoe Bay well 02-03B was drilled by ARCO Alaska, Inc. between July and September 1970, and began production in June 1977. On April 14, 2017, a Prudhoe Bay Unit ("PBU") well pad operator discovered a hydrocarbon release emanating from the top of the well house. BP, as PBU operator, immediately responded along with the Unified Command established for dealing with such incidents. The well was killed by April 17, and two days later a deep-set plug was installed in the well. During the incident no people were injured, and no wildlife were harmed. The well released an estimated 63 gallons of crude, which was confined to the reserve pit and no oil impacted the tundra. The well also released an estimated 1.8 million standard cubic feet of natural gas. Summary of BP's Investigation BP's investigation team determined that the failure of a surface casing coupling located 50-1/2" below the wellhead led to the incident. The investigation team concluded that permafrost subsidence further downhole, and the three -string casing design of the well in which the well's surface casing shoe was set in the permafrost zone, caused the failure of the coupling. When the permafrost zone subsided downhole, it generated a downward force on the surface casing that was resisted by well's inner string, creating a force that resulted in a separation of the surface casing from the inner string. When the inner string decoupled from the surface casing, it caused the wellhead to lift about three feet and contact the roof of the wellhouse. The wellhead's contact with the wellhouse roof damaged the wellhead, which resulted in the release of the referenced hydrocarbons. Summary of BP's Actions There are approximately 1800 wells in Prudhoe Bay, and 22 of those wells have a three -string casing design. That well design dates to the early days of the Prudhoe Bay field and is not in use today. Of the 22 wells that BP determined to have a three -string casing design, 14 wells were determined to have a surface casing shoe set in the permafrost zone. Those 14 wells were immediately shut-in after the April 2017 incident and, in consultation with and at the direction of the Commission, have now been plugged and abandoned. BP Information to AOGCC- Public Hearing, Docket Number: OTH-19-003 Page 1 TOPIC 1: 30 DAY AOGCC REPORT OF ACCIDENTAL OIL AND/OR GAS RELEASE 30-DAY REPORT PER 20ACC 25.205(B) 1.1 Summary of data filed May 15`n 2017 by BPXA Description Reported Data Supplemental Comments Date and Time: 4/14/2017 at approx 0700hrs BPXA, in coordination with the Incident management team/unified command, promptly mobilized well control contractors and equipment and developed source control contingencies. On approval by the unified command, the well kill was completed April 17tn Well Location: Flow Station 1, Drill site 2, Well 3. (Well 02-03B) Volume of Oil/Gas released: 1.5 bbis of oil (63 US Gallons) Also cited in FS1 DS2 Well 03 Release Investigation Report 1779mscf of gas dated June 14tn 2017 1.2 Summary of FS1 DS2 Well 03 Release Investigation Report Section Quotation BPXA Commentary Section 1 On the morning of April 14, 2017, a Prudhoe Bay BPXA determined there were Incident Unit (PBU) pad operator discovered an uncontrolled two leak paths during this Summary hydrocarbon release emitting from the top of the accident. The first of which was well house of Flow Station (FS) 1 Drill Site (DS) 2 Well above the surface safety valve 03 (Well 02-03B). Venting hydrocarbon was causing (SSV) and was quickly isolated a misting spray of crude oil to land on the well pad. (stopped) when the SSV was closed. Responders activated the surface safety valve (SSV) The second leak point was a which reduced, but did not stop, the release. Later damaged flange connection that day, responders determined that the wellhead located below the well's SSV, and the Xmas tree had moved upwards three feet which required a more complex intervention plan, wellhouse BP Information to AOGCC - Public Hearing, Docket Number: OTH-19-003 Page 2 and collided with the well house roof, resulting in access and source control two leak paths. The uppermost leak was at a method (bull head well kill pressure gauge fitting that had been sheared off once the upper leak point had from the S-riser as it impacted the well house roof. been sealed off) The SSV activation stopped this leak when the pressure in the flowline dissipated. The bottom leak was located below the SSV and, therefore, was not impacted by the SSV closure. The bottom leak was later found to be from the flange between the wellhead tubing head adapter and the Xmas tree lower master valve... Section The cause of the failure of Well 02-038, as described BPXA have completed Plugging 3.5.1 in the previous sections, was due to permafrost and Abandoning all 14 wells, Discussion subsidence loading effects on the surface casing eliminating the risk string. The investigation team concluded that the failure of the surface casing and upward movement of the wellhead, which resulted in the LOPC (Loss of Primary Containment), occurred because of the three -string casing design's inherent stiffness... ...There are 14 of these wells in PBU (including Well 02-03B) TOPIC 2: BPXA RISK ASSESSMENT ACTIONS TO PREVENT REOCCURRENCE 2.1. Status of PBU Plug & Abandonment wells AOGCC Order OTH-18-062 Well Well Status Date Well P&A'd 02-02A Plug and abandoned 10/30/19 02-03B Plug and abandoned /8/19 01-02 Plug and abandoned 12/1/19 01-04B Plug and abandoned 2/4/19 01-05B Plug and abandoned 2/3/19 02-04A Plug and abandoned 0/24/19 02-05A Plug and abandoned 16/20 02-06C Plug and abandoned 10/19/19 04-01A Plug and abandoned 1/3/19 04-02A Plug and abandoned 1/6/19 BP Information to AOGCC- Public Hearing, Docket Number: OTH-19-003 Page 3 04-03 1 Plug and abandoned 11/6/19 04-04A Plug and abandoned /20/20 04-05A Plug and abandoned 12/14/19 J-028 Plug and abandoned 12/16/19 2.2. Status of Remaining Three String wells (with Surface casing set near the base of Permafrost) planned for Plug and Abandonment in 2020 Well Well Status Date Well P&A'd 01-03A Plug and abandoned 6/02/20 F-04B Plug and abandoned 6/08/20 M-01 Plug and abandoned 6/19/20 2.3. Well History Well 02-03B (sidetrack of the original well 02-03) was drilled by ARCO Alaska, Inc. (ARCO) between July and September 1970, but was not placed on production until June 1977. The well is a three -string casing design with 30" conductor, 20" surface casing, 13 3/8" intermediate casing, 9 s/s" production casing, and 5 %:" production tubing. 2.4. Well Production Well test history prior to the accident indicated -480 BOPD, -6% Water Cut, and a 74000 Gas Oil Ratio. The estimated total volume of gas leaked during the incident is less than 5% of this well's nominal daily gas rate. In the context of the larger Prudhoe Bay Unit, assuming a 7.5BCF/day throughput rate, this represents 0.02% of daily production. Aerial view of site BP Information to AOGCC - Public Hearing, Docket Number: OTH-19-003 Page 4 April 8, 2019 AOGCC 333 W. 71b Avenue Anchorage, AK 99501 RE: Docket number OTH-19-003 To whom it may concern, 2640 Telequana Drive Anchorage, AK 99517 RECEIVE® APR 0 8 2019 AOGCC The beauty of the word 'shall' is that it does not offer many alternatives. Here's what the law says: "The commission may act upon its own motion, or upon the petition of an interested person. On the filing of a petition concerning a matter within the jurisdiction of the commission under this chapter, the commission shall promptly fix a date for a hearing, and shall cause notice of the hearing to be given." AS 31.05.060(a). In denying my petition for a hearing on a case of waste from the BP well known as DS02-0313, the agency claims to be investigating the same incident. The commission seems to be referring to OTH-18-064. The subject of that docket, however, is "the mechanical integrity of Prudhoe Bay wells operated by BP Exploration (Alaska), Inc." The commission seems to be implying that this petition is repetitive of matters being considered in another docket. Fair enough. The commission need only inform undersigned of the date, time, and place of that portion of the investigation into BP's mechanical integrity problems at Prudhoe Bay that concerns wasted gas from well 02-03B. In other words, when, exactly, does the commission plan to get around to dealing with this important question? Either way, under either docket, the commission must schedule a hearing on this incident of waste. Failing to do so would be an abuse of the commission's discretion. Reconsider. r Hollis French STATE OF ALASKA ALASKA OIL AND GAS CONSERVATION COMMISSION 333 West Seventh Avenue Anchorage, Alaska 99501 Re: Petition for a Hearing on a Complaint ) Other Order 151 of Waste. AS 31.05.60(a). ) Docket Number: OTH-19-003 March 20, 2019 On March 1, 2019, the Alaska Oil and Gas Conservation Commission (AOGCC) received a "petition for a hearing on a complaint of waste," dated February 28, 2019, from Hollis S. French (French). French alleges "waste occurred from a well identified as DS02-03B, operated by BP Exploration (Alaska) Inc." According to French, "the well leaked gas to the atmosphere at a very high rate for several days beginning April 14, 2017." French demands a hearing to be allowed to urge AOGCC to take action upon his complaint. The circumstances surrounding the release of gas from the DS02-03B well are the subject of an on -going AOGCC investigation. A hearing prior to the conclusion of that investigatio e premature. French's request for hearing is DENIED. 7� ��r Danie�e mount, Jr. Jesc4e L. Chmielowski Commissioner Commissioner RECONSIDERATION AND APPEAL As provided in AS 31.05.080(a), within 20 days after written notice of the entry of this order or decision, or such further time as the AOGCC grants for good cause shown, a person affected by it may file with the AOGCC an application for reconsideration of the matter determined by it. If the notice was mailed, then the period of time shall be 23 days. An application for reconsideration must set out the respect in which the order or decision is believed to be erroneous. The AOGCC shall grant or refuse the application for reconsideration in whole or in part within 10 days after it is filed. Failure to act on it within 10-days is a denial of reconsideration. If the AOGCC denies reconsideration, upon denial, this order or decision and the denial of reconsideration are FINAL and may be appealed to superior court. The appeal MUST be filed within 33 days after the date on which the AOGCC mails, OR 30 days if the AOGCC otherwise distributes, the order or decision denying reconsideration, UNLESS the denial is by inaction, in which case the appeal MUST be filed within 40 days after the dale on which the application for reconsideration was filed. If the AOGCC grants an application for reconsideration, this order or decision does not become final. Rather, the order or decision on reconsideration will be the FINAL order or decision of the AOGCC, and it may be appealed to superior court. That appeal MUST be filed within 33 days after the date on which the AOGCC mails, OR 30 days if the AOGCC otherwise distributes, the order or decision on reconsideration. In computing a period of time above, the date of the event or default after which the designated period begins to run is not included in the period; the last day of the period is included, unless it falls on a weekend or state holiday, in which event the period =a until 5:00 STATE OF ALASKA ALASKA OIL AND GAS CONSERVATION COMMISSION 333 West Seventh Avenue Anchorage, Alaska 99501 Re: Petition for a Hearing on a Complaint ) Other Order 151 of Waste. AS 31.05.60(a). ) Docket Number: OTH-19-003 March 20, 2019 On March 1, 2019, the Alaska Oil and Gas Conservation Commission (AOGCC) received a "petition for a hearing on a complaint of waste," dated February 28, 2019, from Hollis S. French (French). French alleges "waste occurred from a well identified as DS02-0313, operated by BP Exploration (Alaska) Inc." According to French, "the well leaked gas to the atmosphere at a very high rate for several days beginning April 14, 2017." French demands a hearing to be allowed to urge AOGCC to take action upon his complaint. The circumstances surrounding the release of gas from the DS02-03B well are the subject of an on -going AOGCC investigation. A hearing prior to the conclusion of that investigation would be premature. French's request for hearing is DENIED. //signature on file// Daniel T. Seamount, Jr. Commissioner //signature on file// Jessie L. Chmielowski Commissioner 0LLgyo 9 y>fON GV�, As provided in AS 31.05.080(a), within 20 days after written notice of the entry of this order or decision, or such further time as the AOGCC giants for good cause shown, a person affected by it may file with the AOGCC an application for reconsideration of the matter determined by it. If the notice was mailed, then the period of time shall be 23 days. An application for reconsideration must set out the respect in which the order or decision is believed to be erroneous. The AOGCC shall grant or refuse the application for reconsideration in whole or in part within 10 days after it is filed. Failure to act on it within 10-days is a denial of reconsideration. If the AOGCC denies reconsideration, upon denial, this order or decision and the denial of reconsideration are FINAL and may be appealed to superior court. The appeal MUST be filed within 33 days after the date on which the AOGCC mails, OR 30 days if the AOGCC otherwise distributes, the order or decision denying reconsideration, UNLESS the denial is by inaction, in which case the appeal MUST be filed within 40 days after the date on which the application for reconsideration was filed. If the AOGCC grants an application for reconsideration, this order or decision does not become final. Rather, the order or decision on reconsideration will be the FINAL order or decision of the AOGCC, and it may be appealed to superior court. That appeal MUST be filed within 33 days after the date on which the AOGCC mails, OR 30 days if the AOGCC otherwise distributes, the order or decision on reconsideration. In computing a period of time above, the date of the event or default after which the designated period begins to ran is not included in the period; the last day of the period is included, unless it falls on a weekend or state holiday, in which event the period runs until 5:00 Bernie Karl K&K Recycling Inc. P.O. Box 58055 Fairbanks, AK 99711 George Vaught, Jr. P.O. Box 13557 Denver, CO 80201-3557 Gordon Severson 3201 Westmar Cir. Anchorage, AK 99508-4336 Darwin Waldsmith P.O. Box 39309 Ninilchik, AK 99639 Penny Vadla 399 W. Riverview Ave. Soldotna, AK 99669-7714 Richard Wagner P.O. Box 60868 Fairbanks, AK 99706 Colombie Jody J (DOA) From: Colombie, Jody J (DOA) Sent: Tuesday, March 12, 2019 11:11 AM To: 'Hollis French' Subject: RE: hearing dates? Hollis, The petitions are still under consideration by the Commissioners. Jody From: Hollis French <hsfrench@gmail.com> Sent: Tuesday, March 12, 2019 8:29 AM To: Colombie, Jody J (DOA) <jody.colombie@alaska.gov>; Carlisle, Samantha J (DOA) <samantha.carlisle@alaska.gov> Subject: hearing dates? Jody and Sam, I'm writing to see if the commission has set dates for the petitions I submitted. Hollis French RE 'VED By Samantha Carlisle at 11:40 am, Jun 19, 2020 2640 Telequana Drive Anchorage, AK 99517 February 28, 2019 Ms. Megan McPhee c/o AOGCC 333 W. 7"' Avenue Anchorage, AK 99501 Dear Megan, This document is a petition for a hearing on a complaint of waste. AS 31.05.060(a). The waste occurred from a well identified as DS02-0313, operated by BP Alaska. The well leaked gas to the atmosphere at a very high rate for several days beginning April 14, 2017. Please open a docket for this petition, and inform me of the date of the hearing. At the hearing, I will be urging the commission to take action upon this complaint. Sincerely yours, Hollis S. French 2640 Telequana Drive Anchorage, AK 99517 February 28, 2019 Ms. Megan McPhee c/o AOGCC 333 W. 7 h Avenue Anchorage, AK 99501 Dear Megan, This document is a petition for a hearing on a complaint of waste. AS 31.05.060(a). The waste occurred from a well identified as DS02-03B, operated by BP Alaska. The well leaked gas to the atmosphere at a very high rate for several days beginning April 14, 2017. Please open a docket for this petition, and inform me of the date of the hearing. At the hearing, I will be urging the commission to take action upon this complaint. Sincerely yours, Hollis S. French STATE OF ALASKA A]LASKA OIL AND GAS CONSERVATION COMMISSION 333 West Seventh Avenue Anchorage, Alaska 99501 Re: Petition for a Hearing on a Complaint ) Other Order 151 of Waste. AS 31.05.60(a). ) Docket Number: OTH-19-003 March 20, 2019 On March 1, 2019, the Alaska Oil and Gas Conservation Commission (AOGCC) received a "petition for a hearing on a complaint of waste," dated February 28, 2019, from Hollis S. French (French). French alleges "waste occurred from a well identified as DS02-0313, operated by BP Exploration (Alaska) Inc." According to French, "the well leaked gas to the atmosphere at a very high rate for several days beginning April 14, 2017." French demands a hearing to be allowed to urge AOGCC to take action upon his complaint. The circumstances surrounding the release of gas from the DS02-03B well are the subject of an on -going AOGCC investigation. A hearing prior to the conclusion of that investigatio e Premature. French's request for hearing is DENIED. Daniel T. Seamount, Jr. Jesie L. Chmielowski Commissioner Commissioner tsaa:vrvMVLRATION AND APPEAL NOTICE As provided in AS 31.05.080(a), withbh 20 days after written notice of the may of this order or decision, or such further time as the AOGCC grants for good cause shown, a person affected by it may file with the AOGCC an application for reconsideration of the matter determined by it. If the notice was mailed, then the period of time shall be 23 days. An application for reconsideration must set out the respect in which the order or decision is believed to be erroneous. The AOGCC shall grant or refuse the application for reconsideration in whole or in part within 10 days after it is filed. Failure to act on it within 10-days is a denial of reconsideration. If the AOOCC denies reconsideration, upon denial, this order or decision Said the denial of reconsideration are FINAL and may be appealed to superior court. The appeal MUST be filed within 33 days after the date on which the AOGCC mails, OR 30 days if the AOGCC otherwise distributes, the order or decision denying reconsideration, UNLESS the denial is by inaction, in which case the appeal MUST be fled within 40 days after the date on which the application for reconsideration was filed If the AOGCC grants an application for reconsideration, this order or decision does not become final. Rather, the order or decision on reconsideration will be the FINAL order or decision of the AOGCC, and it tray be appealed to superior court That appeal MUST be on reconsideration. filed within 33 days after the date on which the AOGCC mails, OR 30 days if the AOGCC otherwise distributes, the order or decision In computing a period of time above, the date of the event or default after which the designated period begins to ran is not included in the period; the last day of the period is included, miles, it falls on a weekend or state holiday, in which event the period nms until P.M. on the next day that till— om �n .... a ..,mnsa __ L April 8, 2019 AOGCC 333 W. 7Th Avenue Anchorage, AK 99501 RE: Docket number OTH-19-003 To whom it may concern, 2640 Telequana Drive Anchorage, AK 99517 1-4 C, E V F . APR 0 8 2019 A(')GCF The beauty of the word'shalI' is that it does not offer many alternatives. Here's what the law says: "The commission may act upon its own motion, or upon the petition of an interested person. On the filing of a petition concerning a matter within the jurisdiction of the commission under this chapter, the commission shall promptly fix a date for a hearing, and shall cause notice of the hearing to be given." AS 31.05.060(a). In denying my petition for a hearing on a case of waste from the BP well known as DS02-0313, the agency claims to be investigating the same incident. The commission seems to be referring to OTH-18-064. The subject of that docket, however, is "the mechanical integrity of Prudhoe Bay wells operated by BP Exploration (Alaska), Inc." The commission seems to be implying that this petition is repetitive of matters being considered in another docket. Fair enough. The commission need only inform undersigned of the date, time, and place of that portion of the investigation into BP'-1 mechanical integrity problems at Prudhoe Bay that concerns wasted gas from well 02-03B. In other words, when, exactly, does the commission plan to get around to dealing with this important question? Either way, under either docket, the commission must schedule a hearing on this incident of waste. Failing to do so would be an abuse of the commission's discretion. Reconsider. Hollis French 3 IN THE SUPERIOR COURT FOR THE STATE OF ALASKA THIRD JUDICIAL DISTRICT AT ANCHORAGE HOLLIS S. FRENCH, Appellant, V. ALASKA OIL AND GAS CONSERVATION COMMISSION, Appellee. Agency Case: OTH-19-003 Appeal Case: 3AN-19-6694CI APPEAL FROM THE ALASKA OIL AND GAS CONSERVATION COMMISSION Filed on the day of Anchorage Superior Court Clerk of the Superior Court By APPELLANT'S BRIEF Hollis S. French 2640 Telequana Drive Anchorage, Alaska 99517 (907)244-7135 AK Bar No. 9606033 2019 Deputy Clerk TABLE OF CONTENTS TABLE OF CONTENTS.......................................................... i TABLE OF AUTHORITIES...................................................... ii AUTHORITIES PRINCIPALLY RELIED UPON ............................. iv JURISDICTIONAL STATEMENT ............................................. 1 ISSUES PRESENTED FOR REVIEW .......................................... 1 STATEMENT OF THE CASE ................................................... I ARGUMENT....................................................................... 4 I. AOGCC Erred By Failing To Calendar A Hearing On Waste From ANorth Slope Well............................................................... 4 A. `Shall' means `shall.' ............................................... 4 B. The directory/mandatory distinction does not apply inthis case.......................................................... 6 C. AOGCC's stated reason for denying appellant a hearing, if allowed to stand, would eviscerate the statute ............... 6 CONCLUSION..................................................................... 8 i 5 TABLE OF AUTHORITIES FEDERAL CASES Anderson v. Yungkau, 329 U.S. 482 (1947) Escoe v. Zerbst, 295 U.S. 490 (1935) Brower v. Evans, 257 F.3d 105 (9`h Cir. 2001) ALASKA CASES 0 0 5 Alyeska Pipeline Service Co. v. State, 288 P.3d 736, 740 (Alaska 2012) 2 Fowler v. City of Anchorage, 583 P.2d 817 (Alaska 1978)--------------- 4 In re Wiederholt, 24 P.3d 1219 (Alaska 2001) Kim v. Alyeska, 197 P.3d 193 (Alaska 2008) 7 l3 S. Anchorage Coal. v. Municip. of Anchorage, 172 P. 3d 768 (Alaska 2007)------------------------------------------------------------------- 6 State, Div. of Ins. v. Schnell, 8 P.3d 351 (Alaska 2000)------------------ 6 Tesoro Alaska Petroleum v. Kenai Pipeeine, 746 P.2d 896 (Alaska 1987)------------------------------------------------------------------ 5 Union Oil Co. of Cal. v. Dept. of Revenue, 560 P.2d 21 (Alaska 1977) 3 CASES FROM OTHER JURISDICTIONS Anderson v. Robitaille, 2019 WL 1087486 5 Colorado Real Estate Commission v. Vizzi, 2019 WL 1087061-------- 5 Dwyer v. Culpeper, 825 S.E. 2d 79 (Virginia 2019)---------------------- 5 Glasson v. Board of Equalization, 302 Neb. 869 (Nebraska 2019) ----- 5 ii ( Grant v. Dimas, 2019 IL App. (Is) 180799, 2019 WL 911041--------- 5 Illinois v. Grant, 2019 IL App. (2d) 170766, 2019 WL 1219511 ------ 5 Reyes v. Commonwealth, 823 S.E.2d 243 (Virginia 2019)------------- 5 State v. PW, 434 P.3d 1083, 1088 (Court of Appeals of Washington, Div. 2, 2019)------------------------------------------------------------------- 5 State ex. rel. Howard v. Turner, 2109 WL 1062444--------------------- 5 STATUTES AS 31.05.060(a) OTHER AUTHORITIES AOGCC Other Order 149 American Heritage Dictionary, 4`i' Edition, 2002 4, 6, 8 7 E 3B Shambie Singer, Sutherland Statutes and Statutory Construction (8t' ed. 2018)------------------------------------------------------------------ 5 iii AUTHORITIES PRINCIPALLY RELIED UPON ALASKA STATUTE 31.05.060(a) The commission may act upon its own motion or upon the petition of an interested person. On the filing of a petition concerning a matter within the jurisdiction of the commission under this chapter, the commission shall promptly fix a date for the hearing, and shall cause notice of the hearing to be given. The hearing shall be held without undue delay after the filing of a petition. The commission shall enter its order within 30 days after the hearing. 3B SHAMBIE SINGER, SUTHERLAND STATUTES AND STATUTORY CONSTRUCTION §67:2 (8TH ED. 2018) (in pertinent part) The word "shall' ordinarily imposes an imperative duty. However, "shall" does not have an exclusive, fixed, or inviolate connotation and its meaning in particular cases is determined from the intent of the legislature as shown by the context within which the word appears. 3B SHAMBIE SINGER, SUTHERLAND STATUTES AND STATUTORY CONSTRUCTION §73:10 (8TH ED. 2018) (in pertinent part) Language of a public affairs statute that is prohibitory and jurisdictional is usually mandatory, and language relating to procedure is usually directory, absent a contrary legislative intent. The word "shall' ordinarily imposes an imperative duty. iv 0 JURISDICTIONAL STATEMENT This appeal is from a final administrative decision by the Alaska Oil and Gas Conservation Commission ("AOGCC"), designated as Other Order 151 and issued March 20, 2019. Appellant timely filed an application for reconsideration April 8, 2019, to which the AOGCC did not respond. The application for re- consideration was deemed denied ten days later, or April 18, 2019. This appeal, filed April 22, 2019, followed. This Court has jurisdiction over this appeal under AS 44.62.560(a); AS 22.10.020(d); and Ak. R. App. P. 601(b). ISSUES PRESENTED FOR REVIEW Was AOGCC's denial of appellant's petition for a hearing on a case of waste contrary to the governing law. STATEMENT OF THE CASE Appellant filed a petition for a hearing on a complaint of waste with the Alaska Oil and Gas Conservation Commission on February 28, 2019. The petition identified the source of the waste as gas that leaked to atmosphere from a well identified as DS02-0313, operated by BP Alaska. In denying appellant's petition for a hearing, AOGCC issued Other Order 151 in which it stated that "[tjhe circumstances surrounding the release of gas from the DS02-03B well are the subject of an on -going AOGCC investigation. A hearing prior to the conclusion of that investigation would be premature." i Appellant filed for reconsideration of AOGCC's denial of appellant's petition for a hearing. The application for reconsideration stated: In denying my petition for a hearing on a case of waste from the BP well known as DS02-0313, the agency claims to be investigating the same incident. The commission seems to be referring to OTH-18-064. The subject of that docket, however, is `the mechanical integrity of Prudhoe Bay wells operated by BP Exploration (Alaska), Inc.' The commission seems to be implying that this petition is repetitive of matters being considered in another docket. Fair enough. The commission need only inform undersigned of the date, time, and place of that portion of the investigation into BP's mechanical integrity problems at Prudhoe Bay that concerns wasted gas from well 02-03B. In other words, when, exactly, does the commission plan to get around to dealing with this important question?2 The commission did not respond to the application for reconsideration. STANDARD OF REVIEW The issue before this court is one of statutory construction. "When reviewing an agency's interpretation of a statute, we apply the reasonable basis standard when the interpretation implicates agency expertise or a determination of fundamental policies within the scope of the agency's statutory functions. We apply the independent judgment standard when `the agency's specialized Record at 0002. 2 Record at 0001. 2 l0 knowledge and experience would not be particularly probative on the meaning of the statute. ,,3 Deciding whether to grant a hearing does not implicate the expertise of the AOGCC.4 Thus the independent judgment standard applies. 3 Alyeska Pipeline Service Co. v. State, 288 P.3d 736, 740 (Alaska 2012)(footnotes omitted). 4 "[W]here, as here, the issues to be resolved turn on statutory interpretation, the knowledge and expertise of the agency is not conclusive of the intent of the legislature in passing a statute. Statutory interpretation is within the scope of the court's special competency, and it is our duty to consider the statute independently." Union Oil Co. of Cal. v. Dept. of Revenue, 560 P.2d 21, 23 (Alaska 1977)(footnote omitted). 3 ARGUMENT I. AOGCC Erred By Failing To Calendar A Hearing On Waste From A North Slope Well. A. `Shall' means `shall'. This appeal turns on the meaning to be given by this court to one word: shall. If shall retains its traditional meaning -- must -- then the court will order AOGCC to calendar a hearing. The law in question says: On the filing of a petition concerning a matter within the juris- diction of the commission under this chapter, the commission shall promptly fix a date for the hearing, and shall cause notice of the hearing to be given. s Relying on this language, appellant filed a petition concerning a matter within the jurisdiction of the commission. The commission denied appellant's petition without granting a hearing. The commission, lacking any legal expertise, may be unaware that the United States Supreme Court long ago declared that "[t]he word `shall' is ordinarily `the language of command.`6 The Alaska Supreme Court agrees: "Unless the context otherwise indicates, the use of the word `shall' denotes a mandatory intent."' 5 AS 31.05.060(a)(in relevant part)(emphasis supplied). 6 Anderson v. Yungkau, 329 U.S. 482 (1947)(quoting Escoe v. Zerbst, 295 U.S. 490 (1935)) 7 Fowler v. City of Anchorage, 583 P.2d 817, 820 (1978). 4 Sutherland's treatise on statutory construction iterates and reiterates that "[t]he word `shall' ordinarily imposes an imperative duty.i8 "Imperative" is a adjective meaning, among other things, "expressing a command."9 This is a case of statutory construction. "The goal of statutory construction is to give effect to the legislature's intent, with due regard for the meaning the statutory language conveys to others. In this respect, we have repeatedly stated that unless words have acquired a peculiar meaning, by virtue of statutory definition or judicial construction, they are to be construed in accordance with their common usage."10 `Shall' has not acquired a peculiar meaning. `Shall' commonly means `must'. Cases in which courts construe `shall' to mean what it commonly means are legion.' 1 (Note that the citations are all from the year 2019.) To conclude this section: "'Shall' means shall.i12 8 313 Shambie Singer, Sutherland Statutes and Statutory Construction §67:2, §73.10 (80i ed. 2018) 9 American Heritage Dictionary, 40i Edition 2002, p. 695. 10 Tesoro Alaska Petroleum v. Kenai Pipeline, 746 P.2d 896, 905 (Alaska 1987)(internal citation omitted). "Anderson v. Robitaille, 2019 WL 1087486 at *3; Colorado Real Estate Commission v. Vizzi, 2019 WL 1087061 at *4; Dwyer v. Culpeper, 825 S.E. 2d 79, 80 (Virginia 2019); Glasson v. Board of Equalization, 302 Neb. 869, 874 (Nebraska 2019); Grant v. Dimas, 2019 IL App. (0) 180799, 2019 WL 911041 at * 13; Reyes v. Commonwealth, 823 S.E.2d 243, 249 (Virginia 2019); State v. PMP, 434 P.3d 1083, 1088 (Court of Appeals of Washington, Div. 2, 2019); State ex. rel. Howard v. Turner, 2109 WL 1062444 at * 1. 12 Brower v. Evans, 257 F.3d 105, fn. 10 (9" Cir. 2001) 5 13 B. The directory/mandatory distinction does not apply in this case. There is a narrow band of cases in which `shall' is held to be "directory and not mandatory.i13 The distinction has little or no bearing on the appeal before this court, because "[i]f a statute is mandatory, strict compliance is required; if it is directory, substantial compliance is acceptable absent significant prejudice to the other party.s14 The distinction does not apply in this case because AOGCC denied appellant a hearing altogether, meaning there has been no compliance with the commands of AS 31.05.060(a). The AOGCC order did not allege significant prejudice to the agency if it were to schedule a hearing on the waste from BP's well. Appellant would be satisfied with either strict or substantial compliance with the mandate of AS 31.05.060(a). In other words, the distinction is moot. C. AOGCC's stated reason for denying appellant a hearing, if allowed to stand, would eviscerate the statute. AOGCC's Other Order 151, dated March 20, 2019, denied appellant a hearing on his March 1, 2019, petition. The agency's stated rationale was that "the circumstances surrounding the release of gas from the DS02-03 well are the subject of an on -going AOGCC investigation. A hearing prior to the conclusion 13 State, Div. of Ins. v. Schnell, 8 P.3d 351, 357 (Alaska 2000). See also In re Wiederholt, 24 P.3d 1219 at 1233 (Alaska 2001) and Kim v. Alyeska, 197 P.3d 193 at 196-7 (Alaska 2008). 14 S. Anchorage Coal. v. Municip. of Anchorage, 172 P. 3d 768, 772 (Alaska 2007) 6 iy of that investigation would be premature." AOGCC provided no other details about the investigation in its order. On reconsideration, filed April 8, 2019, appellant hazarded a guess that the investigation referred to in Other Order 151 might be an AOGCC docket designated as OTH-18-064. In that docket the agency was conducting a review of the mechanical integrity of Prudhoe Bay wells, including the well DS02-03B, operated by BP Exploration (Alaska), Inc. Unfortunately, AOGCC did not respond to the motion for reconsideration, leaving the `investigation' undefined. The dates of appellant's petition and motion for reconsideration are important because docket OTH-18-064 was closed with an order from the agency signed February 28, 2019.15 Thus, if, in its March 20 order denying appellant's petition for a hearing, the agency was referring to docket OTH-18-064, then the `on -going investigation' explanation doesn't hold water, because the agency had already issued an order closing out that investigation on February 28, prior to the filing of the petition for a hearing and the motion for reconsideration. If the agency is referring to some other, new investigation, that is likewise not a reason to deny appellant a hearing on a complaint of waste. The commands of AS 31.05.060(a) would be rendered meaningless if the agency could dodge them by vaguely claiming that the matter put forth in a petition was `under is AOGCC Other Order 149, aogweb.state.ak.us/ogc/orders/oo/data/other149.pdf 7 15 investigation.' Moreover, there is nothing inconsistent with granting a hearing on appellant's petition while a related investigation is on -going. CONCLUSION The Alaska Oil and Gas Conservation Commission erred by failing to calendar a hearing on waste from a North Slope well. The language of AS 31.05.060(a) is clear. The court should reaffirm that `shall' means `shall' and the agency should be ordered to calendar a hearing in conformance with the law. DATED: July 10, 2019 Hollis S. French Bar No. 9606933 Pursuant to Ak. R. App. P. 513.5(c)(2), I hereby certify that Appellant's Brief is in 13 point Ti New Rwnan. Hollis S. French 8 1� IN THE SUPERIOR COURT FOR THE STATE OF ALASKA THIRD JUDICIAL DISTRICT AT ANCHORAGE HOLLIS FRENCH, Appellant, V. ALASKA OIL AND GAS CONSERVATION COMMISSION, Appellee, Appeal Case No. 3AN-19-06531 Cl APPEAL FROM THE ALASKA OIL AND GAS CONSERVATION COMMISSION APPELLEE'S BRIEF KEVIN G. CLARKSON dl�ll Thomas A. Ballantine (8806122) Senior Assistant Attorney General Department of Law 1031 West Fourth Avenue, Suite 200 Anchorage, AK 99501 (907)269-5255 Filed in the Superior Court of the State of Alaska on September _, 2019 Deputy Clerk I TABLE OF CONTENTS TABLEOF AUTHORITIES .................................... ......... .............. ..................... I .... ......... n AUTHORITIES PRINCIPALLY RELIED UPON ................ JURISDICTIONALSTATEMENT.................................................................................... 1 ISSUESPRESENTED FOR REVIEW .......................................... ..... ......... I .... I ... ........... .. 1 STATEMENTOF THE CASE........................................................................................... 2 1. Summary ....................................................................................................... 2 2. Facts.............................................................................................................. 3 STANDARDSOF REVIEW.............................................................................................. 6 ARGUMENT...................................................................................................................... 7 A. The reasonable basis standard of review applies .......................................... 7 B. The language of AS 31.05.060(a) is directory, not mandatory ..................... 8 C. French's analysis is contrary to law, contradicted by the record and deeply flawed.......................................................................................................... 12 CONCLUSION................................................................................................................. 15 IF TABLE OF AUTHORITIES Cases Alyeska Pipeline Serv. Co. v. State, 288 P.3d 736, 740 (Alaska 2012)......................................................................... 6,7 City of Yakutat v. Ryman, 654 P.2d 785, 789-91 (Alaska 1982)....................................................................... 9 Copper River Sch. Dist. v. State, 702 P.2d 625, 627 (Alaska 1985)............................................................................. 9 Davis Wright Tremaine LLP v. State, Dept. of Admin., 324 P.3d 293, 299 (Alaska 2014)......................................................................... 6,7 In re Reinstatement of Wiederholt, 24 P.3d 1219, 1233 (Alaska 2001)........................................................................... 9 Marathon Oil Co. v. State, Dept. of Nat. Res., Div. Oil & Gas, 254 P.3d 1078, 1082 (Alaska 2011)..................................................................... 6,7 South Anchorage Concerned Coalition, Inc. v. Municipality of Anchorage, 172 P.3d 768, 771-72 (Alaska 2007)....................................................................... 9 State, Dep't of Commerce & Econ. Dev., Div. of Ins. v, Schnell, 8 P.3d 351, 357 (Alaska 2000)................................................................................. 9 Tesoro Alaska Petroleum Co. v. Kenai Pipe Line Co., 746 P.2d 896, 903 (Alaska 1987)............................................................................. 7 Alaska Statutes AS22.10.020(d).................................................................................................................. 1 AS31.05.060.............................................................................................................. passim AS31.05.150(d)................................................................................................................ 11 AS44.62.330 - 44.62,630................................................................................................... I AS44.62.560(a).................................................................................................................. 1 Alaska Court Rules Ak.R.App.P. 601(b)............................................................................................................. 1 ii 19 AUTHORITIES PRINCIPALLY RELIED UPON Alaska Statutes: AS 31.05.060: Action by Commission. (a) The commission may act upon its own motion, or upon the petition of an interested person. On the filing of a petition concerning a matter within the jurisdiction of the commission under this chapter, the commission shall promptly fix a date for a hearing, and shall cause notice of the hearing to be given. The hearing shall be held without undue delay after the filing of the petition. The commission shall enter its order within 30 days after the hearing. (b) Except as provided in this subsection, any action by the commission under this chapter that has statewide or general application shall be performed in accordance with AS 44.62 (Administrative Procedure Act). Any action by the commission under this chapter that has application to a single well or single field need not comply with the provisions of AS 44,62.330 - 44.62.630, but shall be performed in accordance with regulations of the commission designed to afford persons affected by the action notice and an opportunity to be heard. (c) Notwithstanding the requirements of (a) and (b) of this section that relate to fixing a date for a hearing and causing notice of the hearing to be given, for an action under this chapter that involves the exploration for or development of nonconventional gas and that has application to a single well or a single field, upon the request of a lessee or operator, the commission may, where operations might be unduly delayed, approve a variance from the commission's regulations that apply to the well or field without providing notice and opportunity to be heard. In the exercise of its authority to issue the variance, (1) the commission may approve the variance if (A) the approval provides at least an equally effective means of accomplishing the requirement set out in the commission's regulation; or (B) the commission determines that the request is more appropriate to the proposed operation than compliance with the requirement of the regulation; and (2) the terms of the approval of the variance may include exempting the lessee or operator from a requirement of a regulation if the commission determines that the requirement is not necessary or not suited to the well or field taking into consideration (A) the nature of the operation involved; (B) the characteristics of the well or field for which the variance is sought; and (C) the reasonably anticipated risks of the exemption from the requirement to human safety and the environment. (d) The provisions of (c) of this section do not apply to authorize approval of a variance from the commission's regulations that relate to underground injection. ui 2� Alaska Rules: Ak.R.App.P. 601(b): Scope of Part Six. (b) An appeal may be taken to the superior court from a final judgment entered by the district court, in the circumstances specified in AS 22.15.240, or from a final decision of an administrative agency, except that appeals from decisions of the Alaska Workers' Compensation Appeals Commission shall be taken to the supreme court under AS 23.30.129 and are governed by parts Two and Five of these rules. iv L , JURISDICTIONAL STATEMENT Hollis S. French (French) appeals the entry of Other Order 151 by the Alaska Oil and Gas Conservation Commission (AOGCC) on March 20, 2019. French had requested a hearing on "waste" he claims occurred when gas escaped as a result of the well failure at the DS 02-03B well (DS 02-03B) in April, 2017. DS 02-03B is operated by British Petroleum Exploration Alaska Inc. (BPXA). Any waste assessment requires a determination of causation. AOGCC denied French's request for a hearing because AOGCC is still investigating the cause of the well failure. Other Order 151 is a final administrative decision, but does not dispose of the substantive issue raised, i.e., whether waste occurred during the April, 2017 DS 02-03B failure. This court has jurisdiction pursuant to AS 22.10.020(d) and Ak.R.App.P. 601(b).1 ISSUES PRESENTED FOR REVIEW Whether the requirement of AS 31.05.060(a) that AOGCC hold a hearing is directory or mandatory. 2. Whether AOGCC, a regulatory enforcement agency, can be required to hold a hearing on a matter under investigation prior to the completion of its investigation. French claims AS 44.62.560(a) as a basis for the court's jurisdiction. The section of the AOGCC's enabling act relied upon by French to demand a hearing, AS 31.05.060, expressly exempts AOGCC from 44.62.560(a). AS 31.05.060(b)("Any action by the commission ... that has application to a single well or a single field need not comply with the provisions of AS 44.62.330-44.62.630 ..."). In addition, AS 44.62.560(a) applies only to the boards, agencies and commissions listed in AS 44.62.330(a)(1)-(45). AOGCC is not one of the enumerated agencies. 2Z STATEMENT OF THE CASE 1. Summary. In April, 2017, BPXA experienced a sudden failure on DS 02-03B. After conferring with BPXA, AOGCC took no further enforcement action. French was an AOGCC commissioner at the time. Approximately 18 months later, BPXA experienced an identical failure on DS 02-02A. Because the failures were identical, AOGCC convened a hearing on both of the wells to determine what was causing the failures. After the hearing, on February 28, 2019, AOGCC entered Other Order 149. 1 Other Order 149 determined that BPXA's modeling was inadequate and that BPXA's understanding of the failures was incomplete. BPXA was ordered to retrieve parts of at least two wells and to provide additional information to AOGCC. The retrievals were ordered to be completed by the end of 2019. AOGCC also rescinded certain previously - granted approvals until such time as it had reviewed the information BPXA was to provide. The same date Other Order 149 entered, French filed a request for a hearing on "waste" he claims occurred as a result of the DS 02-03B failure. Because AOGCC's investigation into the failures has not been completed, AOGCC denied French's request. This appeal ensued. 2 Once entered, AOGCC's Orders are available to the public on its website. Other Order 149 is found at http://aoffweb,state.ak.us/ogc/orders/oo/data/otherl49.pdf. French has cited and relied upon Other Order 149 in his brief. Brief of Appellant, p. 7. AOGCC has no objection to the court's consideration of the matters set forth in Other Order 149. z3 2. Facts. In April, 2017, BPXA experienced a sudden failure on DS 02-03B.3 The well head rose abruptly, impacted the well house, and permanently damaged the surface casing and flow tree assembly.' DS 02-03B was in production when it failed.' The failure resulted in a release of well bore fluids at the surface.6 Shortly after the DS 02-03B failure, BPXA conducted an investigation into its cause and what could be done to prevent additional failures.? BPXA concluded the sudden wellhead rise was caused by permafrost subsidence loading effects on the surface casing string and that the potential for such failures was limited to wells with DS 02- 0313's 3-casing-string design and a casing shoe set in the permafrost.' BPXA further concluded that 3 string wells which were shut in were less likely to fail.' In December, 2018, BPXA's DS 02-02A well (DS 02-02A) failed in a fashion identical to 02-0313.10 At the time, DS 02-02A had been shut in for over twelve years." Due to the second failure, AOGCC ordered BPXA to begin the process of abandonment 3 Other Order 149, p. 1. 4 Other Order 149, p. 1. ' Other Order 149, p. 2, paragraph 3. 6 Other Order 149, p. 1. 7 Other Order 149, p. 1. ' Other Order 149, p. 2, paragraph 5. ' Other Order 149, p. 3, paragraph 4. 10 Other Order 149, p. 2, paragraph 8. 11 Other Order 149, p. 2, paragraph 8. 3 2-q for 14 3-casing-string wells with shoes set in the permafrost.12 From January 9 to February 8, 2019, AOGCC approved abandonment procedures on 13 of the 14 wells. 13 AOGCC also scheduled a hearing. Because the failures were identical, the scope of the hearing included a reexamination of the April, 2017, DS 02-03B failure.14 At the February 13, 2019 hearing, BPXA continued to posit that permafrost subsidence combined with the 3-casing-string design with shoes set in the permafrost was the cause of both incidents. BPXA advised that it had no evidence to suggest that permafrost subsidence could cause a sudden catastrophic failure in any 2-casing-string design wells.15 BPXA stated it was undertaking both its own studies and an independent geotechnical study to gain additional understanding of the failures.16 On February 28, 2019, AOGCC entered Other Order 149. AOGCC noted BPXA's conclusions rested on untested assumed hypotheses and unevaluated potential impacts. 17 Although BPXA had no evidence that subsidence would cause a catastrophic failure in 2- casing-string wells, AOGCC placed greater significance on the absence of any evidence to prove it would not cause a failure.18 AOGCC determined both that 1) the inadequacy of BPXA's modeling was demonstrated by the second failure in DS 02-02A after BPXA 12 Other Order 149, p. 2, Findings, paragraph 1. 13 Other Order 149, p. 2, Findings, paragraph 1. 14 Other Order, 149. 15 Other Order 149, p. 3, Conclusions paragraph 2. 16 Other Order 149, pp. 2-3, Findings paragraph 4. 17 Other Order 149, p. 3, Conclusions paragraph 3. 18 Other Order 149, p. 3, Conclusions paragraph 2. 11 2S had concluded shut in wells were less likely to fail and 2) BPXA's understanding of the failures was incomplete.19 As a result, AOGCC wanted additional evidence to determine the cause of the failures. AOGCC ordered BPXA to recover the production tubing, production casing, outer casing, surface casing, and conductors on at least two of the 3-casing-string wells, leaving open the possibility that if that did not provide sufficient evidence as to the cause, it might require BPXA to pull casing string on additional wells.20 These operations along with BPXA's analysis of what pulling the strings revealed, are required to be completed by the end of 2019.21 BPXA was also ordered to provide its geotechnical review upon completion," Recognizing that abandonment of the wells would preclude the ability to recover potential evidence as to causation,23 AOGCC rescinded its 13 approvals of abandonment procedures, noting abandonment operations would be considered after AOGCC reviewed the results of the required actions on the 3-casing-string wells24 Other Order 149 requiring those additional actions by, and information from, BPXA was entered February 28, 2019, the same date French filed his petition for hearing 19 Other Order 149, p. 3, Conclusions, paragraphs 4 and 5 20 Other Order 149, p. 4, paragraph 1. If AOGCC decides to require additional wells undergo rig interventions, the exact wells with be determined by AOGCC in consultation with BPXA. Other Order 149, p. 4, paragraph 1. 21 Other Order 149, p. 4, paragraph 1. 22 Other Order 149, p. 4, paragraph 4. 23 Other Order 149, p. 3, paragraph 5. 21 Other Order 149, p. 4, paragraph 8. 2—(o on a complaint of waste as to the DS 02-03B well failure. On March 20, 2019, having just ordered BPXA to pull casing strings and provide additional information regarding the cause of the well failures, AOGCC denied French's petition because AOGCC's investigation into the 02-03B failure was ongoing. French moved for reconsideration. The motion was denied by operation of law on April 18, 2019. French appeals, claiming that 1) AOGCC was obligated to give him a hearing as soon as he requested it because "shall means shall," 2) "the directory / mandatory distinction does not apply in this case" because AOGCC denied him a hearing "altogether," and 3) because AOGCC's reasons for denying French a hearing are untrue,25 to uphold AOGCC's order would "eviscerate" AS 31.05.060(a). French's arguments are contrary to law and contradicted by the record. Other Order 151, denying French a hearing prior to the conclusion of AOGCC's investigation into the DS 02-03B well failure, should be affirmed. STANDARDS OF REVIEW Two standards apply to an agency's interpretation of the law. The reasonable basis test applies to questions of law involving "agency expertise or the determination of fundamental policies within the scope of the agency's statutory functions."" Under the 25 French concedes AOGCC was investigating the DS 02-03B failure, but claims Other Order 149 closed the investigation. Brief of Appellant, p. 7 (AOGCC was conducting a review of the mechanical integrity of Prudhoe Bay wells, including DS 02-03B)(AOGCC "issued an order closing out that investigation" citing Other Order 149). 2e Alyeska Pipeline Serv. Co. v. State, 288 P.3d 736, 740 (Alaska 2012)(emphasis supplied) citing Marathon Oil Co. v. State, Dept. of Nat. Res., Div. of Oil & Gas, 254 P.3d 1078, 1082 (Alaska 2011)(additional citation omitted); Davis Wright Tremaine LLP L� reasonable basis test, the court must determine whether the agency's decision is supported by the facts and has a reasonable basis in law, even if the court may not agree with the agency's ultimate determination.27 When questions of law do not involve agency expertise or the determination of fundamental policies within the scope of the agency's statutory functions, the court applies the independent judgment standard.28 ARGUMENT A. The reasonable basis standard of review applies. French correctly cites the applicable standards of review set forth above, then simply declares "deciding whether to grant a hearing does not implicate the expertise of the A0GCC."29 French, who offers nothing by way of analysis in support of his assertion, is mistaken. AOGCC is the permitting and regulatory enforcement authority over hydrocarbon wells in Alaska. Few matters more clearly require a determination of the fundamental policies within the scope of AOGCC's regulatory enforcement authority than AOGCC's control over the scope and timing of both its investigations and the scheduling of hearings on matters touching on those investigations. As a result, v. State, Dept. ofAdmin., 324 P.3d 293, 299 (Alaska 2014) citing Marathon Oil Co. v. State, Dept. of Nat. Res., Div, of Oil & Gas, 254 P.3d 1078, 1082 (Alaska 2011)(additional citation omitted). 21 Davis Wright Tremaine LLP v. State, Dept. ofAdmin., 324 P.3d 293, 299 (Alaska 2014) citing Tesoro Alaska Petroleum Co. v. Kenai Pipe Line Co., 746 P.2d 896, 903 (Alaska 1987)(additional citation omitted), 28 Alyeska Pipeline Serv. Co. v, State, 288 P.3d 736, 740 (Alaska 2012)(independent judgment standard applies if "the agency's specialized knowledge and would not be particularly probative on the meaning of the statute, ")(citation omitted). 21 Brief of Appellant, p.3. interpretation of AS 31.05.060(a) clearly involves the determination of fundamental policies within the scope of AOGCC's functions. French seeks a hearing on waste he 1 alleges occurred as a result of the DS 02-03B well failurq! A waste determination cannot / be made without a determination as to causation Because AOGCC's investigation into the cause of the well failure has not concluded, French is seeking an order of the court 1) amending Other Order 151, 2) directing AOGCC as to how an investigation into a matter squarely within the AOGCC's expertise must be conducted, and 3) requiring AOGCC to hold a hearing prior to the conclusion of its investigation. The reasonable basis standard of review applies to this appeal. AOGCC's actions are supported by fact and have a reasonable basis in the law. Other Order 151 denying French a hearing must be affirmed. Application of the independent judgment standard does not alter that result. As set forth below, the language of AS 31.05.060(a) is directory not mandatory. AOGCC's interpretation of AS 31.05.060 is the correct interpretation. Other Order 151 must be affirmed. B. The language of AS 31.05.060(a) is directory, not mandatory. AS 31.05.060(a) states: The commission may act upon its own motion, or upon the petition of an interested person. On the filing of a petition concerning a matter within the jurisdiction of the commission under this chapter, the commission shall promptly fix a date for a hearing, and shall cause notice of the hearing to be given. The hearing shall be held without undue delay after the filing of the petition. The commission shall enter its order within 30 days of the hearing. 9 4- Under Alaska law, whether the failure to adhere to time limits set forth entitles a party to relief turns on whether the language of the law is mandatory or directory.30 In the absence of a penalty for failure to comply with the statute and significant prejudice to the other party, "shall" denotes simple futurity rather than a command and substantial compliance is acceptable. 31 A statute is considered directory if three criteria are met: (1) its wording is affirmative rather than prohibitive; (2) the legislative intent was to create "guidelines for the orderly conduct of public business"; and (3) "serious, practical consequences" would result if it were considered mandatory.32 As to the first criterion, the wording of AS 31.05.060(a) is affirmative, not prohibitive. The statute says the AOGCC "shall" promptly fix a date for a hearing but contains no language of prohibition, does not speak to what AOGCC can or should not do,33 does not prohibit it from doing otherwise,34 and does not impose a penalty for failure to comply. The first criterion is met. "In re Reinstatement of Wiederholt, 24 P.3d 1219, 1233 (Alaska 2001) citing Copper River Sch. Dist. v. State, 702 P.2d 625, 627 (Alaska 1985); South Anchorage Concerned Coalition, Inc. v. Municipality ofAnchorage, 172 P.3d 768, 771-72 (Alaska 2007) citing In re Reinstatement of Wiederholt, 24 P.3d 1219, 1233 (Alaska 2001); State, Dep't of om L3merce & Econ. Dev., Div. oflns. v. Schnell, 8 P.3d 351, 357 (Alaska 2000). uth Anchorage Concerned Coalition, Inc. v. Municipality ofAnchorage, 172 P.3d 768, 772 (Alaska 2007) citing In re Reinstatement of Wiederholt, 24 P.3d 1219, 1233 (Alaska 2001)(citation omitted). 32 South Anchorage Concerned Coalition, Inc. v. Municipality ofAnchorage, I72 P.3d 768, 772 (Alaska 2007) citing In re Reinstatement of Wiederholt, 24 P.3d 1219, 1233 (Alaska 2001)(quoting City of Yakutat v. Ryman, 654 P.2d 785, 789-91 (Alaska 1982)). 33 South Anchorage Concerned Coalition, Inc. v. Municipality ofAnchorage, 172 P.3d 768, 772 (Alaska 2007)(emphasis in original). 34 In re Reinstatement of Wiederholt, 24 P.3d 1219, 1233 (Alaska 2001). �C) The language of the statute makes equally clear that the legislative intent was to create "guidelines for the orderly conduct of public business." Both the legislature's use of "promptly" and "without undue delay" rather than specific time constraints within which the AOGCC must schedule its hearings are language of futurity rather than - Ar%v-� command. The legislature's lack of any prohibitive language speaking to what AOGCC can not do is acknowledgement at the scheduling of hearings in general, and L�if1.�r>U enforcement hearings in particular, is a fundamental policy determination to be made by AOGCC. The second criterion is met. AOGCC will suffer serious practical consequences if the language of AS 31.05.060(a) is deemed mandatory. Such an interpretation would fail to account for the common exigencies and contingencies inherent in the AOGCC's regulatory enforcement duties and seriously constrain AOGCC's abilities to obtain all the information it believes necessary prior to convening a hearing, as well as its ability to enforce its regulations. French's petition is an example. The escape of gas that French claims constituted waste occurred from the April, 2017 DS 02-03B failure. After an initial review shortly afterwards, AOGCC took no enforcement action on the failu .35 However, new information — the identical DS 02-02A failure in late 2018 — caused AOGCC to reexamine the DS 02-03B failure, to rescind its approvals to plug and It t► 035rench was an AOGCC commissioner at the time AOGCC took no action. 10 C7A sty abandon similar wells in order to preserve potential evidence and to demand additional actions be taken, and additional information be provided, by BPXA.36 Any waste determination requires both an operator to hold accountable and a determination as to causation. An immediate hearing on French's waste allegations would require notice to BPXA, an opportunity for BPXA to be heard, and a ruling prior to conclusion of AOGCC's inquiry into the well failure, effective precluding GCC from holding a hearing on the issues of waste and I or causation should the investigation imat eveal such was warranted.37 The potential for such an outcome seriously prejudices GCC in its regulatory enforcement role. Conversely, French does not, and cannot, claim any prejudice, let alone the "significant prejudice to the other party" required by law, resulting from the AOGCC's refusal to convene a hearing prior to the end of its investigation. The third criterion is met. The language of AS 31.05.060(a) is directory, not mandatory. On matters of regulatory enforcement, the AOGCC has neither the luxury of, nor any affinity for, French's "ready ... fire ... aim!" approach to regulatory enforcement or scheduling hearings on matters under investigation. Other Order 151 refusing to schedule a hearing while the investigation is still pending must be affirmed. 36 Other Order 149. 37 If French can prove his waste claim, AOGCC may impose a penalty for every 1000 cubic feet (1 MCF) of gas. AS 31.05.150(d). The penalty is twice the fair market value of the gas at the point of waste. AS 31.05.150(d). The DS 02-03B failure released 1,187 MCF of gas. DOR set the 2017 second quarter value of the gas at $2.356 / MCF. The total value of the gas was $2,796.57; the authorized penalty would be $5,593.14. 5Z C. French's analysis is contrary to law, contradicted by the record and deeply flawed. Unable to address the applicable law or the wording of Other Order 151, French takes a different tact. First, he declares that the directory 1 mandatory analysis does not apply in this case because AOGCC "denied [French] a hearing altogether," and that as a result "the distinction is moot."38 Second, French claims affirmance of Other Order 151 would "eviscerate" AS 31.05.060(a) because AOGCC has "closed" its investigation and, in turn, is essentially lying when it says its investigation into the well failures has not concluded. Specifically, French asserts "that the `on -going investigation' explanation doesn't hold water, because the agency had already issued an order closing out that investigation on February 28.09 Not only are these statements supported by nothing apart from French's say-so, his statements are flatly contradicted by the record and Other Order 149. French's arguments all hang on a single fallacy: that he has been denied a hearing altogether. The reason for French's utilization of this stratagem is obvious. When the court gives meaning to the terms of Other Order 151 as written, both the record and the applicable law reveal French's appeal as utterly meritless. By the express language of Other Order 151, French has been denied a hearing until AOGCC's investigation has finished: "A hearing prior to the conclusion of that investigation would be premature."40 38 Brief of Appellant, p. 6. 39 Brief of Appellant, p. 7. 40 Other Order 151, Record, p. 0002. 12 33 Rather than offer argument or an explanation of how the court should address the clear language of Other Order 151, French proceeds as though this sentence has been removed from the order. Acceptance of this meritless claim requires the court to override AOGCC's clearly expressed intent and judicially amend Other Order 151 to delete that sentence. Although French concedes the failure of the DS 02-03B well was being investigated,41 his next claim is that affirming Other Order 151 would eviscerate the hearing requirement of AS 31.05.060(a). Basically French asserts AOGCC was lying when it stated its investigation into the DS 02-03B failure is ongoing.42 This argument relies entirely on French's declaration that AOGCC "closed" its investigation into the DS 02-03B well failure when it entered Other Order 149. French offers no evidence to support his bald assertion that entry of Other Order 149 "closed" the investigation. Nor could he. There is literally nothing in Other Order 149 that states or even implies the investigation into the well failure is closed. To the contrary, Other Order 149's language makes clear that AOGCC has not concluded its inquiry into the cause of the DS 02-03B failure. AOGCC found the modeling underlying BPXA's explanation for the failures to be inadequate.43 Because BPXA had no casing " Appellant's Brief, p. 7 ("... the [AOGCC] was conducting a review of the mechanical integrity of Prudhoe Bay wells, including the well DS 02-03B ..."). 42 "... the `ongoing investigation' explanation doesn't hold water because the [AOGCC] has already issued an order closing out that investigation on February 28, prior to the filing of a petition for a hearing ..." Appellant's Brief, p. 7. a3 Other Order 149, p. 3, Conclusion 4. 13 s `I recovery plans to identify and analyze casing issues, AOGCC required rig interventions to recover production tubing, production casing, out casing, surface casing, and conductor are required on at least two of the 3-casing-string-wells.44 The rig interventions must be completed by the end of 2019.45 The purpose of the rig interventions is to gather information to assist in understanding the cause of the failures.46 BPXA must also provide the geotechnical review when it is completed.47 No further abandonment operations may be conducted until AOGCC completes its review of the rig intervention operations.4s French's lack of any factual basis for claiming the investigation is closed coupled with the plain wording of Other Order 149 make his arguments in this regard border on frivolous.49 so Other Order 151 must be affirmed. 44 Other Order 149, p. 4, paragraph 1. 45 Other Order 149, p. 4, paragraph 1. 46 Other Order 149, p. 3, paragraph 5. 47 Other Order 149, p. 4, paragraph 4. 48 Other Order 149, p. 4, paragraph 8. 49 rench apparently concedes that if the investigation is ongoing he is not entitled to demand a hearing until it is concluded. All he offers on this topic is a single sentence: "Moreover, there is nothing inconsistent with granting a hearing on appellant's petition while a related investigation is ongoing." Brief of Appellant, p. 8. As a preliminary matter, this one sentence argument is raised in such cursory fashion that it must be deemed waived. Even if the court does not deem the argumentyg the investigation is not merely "related." As previously set forth, the investigation encompasses 02- 03B failure that French alleges resulted in "w of my is a hearing before that investigation concludes inconsistent, it wy6ld be highly prejudicial to AOGCC. so French raises a similar argument regar 'ng the docket numbering system that AOGCC uses to track various matters: "the docket O 64 was closed with an order ... / signed February 28, 2019." Appellant's brief, p. 7. Frenc f is uncles etp ear he intends this as a second argument regarding the investigation being closed or if it is duplicative of his assertions regarding Other Order 149, Because docket numbers are 14 CONCLUSION AOGCC's denial of French's demand for a hearing was based upon its determination of fundamental policies clearly within the ambit of AOGCC's statutory functions as the regulatory authority over hydrocarbon wells. AOGCC's interpretation of AS 31.05.060(a) as not requiring it to schedule a hearing while its investigation into the cause of the DS 02-03B failure is pending is supported by the facts and has a reasonable basis in the law. French's assertions are at best unsupported proclamations and at worst directly contradicted by the record. Other Order 151 denying French a hearing while the AOGCC's investigation is continuing must be affirmed. DATED: September 11, 2019. KEVIN G. CLARKSON ATTORN�ENE By: A, Thomas A. Ballantine Senior Assistant Attorney General Alaska Bar No. 8806122 simply a tracking mechanism at AOGCC, even if the court were to deem the docket number "closed," it would not mean AOGCC's investigation was closed. 15 -3 C IN THE SUPERIOR COURT FOR THE STATE OF ALASKA THIRD JUDICIAL DISTRICT AT ANCHORAGE HOLLIS S. FRENCH, ) Appellant, ) V. ) Agency Case: OTH-19-003 ALASKA OIL AND GAS CONSERVATION ) COMMISSION, ) Appellee. ) Appeal Case: 3AN-19-6531CI APPEAL FROM THE ALASKA OIL AND GAS CONSERVATION COMMISSION APPELLANT'S REPLY Hollis S. French 2640 Telequana Drive Anchorage, Alaska 99517 (907)244-7135 AK Bar No. 9606033 TABLE OF CONTENTS TABLE OF CONTENTS.......................................................... i TABLEOF AUTHORITIES...................................................... AUTHORITIES PRINCIPALLY RELIED UPON ............................. iii ARGUMENT....................................................................... 1 I. The mandatory / directory distinction does not apply in cases of non-compliance with the statute .................. 1 II. There is nothing inconsistent in granting a hearing on Appellant's petition while a related investigation is on -going ........................................................ 5 III. The appropriate standard of review is the independent judgment standard........................................................ 9 CONCLUSION..................................................................... 13 i �� TABLE OF AUTHORITIES FEDERAL CASES B & B Hardware v. Hargis Industries, 135 S. Ct. 1293 (2015) ........... 7 Hudson v. United States, 522 U.S. 93 (1997)................................ 8 CONSTITUTIONAL PROVISIONS Alaska Constitution Article I, § 6............................................... 13 ALASKA CASES Kim v. Alyeska Seafoods, Inc., 197 P.3d 193 (Alaska 2008) ............ 2-4 Mukluk Freight Lines, Inc. v. Nabors Drilling, Inc., 516 P.2d 408 (Alaska 1973)................................................................... 12,13 S. Anchorage Coal. v. Municip. of Anchorage, 172 P. 3d 768 (Alaska 2007).................................................................. 2 Union Oil Co. of Cal. v. Dept. of Revenue, 560 P.2d 21 (Alaska 1977) 9 - 11 STATUTES AS 31.05.060(a)............................................................ passim OTHER AUTHORITIES BP Working to Contain Well on North Slope (alaskapublic.org/ 2017/04/14/bp-working-to-contain-well-on-north-slope) ................. 5 Slope Well Review Reveals No Issues Beyond Those Flagged By BP (alaskajoumal.com20l8-01-25/slope-well-review- reveals-no-issues-be ond-those-fla ed-b 8 -39 ii AUTHORITIES PRINCIPALLY RELIED UPON ALASKA STATUTE 31.05.060(a) The commission may act upon its own motion or upon the petition of an interested person. On the filing of a petition concerning a matter within the jurisdiction of the commission under this chapter, the commission shall promptly fix a date for the hearing, and shall cause notice of the hearing to be given. The hearing shall be held without undue delay after the filing of a petition. The commission shall enter its order within 30 days after the hearing. W `i b ARGUMENT I. The mandatory / directory distinction does not apply in cases of non-compliance with the statute. Through repeated usages of the word "shall" AS 31.05.060(a) commands AOGCC, upon the filing of a petition by an "interested person" "concerning a matter within the jurisdiction" of the agency to do four things: 1) to promptly fix a date for a hearing, 2) to cause notice of the hearing to be given, 3) to hold the hearing without undue delay, and 4) to enter its order within 30 days after the hearing.' Appellant filed a petition with the AOGCC regarding a major well failure on the North Slope. AOGCC has not disputed that Appellant is an interested person. AOGCC has not disputed that the matter raised in Appellant's petition is within the jurisdiction of the agency. Upon the satisfaction of those two conditions, AOGCC must hold a hearing in compliance with the law. AOGCC did not hold a hearing on Appellant's petition. The agency in its brief argues that the law does not have to be followed because AS 31.05.060(a)'s "shalls" are directory and not mandatory. It is true that under Alaska law "[i]f a 1 "On the filing of a petition concerning a matter within the jurisdiction of the commission under this chapter, the commission shall promptly fix a date for the hearing, and shall cause notice of the hearing to be given. The hearing shall be held without undue delay after the filing of a petition. The commission shall enter its order within 30 days after the hearing." AS 31.05.060(a)(emphasis supplied). 1 'A l statute is mandatory, strict compliance is required; if it is directory, substantial compliance is acceptable absent significant prejudice to the other parry."2 The legal difficulty for AOGCC is that it did not comply with the statute, either strictly or substantially. Appellant pointed out in his opening brief that the mandatory / directory distinction is moot, given that there was no compliance with the statute. In relevant part, Other Order 151 states emphatically, "French's request for a hearing is DENIED." AOGCC's brief did not address the crucial question of whether denying a hearing could amount to substantial compliance with the statute. The question was raised in a worker's compensation case however, and the analysis there provides guidance to the court in this case. The case, cited in Appellant's Brief at page 6, is Kim v. Alyeska Seafoods, Inc 3 The statute at issue in Kim required an injured worker to file a request for a hearing and an affidavit of readiness for the hearing within two years of the time the claim was controverted. Two days before the deadline, Kim filed a motion for a continuance, saying he needed more time to prepare. The Alaska Workers' Compensation Board subsequently denied his claim without having held a hearing. The Board's rationale was that no request for a hearing was timely filed, and the 2 South Anchorage Concerned Coalition v. Municipality of Anchorage, 172 P. 3d 768, 772 (Alaska 2007). 3 197 P.3d 193 (Alaska 2008). 2 "Z decision was affirmed on appeal to the Alaska Workers' Compensation Appeals Commission. The Supreme Court reversed, reasoning that [o]ur holding today is compatible with [a previous ruling] where we decided that [the statute] required the Board to hold a hearing when one had been requested, i.e., that a hearing was mandatory and not discretionary. Failing to hold a hearing would not amount to compliance with the statute — it would result in complete noncompliance with it. On the other hand, the Board might still comply with the statute by holding a hearing sixty-two days after an affidavit of readiness is filed, rather than sixty days as stated in the statute.4 In Kim there was some subtlety in the interplay between the request for a hearing and the affidavit of readiness. No such subtlety exists in this case. AS 31.05.060(a) is a series of four "shalls," not one of which did the agency accomplish. It is not as if, for example, the two parties are disputing only about whether AOGCC acted "promptly" in fixing a date for the hearing, or whether the hearing was held without "undue delay." Or, to take the example raised in Kim, it is not as if the agency issued an order in thirty-two days, instead of the thirty authorized by the statute, and Appellant was claiming he was entitled to some relief based upon the agency's failure to meet that deadline. In those circumstances, perhaps, a closer question might be before the court. Here, as in the Kim case, the denial of a hearing means the AOGCC has not complied with the law, either strictly or substantially. Absent some form of compliance, the directory / mandatory distinction does not apply. 4 Id. at 198, fn. 23 (emphasis supplied). 3 y1> The Kim case states unequivocally that not holding a hearing in the presence of a statute commanding one is non-compliance with the statute. AOGCC's brief does not address the Kim case. AOGCC's brief does not describe whether it believes that Other Order 151 amounts to `substantial compliance' with the provisions of AS 31.05.060(a). Put another way, AOGCC's brief on this point is missing this crucial sentence: "In Other Order 151 AOGCC substantially complied with AS 31.05.060(a) by...." AOGCC did not begin or finish such a sentence because it could not do so based on the record before the Court. AOGCC's failure to address this issue means that its legal analysis on this point is incomplete. To sum up this section: Appellant does not concede that the four "shalls" of AS 31.05.060 are directory rather than mandatory. Indeed, the analysis in Kim strongly suggests that, at the very least, the "shall" commanding AOGCC to hold a hearing has to be viewed as mandatory, requiring strict compliance. Appellant does not believe the Court has to reach that question, however, because even if the all the "shalls" are determined to be directory, then AOGCC must still substantially comply with them. Other Order 151 denied a hearing to Appellant, an action that Kim deems explicitly to constitute noncompliance. AOGCC attempted to obfuscate the issue by claiming that appellant was not denied a hearing.5 Appellant would again point to the all -caps word 5 "French's arguments all hang on a single fallacy: that he has been denied a hearing altogether." Brief of Appellee, p. 12. 4 y Lk "DENIED" in Other Order 151, and ask the Court to apply a little common sense to the question of whether the Order denied a hearing to Appellant. II. There is nothing inconsistent with granting a hearing on Appellant's petition while a related investigation is on -going. In Other Order 151, AOGCC took the position that it will not grant Appellant a hearing until it has finished conducting an "on -going AOGCC investigation.."6 The difficulty for AOGCC is that the relevant law does not allow for that result. AS 31.05.060(a) commands AOGCC to hold a hearing, period. AOGCC in its brief suggests that holding a hearing while an investigation is continuing will somehow hamper its regulatory efforts. It states that a "waste determination requires both an operator to hold accountable and a determination as to causation" 7 as if these facts were unknown to AOGCC and still to be ascertained. Yet AOGCC concedes that "well bore fluids" were released when the well identified as DS 02-03B suddenly rose three feet out of the ground.8 This is a wise concession, given the contemporaneous news reports of the incident.9 6 "The circumstances surrounding the release of gas from the DS02-03 well are the subject of an on -going AOGCC investigation. A hearing prior to the conclusion of that investigation would be premature." Record at 0002. Brief of Appellee, p. 11. 8 Brief of Appellee, p. 3. 9 "BP is still struggling to contain an out -of -control production well on the North Slope, after a failed attempt to shut it down Friday night. The well 5 LA AOGCC also identifies the operator of the well as British Petroleum Exploration Alaska, Inc.10 Therefore, by AOGCC's own description of the facts, there is an operator to hold accountable, BP, and the causation of the waste, a well that moved three feet out of the ground, is identified. In the face of these facts, the agency appears as if it is simply being obstinate in not holding a hearing as prescribed by law. But even assuming, for the purposes of discussion, that the agency's unlawful denial of a hearing on Appellant's petition is grounded in its belief that it will learn even more valuable information from BP about what exactly caused the well to move upwards in a catastrophic way, does not change the legal result. While gathering more information may be a worthwhile goal, the difficulty for AOGCC is the black and white nature of the statute. The policy choice here was made by the Legislature, which used the word "shall" four times in AS 31.05.060(a) and not a single "may." The appropriate course for the agency to take is to follow the law. The law grants a statutory right to a hearing to Appellant, and to any other citizen who files a petition regarding a matter within the jurisdiction of the agency. AOGCC is not free to disregard the law. The Legislature long ago weighed in on the question of whether the agency should be allowed to wait to hold a hearing on a petition until continued to vent natural gas Saturday evening, more than a day and a half after BP first reported a gas release and "spray" of crude oil." alaskapublic. org/2017/04/14/bp-working-to-contain-well-on-north-slope/ 10 Brief of Appellee, p. J. 6 t it believes it has all the information it ever might need. The hearing has to happen first. AOGCC suggested in its brief that holding a hearing on the waste from the BP well without access to information it awaits might "effectively preclude" it from taking action in the future." This is incorrect, and given that AOGCC failed to cite any legal authority on this point, it is not clear from its briefing how seriously it is advancing this part of its argument. Out of an abundance of caution, Appellant will point out that preclusion as a legal concept works as follows: Sometimes two different tribunals are asked to decide the same issue. When that happens, the decision of the first tribunal usually must be followed by the second, at least if the issue is really the same. Allowing the same issue to be decided more than once wastes litigants' resources and adjudicators' time, and it encourages parties who lose before one tribunal to shop around for another. The doctrine of collateral estoppel or issue preclusion is designed to prevent this from occurring. 12 Preclusion only operates when a second tribunal is involved. AOGCC's argument that it would somehow be precluded from taking action in the future because it followed the law and granted Appellant a hearing on the gas leak from the BP well is without merit. Brief of Appellee, p. 11. 12 B & B Hardware v. Hargis Industries, 135 S. Ct. 1293, 1298-99 (2015). 7 LI'q The agency also twice alleges that it will be prejudiced if it holds a hearing on Appellant's petition.13 The agency does not articulate the exact nature of the alleged prejudice. The agency cites no legal precedent for its position. (While "significant prejudice" is a factor to be considered in the mandatory / directory analysis, that refers to prejudice to Appellant, not AOGCC.) As pointed out above, there is no preclusive effect to the agency of holding a hearing on the waste of gas from the BP well. There is certainly no double jeopardy aspect to a hearing before an administrative agency. 14 AOGCC's failure to articulate the prejudice it claims it will experience leaves Appellant unable to fully respond to its position. Before concluding this section, Appellant will point out that in the wake of the BP well failure, AOGCC ordered an emergency review of all North Slope wells to identify those with the same construction as the well that failed and subsequently advanced new regulations to prevent another company in the future from setting outer surface well casing in the permafrost that covers the North Slope.15 AOGCC's amnesia on this point in its brief is regrettable,16 but neither its 13 "The potential for such an outcome seriously prejudices AOGCC in its regulatory enforcement role" Brief of Appellee, p. 11; "Not only is a hearing before that investigation concludes inconsistent, it would be highly prejudicial to AOGCC." Brief of Appellee, p. 14, fii. 49. 14 Hudson v. United States, 522 U.S. 93, 95-96 (1997). 15 "An emergency engineering review of all North Slope wells ordered last October by state regulators did not reveal any significant issues but a regulation change is still likely. The Alaska Oil and Gas Conservation Commission issued the emergency directive to North Slope production and exploration companies Oct. 30 after it was determined a BP well at Prudhoe Bay Drill Site 2 that failed 8 y( amnesia nor the actions AOGCC took or did not take in the immediate aftermath of the well failure are legally significant here. To sum up this section: The agency may decide to investigate the BP well failure for the next ten years. The agency may wish to not address the issue of the waste that occurred from BP's well under the timetable set out in AS 31.05.060(a). Appellant's statutory right to a hearing must not be subordinated to the agency's own priorities. To Appellant, it appears as if the agency is conflating holding a hearing with reaching a final appealable decision on the merits. The law commands AOGCC to do the first but not the second. There is nothing inconsistent with the agency holding a hearing on Appellant's petition while it ponders the issue. III. The appropriate standard of review is the independent judgment standard. The issue before the Court is one of statutory construction. The general rule for statutory construction cases is set out in Union Oil Co. of Cal. v. Dept. of Revenue: "[W]here, as here, the issues to be resolved turn on statutory interpretation, the knowledge and expertise of the agency is not conclusive of the intent of the legislature in passing a statute. Statutory construction is within the and sprayed about 100 gallons of oil last April did so largely due to its outer surface casing being set in the permafrost — and the permafrost thawing and subsiding." alaska joumal.com2018-01-25/ slope -well -review -reveals -no -issues - beyond -those -flagged -bp. 16 "AOGCC took no enforcement action on the failure." Brief of Appellee, p. 10. 9 `l � scope of the court's special competency, and it is our duty to consider the statute independently."17 The Union Oil case concerned the appropriate interpretation to be given a provision of an oil and gas production tax law enacted by the Legislature and a regulation interpreting the statute promulgated by the Department of Revenue. The Department urged the Court to adopt the reasonable basis standard of review. The Court's discussion of the issue is helpful: In support of a reasonable basis standard of review, the Department argues that its interpretation made all the complicated variables of the tax calculation fit together in an efficient and workable manner ...' and was based upon `... the department's expertise in administering tax calculations, taxpayer notifications and payment procedures'.... These considerations do not warrant application of the reasonable basis test. While tax structure and collection procedures do involve certain policy considerations which we consider in independently interpreting this statute, none of the policy judgments argued in this case is the type of specialized agency judgment which has caused us to apply the reasonable basis test in the past.18 The Court ruled that the independent judgment standard was the correct one to be applied.19 17 560 P.2d 21, 23 (Alaska 1977)(footnote omitted). 18 Id. at 24 (footnote omitted). 19 Id. 10 5 0 A comparison between two sets of precedents cited by the Court in Union Oil and the standard of review applied in each case reveals the weakness of the agency's position on this point. Here are issues the Union Oil Court found to be properly reviewed through the reasonable basis test: • questions of oil discovery evaluation and prediction of future well productivity; • procedures adopted for competitive bidding for oil and gas leases and criteria for qualified applicants for such leases; • decisions regarding initiation of a rate investigation pursuant to charges of discrimination; and • conclusions relating to the desirability of creating a borough.20 Compare that list of issues to this one, to which the Court has applied the independent judgment standard of review: • interpretation of a statute relating to public land auction procedures; • a determination whether administrative procedures were consistent with due process.21 The last example comes from Mukluk Freight Lines, Inc. v. Nabors Drilling, Inc." The case is instructive. 20 Id at 25, fig. 6 (internal citations omitted). 21 Id at 25, fn. 7 (internal citations omitted). 22 516 P.2d 408 (Alaska 1973). Mukluk involved the transfer of a trucking company's authority to operate. Several trucking competitors challenged the transfer. The matter went before the Alaska Transportation Commission. It announced that it intended to hold an evidentiary hearing in the matter.23 The Transportation Commission then issued an order cancelling the evidentiary hearing. "In the place of an evidentiary hearing, the Commission announced that it would employ a `modified procedure."'24 That order was appealed to superior court, which ruled that in "transfer proceedings the Commission had discretionary authority to either grant or deny evidentiary hearings." An appeal to the Alaska Supreme Court followed. The first question the Court had to decide was the proper standard of review. The Court noted that the reasonable basis standard applies to cases in which the "particularized experience and knowledge of the administrative personnel goes into the determination."25 way: The Court articulated the test for the independent judgment standard this The other kind of case presents questions of law in which knowledge and experience in the industry affords little guidance toward a proper consideration of the legal issues. These cases usually concern statutory interpretation or other analysis of legal relationships about which courts have specialized knowledge and 23 Id. at 408-409. 24 Id. 25 Id. 12 G2, experience. Consequently, courts are at least as capable of deciding this kind of question as an administrative agency. 26 The question in this case is whether AOGCC followed the procedures set out by the Legislature in the text of AS 31.05.060(a) in handling the petition Appellant submitted to the agency. This is a classic question of law. To use the words of the Mukluk Court: the knowledge and experience of AOGCC `affords little guidance' on this question. The knowledge and experience of AOGCC is directed towards questions of well engineering and geology. For the foregoing reasons, in reviewing this case, the Court must apply its independent judgment. CONCLUSION Appellant has a constitutional right to petition the government,27 and in this specific setting, that constitutional right comes with AS 31.05.060(a)'s statutory promise of a hearing. AOGCC's Other Order 151 subordinates Appellant's right to a hearing to the agency's desire to wait. Other Order 151 is unlawful. AOGCC should be ordered by this Court to schedule a hearing on Appellant's petition in conformance with the law. DATED: October 16, 2019 i Hollis S. French Bar No. 9606933 26 Id. 27 See Alaska Constitution, Article I, § 6: "The right of the people to peaceably assemble, and to petition the government shall never be abridged." 13 rj 3 Pursuant to AIL R. App. P. 513.5(c)(2), I hereby certify that Appellant's Reply is in 13 point Times New Roman. 9 _\\ Hollis S. French 14 5k4 JQ K o W ;U, g a=npsQis O011 W�VC<A W_ IL W WY.4LLS Q3aa 0 a 0 0 IN THE SUPERIOR COURT FOR THE STATE OF ALASKA THIRD JUDICIAL DISTRICT AT ANCHORAGE HOLLIS FRENCH, Appellant, } VS. ) AOGCC, ) Appellee, ) Appeal Case No.: 3AN-19-06531 Cl NOTICE OF COMPLETION OF INVESTIGATION Hollis S. French requested the Alaska Oil and Gas Conservation Commission (AOGCC) hold a hearing on "waste" he alleges occurred when gas escaped as a result of the well failure at the DS 02-03B well, operated by British Petroleum Exploration Alaska (BPXA). Any waste assessment requires a determination of causation. After a hearing conducted February 13, 2019, AOGCC determined further investigation into the DS 02-03B well failure was warranted. On February 28, 2019 AOGCC entered Other Order 149 which required BPXA to recover the production tubing, production casing, outer casing, surface casing and conductor on at least two wells] and to provide its geotechnical review when completed.2 These actions were to be completed by the end of 2019. AOGCC also left open the possibility that it might require additional well interventions after reviewing the information provided by BPXA.3 Because AOGCC's investigation into the cause of the DS 02-03B failure was ongoing, the AOGCC denied Other Order 149, p.4, paragraph 1. z Other Order 149, p. 4 paragraph 4. Other Order 149, p. 4, paragraph 1. French's request as "premature." Rather than wait until the AOGCC concluded its investigation, French filed this appeal. The AOGCC hereby notifies the court of the completion of the investigation into the failure of the DS 02-03B well. On December 13, 2019, BPXA submitted its geotechnical review and a report on BPXA's interpretation of well abandonment data on wells DS 02-02 and DS 04-01.On December 19, 2019, BPXA submitted two separate final analyses on well L-200 and V-227. Due to the holidays, AOGCC did not complete its review of the information provided by BPXA until early January, 2020. After that review, on January 10, 2020 AOGCC propounded additional questions to BPXA. Between January 14 and January 21, BPXA provided its responses to AOGCC. During the week of January 27, 2020 AOGCC determined it is satisfied with the information provided by BPXA, will not require additional well interventions and will close its investigation. Dated February 4, 2020, KEVIN G. CLARKSON ATTORNEY 6E7R6t1 t \ Y: ' Thomas. A. Ballantine Senior Assistant Attorney General ABA No.: 8806122 Notice of Completion of Investigation French (v. AOGCC) (BP Well) Case No.: 3AN-19-06531 CI February 4, 2020 Page 2 of 2 5 (> IN THE SUPERIOR COURT FOR THE STATE OF ALASKA THIRD JUDICIAL DISTRICT AT ANCHORAGE HOLL.IS S. FRENCH. Appellant, V. 3AN-19-0653ICI ALASKA OIL AND GAS CONSERVATION COMMISSION, Appellee. ORDER REMANDING OTHER ORDER 151 TO THE ALASKA OIL AND GAS CONSERVATION COMMISSION L INTRODUCTION. At issue is the interpretation of Alaska Statute 31.05.060(a). This statute specifies whether and when the Alaska Oil and Gas Conservation Commission (hereinafter Commission) must fix a date for a hearing, provide notice of the hearing date, and issue its order after the hearing. This Court finds the Commission erred when it did not fix a date for a hearing and provide Mr. French notice of the hearing date after he tiled his petition alleging waste. Upon finding the Commission erred, this Court remands the issue back to the Commission so it may fix a date for a hearing on Mr. French's petition of waste. Order Remanding Other Order 151 to the Alaska Oil and Gas Conservation Commission Hollis.5.. French v. alasku Oil and Gar Conservation Commission 3AN-19-06531 Cl Page I of 30 54 11. FACTUAL BACKGROUND & PROCEDURAL POSTURE. a. Factual background. In April 2017, British Petroleum Exploration Alaska Inc. (BPXA) experienced a sudden failure on well DS 02-03B.1 The Commission conferred with BPXA and took no further enforcement action.2 At the time of the well failure and conferral, Appellant was a commissioner:I 1n the autumn of 2018, BPXA later experienced an identical failure on well DS 02-02A.'t Since the wells experienced identical sudden failures, the Commission convened a hearing to determine the cause of the failures on February 13, 2019.5 On February 28"i, 2019 the Commission entered Other Order 149, which determined that BPXA's modeling was inadequate and its understanding of the failures was incomplete.' As a result, BPXA was ordered to retrieve parts of at least two wells before the end of 2019 and provide additional information to the Commission.' The Commission rescinded certain approvals until the information and parts could be reviewed by it.8 Appellee's Brief at 2, Sept. 13. 2019. Id. Id. ' Id. 5 Id Id. at 4-5. Id. " !d Order Remanding Other Order 151 to the Alaska Oil and Gas Conservation Commission Hollis S. French v. Alaska Oil and Gus Conservation Connnission 3 AN-19-0653 ICI Page 2 of 30 5? d On March I, 2019, the Commission received a petition for a hearing on a complaint of waste fironi Appellant, Mr. French, dated February 28, 2018.9 Mr. French alleged that --waste occurred from a well identified as DS02-03B, operated by BP[XA]". and "the well leaked gas to the atmosphere at a very high rate for several days beginning April 14, 2017."10 Mr. French asked the Commission to "open a docket for this petition, and inform [appellant] of the date of the hearing."" Because the "circumstances surrounding the release of gas from the D802-03B well [were] the subject of an on -going ... investigation.... [the Commission found that a] hearing prior to the conclusion of that investigation would be premature."1' The Commission ultimately denied Mr. French's petition for hearing.13 Mr. French then tiled a letter with the Commission on April 8, 2019.14 in his letter, he asserts that under AS 31.05.060(a), "[t]he commission may act upon its own motion, or upon the petition of an interested person. On the filing of a petition concerning a matter within the jurisdiction of the commission under this chapter, the commission shall promptly nix a date for a hearing, and shall cause notice of the hearing to be given."j5 Mr. French suggests the Commission denied his petition because the Commission thinks his " Record at 000003, " Record at 000002. Id. Id. "Id.: Appellee's Brief at 2, 6, 8, Sept. 13.2019. Record at 000001. Id. (emphasis in original). Order Remanding Other Order 151 to the Alaska Oil and Gas Conservation Connnission Hollis S. French v. Alaska Oil and Gas Conservation Commission 3AN-19-06531 Cl Page 3 of 30 3 59 petition is repetitive and already considered in another (locket."' If this is true, Mr. French inquires as to why the subject of the other docket referred to by the Commission is titled "the mechanical integrity of Prudhoe Bay wells operated by BP[XA]."17 Mr. French then explains that "the commission need only inform [him] of the date.. time, and place of that portion of the investigation into BP[XA]'s mechanical integrity problems at Prudhoe Bay that concerns warted gas.fron? well 02-03B." " Finally. Mr. French alleges that failure to do so or set on a hearing would be an abuse of discretion."19 The Commission did not respond to Mr. French's letter. Mr. French seeks an appeal of the Commission's March 20`I', 2019 Other Order 151 (docket number OTI-I-19-003) that denied him a hearing on his complaint of waste under AS 31.05.060(a).20 He filed this appeal on April 22, 2019. h. The parties' positions regarding the proper standard of review and interpretation of the word "shall" as it is used in Alaska Statute 31.05.060(a). Mr. French argues this Court must determine whether the Commission's denial of his petition for a hearing is contrary to governing law. Mr. French's position is that interpreting a statute does not implicate the expertise of the Commission; therefore, the ft, Id. r Id. " Id. (emphasis added). 20 Record at 000002. Order Remanding Other Order 151 to the Alaska Oil and Gas Conservation Commission Hollis S French r. Alaska Oil and Gus Conservation Cnnnndasion 3 AN-19-0653 I C I Page J of 30 El l0r—> independent,judgment standard applies and this Court may substitute its judgment for that of the Commission's when interpreting the statute. 21 The Commission counters that the Court must decide whether a regulatory agency can be required to hold a hearing on a matter under investigation prior to the completion of an investigation. The Commission argues that interpreting AS 31.05.060(a) does implicate its expertise.22 Their position is that the Commission's control over the scope and timing of investigations and related hearings requires a determination of fundamental policies within the scope of Commission's regulatory enforcement authority.23 Therefore, the interpretation of the statute implicates the expertise of the agency.24 Because the Commission's interpretation of the statute implicates its expertise, the reasonable basis standard applies and this Court must only determine whether the Commission's interpretation is supported by the facts and has a "reasonable basis" in the law. The parties also disagree over the proper interpretation of the word "shall'', as it is used in AS 31.05.060(a). Therefore, another issue raised for the Court is whether the requirement to hold a hearing is directory or mandatory. Mr. French contends that the word "shall" most commonly means "must",25 and advances the proposition that the distinction between mandatory and directory is only applicable in situations where substantial compliance has occurred, and here, there has been no compliance with the 't Appellant's Brief at 3, Jul. I I, 1_019. Appellee's Brier at 7, Sept. 13, 2019. " Appellee's Brief at 2, Sept. 13, 2019. 24 /d. 2' Appellant's Brief at 3-4, July 11, 2019, Order Remanding Other Order 151 to the Alaska Oil and Gas Conservation Commission Hollis S. French r. Alaska Oil mad Gas Conservation Commission 3AN-19-06531C1 Page 5 of 30 statute at all.26 Furthermore, Mr. French argues that since the operator's identity and the tact that waste occurred are both known facts —due to numerous news reports of the incident —no inconsistent, preclusive. or prejudicial effects would result from a hearing.' Mr. French also argues that "the commands of AS 31.05.060(a) would be rendered meaningless if tile agency could dodge them by vaguely claiming that the matter put forth in a petition was 'under investigation'."28 He supports this contention by asserting this construction is consistent with the intent of the legislature who drafted the statute, and the Commission is free to hold another hearing, reach a final appealable decision, or continue investigating after holding a hearing on behalf of his petition.2`f The Commission argues that the statutory mandate "shall" is merely directory. only requiring substantial performance.3" The Commission arrives at this conclusion by applying three criteria—(]) that the statute is affirmative rather than prohibitive; (2) that the legislative intent was to create guidelines for the ordinary conduct of public business; and (3) that serious practical consequences would result if the statute were to be considered mandatory —to determine the statute is directory.i1 Additionally, the Commission finds Mr. French's appeal "utterly meritless" because "[bly the express language of Other Order 151, French has been denied a hearing until [the Commission's] 2"Id. at6. 2' Appellant's Reply at 5-9, Oct 16, 2019. 'r Appellant's Brief at 7-8, Joly 11, 2019. /d.: Appellant's Reply at 6-9. Oct. 16, 2019. Appellee's Briefat 8, Sept. 13, 2019. a /d Order Remanding Other Order 151 to the Alaska Oil and Gas Conservation Commission Hollis S. French v. ; Naeko Oil and Gas Conservation Commission 3AN-19-06531 Cl Page 6 of 30 6 W investigation has finished: A hearing prior to the conclusion of that investigation would he premature. "32 M. ANALYSIS. a. Jurisdictiau and issues on appeal. This Court has jurisdiction to hear this appeal under AS 44.62.560, AS 22.10.020, and the Alaska Rules of Appellate Procedure 601(b).3*1 The issues on appeal concern the Commission's interpretation of the language contained in AS 31.05.06O(a) that: The commission may act upon its own motion, or upon the petition of an interested person. On the filing of a petition concerning a matter within the jurisdiction of the commission under this chapter, the commission shall promptly fix a date for a hearing, and shall cause notice of the hearing to be given. The hearing shall be held without undue delay after the tiling of the petition. The commission shall enter its order within 30 days after the hearing.34 Specifically, there are two questions raised on appeal: (1) whether the Commission is required to hold a hearing, provide notice, and issue an order; and (2) when is the Commission required to provide notice of a hearing, hold a hearing, and issue an order. b. Standard of Review. The Alaska Supreme Court utilizes two standards of review for agency decisions based on questions of law: the "substitution of judgment" standard and the "reasonable Id. at 12. AS 44.62.560, 22.10.020(d): Ak. R. App. P. 601(b). AS 31.05.060. Order Remanding Other Order 151 to the Alaska Oil and Gas Conservation Commission Holl%S S. French v. Alaska Oil and Gas Conservation Commi.vion 3AN-19-06531 Cl Page 7 ot30 7 r basis" standard." "•I'he substitution of judgment;/' standard is applied where the questions t/n not involve agency expertise or where the agency's specialized knowledge and experience would not be particularly probative as to the meaning of the statute."" Courts (Intl the standard appropriate -where the knowledge and experience of' the agency is of little guidance to the court or where the case concerns statutory interpretation or other analysis of legal relationships about which courts have specialized knowledge and experience.-38 "Statutory interpretation is within the scope of the court's special competency, and it is our duty to consider the statute independently."" Under this standard, the court may substitute its judgment for that of the agency, "... even if the agency's decision had a reasonable basis in the law. -it) However, a reviewing court does give "some weight to what the agency has done especially where the agency interpretation is longstanding."41 Alternately, when an agency decision pertains to a question of taw involving the formulation of fundamental policy, or the particularized expertise of administrative " Doris Wright Tremaine LLP v. Stale, Dep'l af.4dmin., 324 Pad 293, 298-99 (Alaska 2014): AI}•eska Pipeline Serv. Co. r. Slate, 288 Pad 736, 738-39 (Alaska 2012). "Also referred to as the "independentjudgment standard" (.see Tes•oroAlaska Petroleum Co., 746 P.2d at 902-04). "Id. at 903 (emphasis in original); Alpine Fnerkv, LLC v. Afalanuska Elec. A.cs'n, 369 P.3d 245, 251-52 (Alaska 2016)). "Earth Res. Co. g1'Alaska, 665 P.2d at 965 (internal citations omitted). Union Oil Co. nfCaltfn•nia, 560 P.2d at 23 (Alaska 1977) (citingState v. Aleut C orporalion, 541 P.2d 730, 736- 37). 0 rairhanks M ,Siar Borough Sch. Dlst. v. ;VFA-Alaska, Inc., 817 P.2d 923, 925 (Alaska 1991) (citing Union Oil (,o. gfCatifornia. 560 P.2d at 23 (Alaska 1977)); Danis Wright Tremaine LLP. 324 P.3d at 299 (quoting Tesoro Alaska Petroleum Co. v. Kenai Pipe Line Co., 746 P.2d 896. at 903 (Alaska 1987). " NE-l-Alaska, inc.. 917 P.2d 925 (citing National Bank g1'Alaska v. State, Dept g1'Rcvenue, 642 P.2d 811, 815 (Alaska 1982)). Order Remanding Other Order 15t to the Alaska Oil and Gas Conservation Commission Hollis S. French v. Alaska Oil and Gas Conservation Commission 3AN- 19-0653 1 CI Page 8 of 30 8 6LI personnel, the reasonable basis standard applies.42 This standard "requires a reviewing court to consider Factors of agency expertise, policy. and efficiency when reviewing discretionary decisions.""' The reviewing court need not agree with the agency's decision, it must only determine whether the agency`s decision is supported by facts and has a reasonable basis in law. 44 This Court finds the dispute before it does not pertain to a question of law involving the formulation of fundamental policy or the particularized expertise of administrative personnel. Instead, this Court finds that the dispute centers on the interpretation of AS 31.05.060(a). Interpreting that statute does not involve a formulation of fundamental policy or the particularized expertise of the Commission because that statute merely directs the Commission to fix a date, provide notice, and hold a hearing. 45 Rather. interpreting the statute requires determining the legislature's intent in creating the right to a hearing.at' The act of holding a hearing will not infringe upon the Commission's regulatory or enforcement authority, as the Commission has discretion to determine its course of action, after it holds a hearing. Additionally, the knowledge and experience of the Commission is of little guidance interpreting the legislature's intended meaning for 42 /,1. 416arlh Res. Co. gfAlatket v..Siale. Dept (?/ &venue. 665 P.2d 960. at 964 (Alaska 1983). 11 Union Oil Co. gf C'allJbrnia v. Dep'r of Revenue, 560 P.2d 21, at 23 (Alaska 1977); Davis Wrighr Tremaine LLP, 324 P.3d at 298-99, J9 AS 31.05.060. See .Stare, Dept gf Healrh a$ Sac. Sense., Div. gj'Pub. Assistance v. Grass, 347 P.3d 116, at 122 (Alaska 2015) (The Supreme Court reversed the Superior Court, stating " [blecause the question in this case is one or statutory interpretation —requiring a determination of the legislature's intent in creating the interim assistance program --we conclude that the substitution of judgment standard of review is appropriate instead"). Order Remanding Other Order 151 to the Alaska Oil and Gas Conservation Commission Hol is S. French r. Alaska Oil and Gus Conserrraiou Commission 3 AN-19-06531 CI Page 9 of 30 /9 the statute. and the Commission has not provided all)- indication that there is a longstanding. history of interpreting this statute one way or another. in light of these findings, this Court will substitute its judgment to interpret the statute. e. The Conrmicsiou is required it) hold a hearing on Mr. French's petition of waste but it has discretion to decide lateen the hearing, notice, and order are issued. The two issues presented on appeal are: (1) whether the Commission is required to hold a hearing, provide notice, and issue an order. and (2) when is the Commission required to provide notice ot'a hearing, hold a hearing, and issue an order. This Court substitutes its judgment to interpret the statute and determine whether the Commission was correct to deny Appellant a hearing on his petition of waste. In applying substitution of judgment review, we interpret the statute at issue de novo. When construing statutes de novo, we consider three factors: 'the language of the statute, the legislative history, and the legislative purpose behind the statute.' " a7 i. The language of'Alaska Slalnle 31.03.060(a). When interpreting statutes, courts "must, whenever possible, interpret each part or section of a statute with every other part or section, so as to create a harmonious whole." 48 There is a presumption ''that Congress intended every word, sentence, or 41 (,itp of Voldea v. S9ate, 372 P.3d 240, al 248 (Alaska 2016) (citing A9arathon Oil Co. v. State, Dep7 gl'Nat Res., 254 P.3d 1078, at 1082 (Alaska 2011); A4dnanusko—Sasitna Borough v. Hammond, 726 P.2d 166, at 175 (Alaska 1986); Oels v. anchorage Police Dept Emps. Assn, 279 P.3d 589. at 595 (Alaska 2012)). " Estate ofKnn ex )-el, Alexander v. Cosa, 295 P.3d 380, at 386 (Alaska 2013) (internal quotes omitted) (citing .Slate, Dept gfCnuunerce, Cm/Y. A Econ. De.v., Dir. of his. v. Progressive C'as. Ins, Co., 165 P.3d 624, 629 (Alaska 2007)) (quoting Kodiak Island Borough v. Exxon Corp.. 991 P.2d 757. at 761 (Alaska 1999)). Order Remanding Other Order 151 to the Alaska Oil and Gas Conservation Commission Hollis.S. French v. Alaska Oil and Gas Consurvadon C.'aruuis.sion 3 AN-19-06531 Cl Page 10 01730 10 (6 provision of a statute to have some purpose, force. and effect, and that no words or provisions are superfluous."49 Furthermore. when courts interpret the meaning of a statute, they do "not stop with the plain meaning of the text" even when the statute is facially unambiguous.50 Questions or statutory interpretation are decided on a sliding scale, "the plainer the language of the statute, the more convincing any contrary legislative history must be ... to overcome the statute's plain meaning."51 It is the Court's goal "to give effect to the intent of the law- making body with due regard for the meaning that the language in the provision conveys to others."52 This Court seeks to "adopt the rule of law that is most persuasive in light of precedent, reason, and policy."53 Determining whether a party must "strictly comply" with a statutory mandate depends on whether the language of the statute is directory or mandatory. Strict compliance is required if a statute is mandatory; whereas, substantial compliance is sufficient absent significant prejudice to the other party when a statute is directory.54 49 1(l. "' Id. (internal citations omitted) (citing State, CommercialFisheries Enity Comin )i v. Carlson, 270 P.3d 755, at 762 (Alaska 2012) (quoting.Arne, Dcp't ofC'ommurce, Only. A, , Econ. Der.. Div. ey Ins. v. Alrevka Pipeline Serv. Co., 262 P.3d 593, at 597 (Alaska 201 1)). " C'im ?I' Prtlde:. 372 P.3d at 248 (quoting Peninsida Mktg. Assn v. Stare, 817 P 2d 917, at 922 (Alaska 1991)). ",S. Anchorage Concerned Coal- hxt. v. il9nnicipaJhr (!fAnchorage Ud g1'd4Juvttnent. 172 P.3d 768, at 771-73 (Alaska 2007) (internal citations omitted). 5-1 Id, 5{ id Order Remanding Other Order 151 to the Alaska Oil and Gas Conservation Commission Hollis S. French v. Alaska Oil and Gas Conservation Commission 3AN-19-06531C1 Page I or30 Case law diverges as to the proper characterization of statutory directives. When the issue is one of doing or not doing something, or whelherss something must occur, the Alaska Supreme Court has typically characterized the statutory directive as a mandate. When the issue is one of timing, or it-hen5t' something must occur, the Alaska Supreme Court has typically characterized the statutory directive as discretionary. Provisions of AS 31.05.O60(a) that dictate whether an event must occur include: `'shall promptly fix a date for a hearing", "shall cause notice of the hearing to be given", "hearing shall be held", and "shall enter its order". Provisions of AS 31.O5.O60(a) that " When the issue is one of doing or not doing something, or whether something must occur, the Alaska Supreme Court has typically characterized the statutory directive as mandatory. (See Fonder v. 0(1, of Anchorage, W P.2d 817 (Alaska 1978) (The issue was whether the language in AS 36.05.070, which requires the city to publish applicable minimum wage schedules with bid specifications, was directory or mandatory. The court found that "[u]nless the context otherwise indicates, the use of the word 'shall' denotes a mandatory intent'*; therefore, the statute imposed a mandatory duty upon the city to publish the schedules.); 00, q/'St. Altay's v. St. Marv'x Native Corp., 9 P.3d 1002, at 1009 (Alaska 2000) (The relevant issue in this case was whether, under AS 29.45.670, the publication requirement was mandatory or directory. The court found the publication requirement of AS 29.45.670 mandatory; to satisfy the publication requirement local governments must publish notice in a newspaper of general circulation when one exists.); Lazy Alnuntain Land Cluh v. Matanuska-Susiina Borough Board of.44jusnnent and Appeals, 904 P.2d 373 (Alaska 1995) (In this case, the court held "the plain language of AS 29.40.030(b) is mandatory and requires that the municipality adopt a comprehensive plan..." The court came to this conclusion even though there were no words of limitation in the statute. The court reasoned that the procedural steps of zoning are typically considered mandatory and there was also no legislative intent for the statute to be construed as directory.). S° When the issue is one of timing, or when something must occur, the Alaska Supreme Court has typically characterized the statutory directive as directory. (See Kim v..dlyeska Seafoods lac., 197 P.3d 193 (Alaska 2008) (The issue was whether claimant's request fora hearing complied with the statute's time deadline. The court found that claimant's request did comply with the statute because the statute was directory not mandatory, so strict compliance was not necessary. Therefore, the court reversed and remanded so the board could exercise its discretion to determine whether it should extend the deadline for good cause.); In the Adatter of Mederholl, 24 P.3d 1234 (Alaska 2001) ("[T]his court and others have suggested that time limits for the issuance of findings of fact are directory and not mandatory, and that the mere lapse of time is not enough to require reversal.' "); Copper River .Schonl Dist. v..S'tale, 702 P.2d 625 (Alaska 1985) (The issue was whether the department was allowed a late scheduling for a requested hearing. The court found that the department could be allowed a late scheduling. It reasoned that even though the deadlines are not solely administrative guidelines designed to promote the orderly conduct of business because they also provide some procedural benefits to affected individuals, strict compliance with the statute is unnecessary because minor deviation from the deadline would result in little prejudice.);.Sotah Anchorage Concerned Coalition. Inc. v. A4unicipality nfAnchnrage hoard gfArijustnteni, 172 P.3d 768 (Alaska 2007) (The issue was whether the transcript filing deadline was directory or mandatory and the court found that the deadline was directory because the only effect of a late -Piled transcript was a delay; no prejudice resulted.). Order Remanding Other Order 151 to the Alaska Oil and Gas Conservation Commission Hollis S. French v. Alaska Oil and Gus Conservation Commission 3AN-19-06531 CI Page 12 of 30 12 C0 • dictate when an event must occur include: "promptly", "without undue delay". and "within 30 clays after the hearing". Where productive, the Court separately analyzes the provisions of the statute regarding whether and when the Commission must act.57 There is a three -pronged analysis courts employ to determine whether a statute is directory or mandatory. "A statute is considered directory if (I ) its wording is affirmative rather than prohibitive; (2) the legislative intent was to create 'guidelines for the orderly conduct of public business'; and (3) 'serious, practical consequences' would result it' it were considered mandatory."58 1. Due to the use of both prohibitive and affirmative words in the statute the legislature has not clearly indicated whether the word "shall" is mandatory or directorv. First the Court determines whether the statute contains "negative words that signify that the acts shall not be done at any time other than those designated."" If such words of limitation are present in the statute, courts are "constrained to consider the provision mandatory."f0 `' Case law creates difficulty tier courts interpreting a statute that employs bosh mandatory and directory mandates in same subsection or even the same sentence. For instance, the statute at issue specifies whether and when notice and a hearing must be held/occur in one sentence. Alaska case law interpreting mandatory verses directory mandates (see previous two footnotes) indicates that, as used in AS 31.05,060: "shall" is mandatory as to whether a hearing is held. whether notice is provided, and whether an order is issued; and "shall" is directory as to when a hearing is held, when notice is provided, and when an order is issued. The problem is that this interpretation seems to run contrary to the presumption that "Congress intended every word, sentence, or provision of'a statute to have some purpose, force, and effect, and that no words or provisions are superfluous' because it gives shall multiple meanings. (Estate nl'Khn ex rel. Alexander v. Core, 295 P.3d 380, at 386 (Alaska 2013)). This is especially true in cases where that very same statute, like the one at hand, use discretionary words, like "may". with mandatory words, like "shall", in the same statute. se S. Anchorage Concerned Coul., hie.. 172 P.3d at 771-73. 5' CRY nl'1'akntut v. Ryinan, 654 P.2d 785, at 799 (Alaska 1982). b1 Ciq',#Sl. Htii:v's v. St. Mar-s Native Corp., 9 P.3d at 1009. Order Remanding Other Order 151 to the Alaska Oil and Gas Conservation Commission Hollis S. wench i� Alaska Oil acid Gas Conservation Coinniission 3AN-19-06531CI Page 13 of 30 13 61 Because the Court seeks to holistically interpret this statute,"' it evaluates each subpart of AS 31.05_060.r2 The Court tints the legislature purposefully included one phrase of limitation (`'do not apply"), rive words of discretion ("may" or "need trot"), and six words of mandate ("shall") in the statute. The Court observes that only subsection (d) uses prohibitive words ('`do not apply"), but the legislature has otherwise clearly demonstrated its intent to differentiate where the commands of the statute are required and where the commands are discretionary. " Cose, 295 P.3d at 386. ' AS 31.05.060 states: (it)'file commission mrrr act upon its own motion, or upon the petition of an interested person. On the filing of a petition concerning a matter within the jurisdiction of the commission under this chapter. the commission .shall promptly fix it date fill- a hearing, and shall cause notice of the hearing to be given. The hearing shall be held without undue delay after the filing of the petition. The commission shall enter its order within 30 days after the hearing. (b) Except as provided in this subsection, any action by the commission under this chapter that has statewide or general application shall be performed in accordance with AS 44.62 (Administrative Procedure Act). Any action by the commission under this chapter that has application to a single well or single field need nor comply with the provisions of AS 44.62.3 30 - 44,62.630, but shall be performed in accordance with regulations of the commission d"igned to afford persons anectcd by the action notice and an opportunity to be heard. (c) Notwithstanding the requirements of (a) and (b) of this section that relate to fixing it date for a hearing and causing notice of the hearing to be given, for an action under this chapter that involves the exploration l'or or development of nonconvcntional gas and that has application to a single well or a single field, upon the request of it lessee or operator, the commission nor, where operations nti,4hr he, unduh, deterred approve a variance front the commission's regulations that apply to the well or field uriihow providiitq nowe and opporitwirr is he heard. In the exercise of its authority to issue the variance, (1) the commission map approve the variance if (A) the approval provides at least an equally effective means of accomplishing the requirement set out in the connnission's regulation; or (B) the commission determines thin the request is more appropriate to the proposed operation than compliance with the requirement of the regulation; and (2) the terms of the approval of the variance nap include exempting the lessee or operator from a requirement of a regulation if the commission determines that the requirement is not necessary or not suited to the well or field taking into consideration (A) the nature of the operation involved; (11) the characteristics (if the well or field for which the variance is sought: and (C) the reasonably anticipated risks of' the exemption from the requirement to human salety and the environment. Un The provisions of (c) of this section do nor apply to authorize approval of a variance from the commission's regulntions that refute to underground injection. (emphasis added). Order Remanding Other Order 151 to the Alaska Oil and Gas Conservation Commission Hollis S. French v. Alaska Oil and Gus Conservation Commission 3AN-19-06531C1 Page la of30 14 IC) Despite this distinction, no words in AS 3 1.O5.06O plainly delineate whether "acts shall not be clone a( any time other than those designated."(-' Under the first prong of the mandatory/ discretionary analysis the Court finds that legislature has not provided a clear indication as to whether the word "shall" is mandatory or directory with regard to the provisions that determine whether and when the Commission must provide notice of a hearing, hold a hearing, and issue an order."4 When express words of limitation are absent. a court should evaluate the other mandatory/ directory analysis factors.r" 2. AS 31.05.060 has a dual purpose to protect rights of interested persons and serve as guidelines for the orderly conduct of business. Under the second prong of the mandatory/ directory analysis, the Court next considers whether the statutory mandates are designed to provide guidelines for the orderly conduct of business.6' The Alaska Supreme Court explains that statutory provisions "intended to serve primarily as guidelines for the orderly conduct of public business are more likely to be considered directory,"" Whereas, statutory provisions that relate to notice or the opportunity to be heard, or that establish date, manner, and mode of assessment are designed to protect the rights or interested persons and are, therefore. mandatory!" "' Cilr nfYakwal v. Rrivan, 654 P.2d 785, at 789 (Alaska 1982). "' See Ronan. 654 P.2d at 789. 0 C'i(v nfSt. Malys v..Se. Menyls Nolive Corp., 9 P.3d 1002, 1010 (Alaska 2000) (citing Rymon, 654 P.2d 785). City af.St. Mays v..51. Morl''s .Nalive Corp., 9 P.3d at 1009. 'a Ryinan, 654 P.2d at 790. 4s Id. at 790-91; (see also Alreska .Sucllnods hrc., 197 P.3d 193 (Workers' Compensation Appeals Commission); I('iedc)•Iroll, 24 P.3d 1234 (Bar Association Disciplinary Board); Copper River School Oise, 702 P.2d 625 Order Remanding Other Order 151 to the Alaska Oil and Gas Conservation Commission Hollis S. French v. Alaska Oil and Gas C'onserraiion (70MMi.YBlfill 3AN-19-06531C1 Page 15 of 30 (t) The provisions that determine whether the Convnission must provide notice of a hearing, hold the hearing, rind issue an order are mandatory. The provisions of AS 31.05.060(a) that delineate whether the Commission must act are not written merely to provide guidance for the orderly conduct of business, but instead are designed to protect the rights of interested persons. Thus, this Court characterizes the provisions that determine whether the Commission must provide notice of a hearing, hold the hearing, and issue an order mandatory. The statute, read as a whole, supports this interpretation.' Subsection (a) is written in unambiguous language, which clearly provides an interested person a prompt right to a hearing. Despite limiting the application of other rights conferred by the Administrative Procedure Act, persons affected by the Commission's acts that are applicable to only a single well or oil field are ensured the right to notice and an opportunity to be heard under subsection (b). Thus, subsection (b) emphasizes the importance the legislature placed on the right to notice and the opportunity to be heard. Subsection (c) allows the Commission to issue a variance without providing notice or an opportunity to be heard only when operations might be unduly delayed and a number of other conditions are met. Finally, subsection (d) restricts when the Commission may issue a variance. (Departent of Education); South AnchoraXe Concerned Coatilion, hic.. 172 Pad 768 (Municipality ol'Anchorage Board of Adjustment); Fowler, 583 P.2d 817 (Department of Labor): (WY nl'.St. Ahoy "s r. ,St. Hi n-'s• Ahuive Corp., 9 P.3d 1002, at 1009 (Alaska 2000) (Application of Public Notice Requirements to Cities); La_r Mountain Land Club, 904 P.2d 373 (Borough Board ol'Adjustment and Appeals)). on .See note 02. Order Remanding Other Order 151 to the Alaska Oil and (;as Conservation Commission Hollis S. French v. Alaska Oil cold Cas Conservation 0munis.cion 3AN-19-06531CI Page 16 of 30 16 Case law also supports a mandatory characterization for provisions of the statute that determine whether the Commission must provide notice of a hearing, hold the hearing, and issue an order mandatory. For instance, in Fowler v. City gfkxhortge, the issue was whether the language in AS 36.05.070. which requires the city to publish applicable minimum wage schedules with bid specifications. was directory or mandatory (whether the city had to publish bid specifications).70 The court found that "[uJnless the context otherwise indicates, the use of the word `shall' denotes a mandatory intent": therefiire, the statute imposed a mandatory duty upon the city to publish the schedules.71 Similarly, in City gf.St. Haiy's v..7t. Marv's Native Corp., the relevant issue was whether, under AS 29.45.670, the publication requirement was mandatory or directory (whether the local government was required to provide notice regarding tax liability).72 Under the second and third prongs of the mandatory/ directory analysis, the court found that the publication requirement of AS 29.45.670 mandatory. 73 The court came to this conclusion because the publication requirement was more than an administrative guideline and, when weighed, a directory interpretation of the statute led to more serious practical results than a mandatory interpretation.74 The court stressed that while: not an insurance against local maladministration, action by ordinance is a reflective process that affords an opportunity for expression of opinion; this manifestly is the rationale of statutory requirements of publication or notice i' 583 P.2d 817 (Alaska 1978). n Id. 7' 9 P.3d 1002, al 1009 (Alaska 2000). 71 w. 74 id. Order Remanding Other Order 151 to the Alaska Oil and Gas Conservation Commission Hollis S. French v..4laska Oil and Gus Conservation Commission 3AN- 19-0653 1 CI Page 17 of 30 17 of pendency of ordinances. Other purposes of a publication requirement may be to advise those interested that the matter is up for consideration, or to m1brm them with reference to any ordinance that has been adopted so that they may regulate their actions and conduct accordingly.75 Like the publication requirements in Fowler and City gfS1. Marys, the requirement to fix a date, provide notice, hold a hearing, and an issue an order under AS 31.05.060(a) apprises those interested that a matter is up for consideration by the Commission. Therefore, this Court finds that the second prong of the mandatory/ directory analysis favors a mandatory characterization of the provisions that indicate whether the Commission must act. h) The provisions that cletertnine when the Commission must provide notice of a hearing, hold the hearing, and issue an order are directory. In contrast, the provisions of AS 31.05.060(a) that delineate when the Commission must act are written merely to provide guidance for the orderly conduct of business. Therefore, this Court characterizes the provisions that determine when the Commission must provide notice of a hearing, hold the hearing, and issue an order directory. Case law supports the notion that when the issue is one of timing, or when something must occur, "shall" is typically characterized as directory, so long as there is no prejudice to the other party, For instance, the issue in Copper River School Dist. v. State was whether the requirement to hold a hearing within a certain timeline was Id. (citing 5 Gugenc McOvillin. Ahndclpal C'nr7,nru0nns : 16,76. al 372). Order Remanding Other Order 151 to the Alaska Oil and Gas Conservation Commission Hollis S. French r. Alaska Oil and Gar Conservalim Cononission 3AN-19-06531C1 Page 18 of 30 18 -11 directory or mandatory (when to hold a hearing).16 The Department of Education failed to schedule a hearing in the allotted 30 clay period specified in the Alaska Administrative Code.77 The court found that "[i]f the regulation is mandatory, strict compliance is required; if it is directory, substantial compliance is sufficient absent significant prejudice to the other party."7H After carrying out the three pronged analysis, and noting that "the deadline at issue serves a dual purpose" under the second prong of the mandatory/directory analysis, the court ultimately held the regulation was directory. 7`i It reasoned that even though the deadlines are partially designed to provide procedural benefits to affected individuals, strict compliance is unnecessary because minor deviation from the deadline would result in little prejudice." Therefore, a late -scheduled hearing constituted substantial compliance with the regulation.81 Additionally, in South Anchorage Concerned COalil1017, Inc. V. Municipalily of Anchorage Board ofA4jusonent, the issue was whether the transcript filing deadline was directory or mandatory (when is the deadline fir tiling transcripts).82 "rhe court found that 76 !d. 77 702 P.2d 625 (Alaska 1985) (explaining that the applicable regulation provides that "[i]n no event will the date of the hearing be more than 30 days after the [school district's] request ... is received by the department."). 79 m. 71 Id. nu Id. et !d. '2 172 P.3d 768 (Alaska 2007). Order Remanding Other Order 151 to the Alaska Oil and Gas Conservation Commission Hollis S. Frenah v. Alaska Oil and Gar Conswvwtion Couonission 'AN -19-00531Cl Page 19 of 30 19 -45 the statutory deadline was directory because the only effect of a late -filed transcript was a delay; therefore, no prejudice resulted.x' in line with case law, this Court finds that the second prong of the mandatory/ directory analysis favors a directory characterization of the provisions that indicate when the Commission must act. in summary, the second prong of the mandatory/directory analysis favors a mandatory characterization of the provisions written to protect the rights of interested persons (whether the Commission must fix a date and provide notice of a hearing, and issue an order) and a directory characterim(ion of the provisions written to serve as guidelines for the orderly conduct of public business (when the Commission must fix a date and provide notice of a heating, and issue their order). 3. The Court's interpretation of AS 31.05.060(a) minimizes prejudice and yields less "serious practical consequences". Finally, the Court evaluates whether "serious practical consequences" result from its characterization of the provisions of AS 31.05.060(a) regarding whether and ivlTen the Commission must act. RJ " Id. (stating: "The language of the provision does use the word 'shall,' which. in its ordinary use, is an affirmative command that is often taken to be mandatory. But we have held that in some contexts, namely in the `absence of injury to the defendant and in the absence of a penalty for failure to comply with the statute, 'shall' denotes simple futurity rather than n command.' In Suite v. Schnell. for example, we applied that rule to hold that a statute providing that `Iwf i(hin 30 days after termination of the hearing.... the director shall stake an order on hearing' was directive, not mandatory, because the statute 'imposes no penalty or consequences for failing to rule timely.' We further noted that to read the statute as imposing an absolute bar on state action alter the thirty -day period expired would lead to 'absurd and undesirable results.' "). "'t C.'ifi of Si. Adary s v. St. rt*vy'.r Native Corp., 9 11.3d at 1009. Order Remanding Other Order 151 to the Alasha Oil and Gas Conservation Commission Hollis S. French v. Alaska Oil and Geis Conservation Commission 3AN-19-06531C1 Page 20 of 30 20 14 b a) Less "serious practical consequences" result ,from a nnordalory characterization gf the provisions that determine whether the Commission must provide notice of a hearing, hold the hearing, and issue an order. Under a mandatory characterization of the provisions articulating whether the Commission must act, there is little possibility for serious practical consequences. An aggrieved party could continuously petition for a hearing, in effect, creating an ongoing request. Though, it is (lie Court's position that this is an unlikely factual circumstance and one remedied by existing law. in White v. Slate, Department gl'Natural Resources, the Supreme Court found that while holding a hearing is one of the basic components of due process, it is subject to an exception in the context of administrative Iaw.R5 "[T]here is no requirement, constitutional or otherwise, [tier] a hearing in the absence of substantial and material issues crucial to (the) determination."" Thus, the Court finds that it is unlikely for a petitioner to successfully petition for continuous hearings before the Commission because it is unlikely that "substantial material issues crucial to the determination" would be a continuous circumstance. The Court finds it is not likely that serious practical consequences will result from a mandator' characterization of the provisions that articulate whether the Commission must act. Serious practical consequences do result firom a directory (or discretionary) characterization of the provisions specifying nrheiher the Commission must act. A xs Gotinein v. Stoic. Dept (J'Not. Res., 223 P.3d 609. at 622 (Alaska 2010). x" White v. Slow, Depuronent uJ',V(nm•al Resources, 984 P.2d 1122, at 1 126 (Alaska 1999) (citing Estate nfA4iner v. Cbnonercial Fisheries Enny C'umm n, 635 P.2d 827, at 834 (Alaska 1991) (quoiim, NLRB v. Baw Shoe Co., 377 P.2d 821. at 826 (4th Cir.1967)). Order Remanding Other Order 151 to the Alaska Oil and Gas Conservation Commission Hollis S. French v. Alaska Oil and Guy Conservation C'nnunierion 3AN-19-06531C1 Page 21 of 30 21 ,q� directory characterization of those provisions creates a possibility of injury to the defendant and offers no penalty if the Commission fails to comply with the statute. if the question whether the Commission must act is interpreted to denote a simple futurity rather than a command, an interested person seeking a hearing may never attain one.a7 The Commission may perpetually assert "holding a hearing prior to the conclusion of an investigation would be premature" with no penalty or recourse for an interested patty. The practical effect of this interpretation is that the Commission could deny hearings indefinitely. This "serious practical consequence" frustrates the fundamental purpose of the statute. Therefore, under the third prong of the mandatory/ directory analysis, the Court finds a mandatory characterization of the provisions articulating whether the Commission Hurst act is preferred. b) Less "serious practical consequences" residt front a directory characterization of the provisions that determine when the Commission inust provide notice of hearing, hold the hearing, and issue an order. Under a mandatory characterization of the provisions articulating when the Commission must act, there is a possibility for serious practical consequences. For instance, the Commission could be forced to hold a hearing and issue an order on a matter, prior to the conclusion of its statutory duty to investigate whether waste occurred. The Court notes that the Commission is statutorily bound to inquire into and prevent "t Stale, Dept gf"Connnerce & Econ' Der., Div. gflns. 1. Schnell, 8 P.3d 35I, at 357 (Alaska 2000) (citing Comm'r gllnc. v. Snyker. 218 Ga. App. 716, 463 S.E. 2d 163. at 166 (Alaska 1995) (stating, "In Commissioner n%tnsurance r. Striker, the Georgia Court of Appeals held that '[i]n its ordinary significance. 'shall' is a word of command; however. in the absence of injury to the defendant and in the absence of a penally for failure to comply with the statute, 'shall' denotes simple futurity rather than a command.* ")). Order Remanding Other Order 151 to the Alaska Oil and Gas Conservation Commission Hollis S. French v. Alaska Oil andGas Conservation C'ommis,sion 'AN -19-06531Cl Page 22 of 30 22 r waste.88 Alaska Statute 31.05.095 states " [tjhe waste of oil and gas in the state is prohibited." Section 31.05.030 specifically awards the Commission authority to prohibit waste. This provision states the "commission shall investigate to determine whether or not waste exists or is imminent, or whether or not other facts exist which justify or require action by it.'*R9 Waste has a definition specific to the oil and gas context and is defined in AS 31.05.170.'a Under a directory (or discretionary) characterization of the provisions articulating when the Commission must act- serious practical consequences are not likely. When a statute is characterized as directory, substantial compliance is acceptable absent significant prejudice to the other party.`'1 A directory characterization of the provisions articulating when the Commission must act affords the Commission discretion to NB,See AS 31.05-31.30. "° AS 31.05.030(b). '"' AS 31.05.170(15) "waste" means, in addition to its ordinary meaning. "physical waste' and includes (A) the inefficient, excessive, or improper use of, or unnecessary dissipation of, reservoir energy; and the locating, spacing, drilling, equipping, operating or producing of any oil or gas well in a manner which results or tends to result in reducing the quantity of oil or gas to be recovered from a pool in this state under operations conducted in accordance with good oil field engineering practices; (0) the inefficient ahove-ground storage of oil; and the locating, spacing, drilling, equipping, operating or producing of an oil or gas well in a manner causing, or lending to cause. unnecessary or excessive surface loss or destruction of oil or gas; (C) producing oil or gas in a manner causing unnecessary water channeling or coning; (D) the operation of an oil well with an inefficient gas -oil ratio; (L) the drowning with water of a pool or pan of a pool capable of producing oil or gas, except insofar as and to the extent authorized by the commission; (F) underground waste; (G) the creation of unnecessary fire hazards; (N) the release, burning, or escape into the open air of gas, front a well producing oil or gas, except to the extent authorized by the commission; (1) the use of gas for the manufacture of carbon black, except as provided in this chapter; (J) the drilling of wells unnecessary to carry out the purpose or intent of this chapter. "t sotuh Anchorage Concerned Caatition, /ne. v. Munieipatitr ql Anrhoragc Board (y'Ac#11yonem, 172 P.3d 768, at 772 (Alaska 2007). Order Remanding Other Order 151 to the Alaska Oil and Gas Conservation Commission Hollis S. French v. Ataska Otl and Gas Conservation Commission 3AN-19-06531 Cl Page 23 of 30 23 determine its timeline for hearings based on pending investigations; this prevents the serious practical consequence of the Commission being required to set a hearing prior to the conclusion of an ongoing investigation. The requirement that there be no prejudice to the other party inhibits serious practical consequences to the party seeking a hearing. This is because the Commission may not alleviate its statutory duty to hold a hearing once one is requested by perpetually claiming a matter is under Investigation —that would be prejudicial to the other party. Under the third prong of the mandatory/ directory analysis, the Court finds a directory characterization of the provisions articulating when the Commission must act has less "serious practical consequences". 4. Application —this Court's interpretation of the language of AS 31.05.060(a) as applied to the Commission's denial of Mr. French's petition. After a thorough consideration of the language of the statute and performing the mandatory/ directory analysis, the Court characterizes the provisions of AS 31.05.060(a) that articulate whether the Commission must act mandatory, and the provisions that articulate when the Commission must act directory. As applied to the Commission, the provisions of AS 31.05,060(a) that are mandatory include: fix a date for a hearing, cause notice of the hearing to be given, hold a hearing, and enter an order. The provisions of AS 31,05.060(a) that are directory include those that specify when the Commission should carry out the mandatory actions: "upon the petition of an interested person", "promptly", "without undue delay", and "within 30 Order Remanding Other Order 151 In the Alaska Oil and Gas Conservation Commission Hollis S French r.: rluska Oil and Gus Conservation C'annnission 3AN-19-06531CI Page 24 of 30 24 IMM days after the hearing'. Substantial compliance with these deadlines is satisfactory absent prejudice to the other party. The Court finds this characterization most persuasive in light of the precedent, reason, and policy. As applied to Mr. French's petition on waste, the Court finds the Commission erred when it denied Mr. French's petition for a hearing tinder both the mandatory and directory provisions of AS 31.05.060(a). Accordingly. fixing a date for a hearing, causing notice of the hearing to be given. holding a hearing, and entering an order are mandatory absent findings consistent with While, cited above.`' This means, AS 31.05.060(a) permits the Commission to delay, but not to cleny, Mr. French a hearing when there is pertinent information to the hearing available or actively Sought.`'3 In Other Order 151. the Commission denied Mr. French a hearing after finding that a hearing would be premature." The Commission made no findings consistent with While.`)5 In fact, the information necessary for a hearing on waste was concurrently sought and attained, which runs counter to findings consistent with While.96 "Z White v. 5'iate, Department gl)Vantral Resources. 984 P.2d 1122, at 1126 (Alaska 1999) (citing Eshae g0liner v. Commercial Fisheries Enny Comm'n, 635 P.2d 827, at 834 (Alaska 1981) (yuodng A'LRB v. Rau Shoe Co., 377 R2d 821, at 826 0(h Cir.1967)). See 11,7tite, 984 P.2d at 1126. " Record at 000002; Appellee's Brief at 2, 6, and 8. Sept. 13, 2019. Id. Record at 000002; Notice of Completion of Investigation, Feb. 5, 2020. Order Remanding Other Order 151 to the Alaska Oil and Cas Conservation Commission Hollis S. French r. Alaska Oil and Gas Conservation Conuulssion 3AN-19-06531C1 Page 25 of 30 25 t Additionally. the Commission did not choose to delay the hearing.07 Despite outright denying Mr. French a hearing, the Commission later attempts to assert the order was merely a delay and Mr. French could have waited until the investigation was completed." The Court rinds this argument problematic for a few reasons. First, the Commission could have complied with the statute by fixing a date for a hearing enough into the ftnure to allow for its investigation to end. The Commission itself has the expertise and discretion necessary to know the status of its investigations and regulatory actions. Further, there is no reason why a hearing date cannot be continued for a later date, pending an ongoing investigation. The Commission's argument is also troubling because it is entirely inconsistent with the Court's interpretation of the mandatory provisions AS 31.05,060(a), which the Court found are intended to afford interested persons notice of an issue and an opportunity for expression of opinion.99 The Court found fixing a date for a hearing, causing notice of the hearing to be given, holding a hearing, and entering an order mandatory under AS 31.05.060(a). The Court holds that the Commission erred because it (lid not comply with any of these mandates.100 Record at 000002; Appellee's Brief at 2, 6. A, Sept. 13, 2019. " Appellee's Brief at 12 Sept. Li, 2019; We also Notice of Completion of Investigation, Feb. 5, 2020 (stating "Rather than wait until the AOGCC concluded its investigation, French filed this appeal."). /d. (citing 5 Fugene NlcQui11ill,.i/nnicipa/C'ntyiorWinns• j 16.76, it 72). loll In its analysis, the Court finds it imperative distinguish the topicalih of Mr. French's hearing request. While the record reflects the Commission held a hearing to determine the canoe uj the identical irell faihaer, (Appellee's Brief at 3--6, Sept. 13. 2019 (citing Other Order 149)) it did not hold a hearing on i complaint of iruste from either of those wells. The question why the mells firiled was dealt with as a result of a hearing initiated by the Commission's own motion. (Id.), At that hearing, held on February lith, the Commission determined BPXA's modeling was Order Remanding Other Order 151 to the Alaska Oil and Gas Conservation Commission Hollis S. French r. Alaska Oil and Gar Conservation Commission 3AN-19-0653ICI Page 26 of 30 26 cZ In its analysts the Court found that substantial compliance with the directory, or deadline -driven, provisions of AS 31.05.060(a) is satisfactory absent any prejudice to the other party. The Court finds that there was no substantial compliance with the directory requirements of AS 31,05.060(a). The Court also finds that denying a hearing outright is prejudicial to an interested person when there is pertinent information available or actively sought. This is because an outright denial forecloses the option of a delay, Therefore, the Court holds the Commission erred by tailing to comply with the directory provisions of AS 31,05.060(a). The Court now turns to the legislative history and purpose of the statute.'al ii. Legislative History and Legislative Purpose of Alaska Statute 31.05.06("a). An evaluation of the statute's legislative history is not particularly fruitful as the text of AS 31.05.060(a) has remained almost entirely consistent since the statute's origin in 1955.102 However, it is noteworthy that the Legislature initially created the Commission as we know it today to obviate a "potential conflict between the state's inadequate and its understanding of the failures was incomplete. (lei. at 4-5). Additionally, the Commission took regulatory and enforcement actions to remedy the Failures. (lrl.). However, the Commission made no inquiry into, or findings of, waste in the previous hearing insofar as this Court can tell from the briefings or the record. "" When courts interpret the meaning of a statute, they do "not stop with the plain meaning of the teat" even when the statute is facially unambiguous. (Estate of Kim ex reL Alexander r. Case. 295 P.3d 380. at 386 (Alaska 2013)). "2 Compare SLA 1955, ch. 40, $ 9(6) ("The Commission may act upon its own motion, or upon the petition of any interested person. On the filing of a petition concerning as matter within the jurisdiction of the Commission, the Commission shall promptly fix a date for a hearing thereon, and shall cause notice of the hearing to be given. The hearing shall be held without undue delay after the filing of the petition. The Commission shall enter its order within 30 days after the hearing."), wilh Alaska Statute 31.05.060(a) ("The commission may act upon its own motion, or upon the petition of nn interested person. On the filing of a petition concerning a matter within the jurisdiction of the commission under this chapter, the commission shall promptly fix a date for a hearing, and shall cause notice of the hearing to he given. The hearing shall he held without undue delay aver the filing of the petition. The commission shall enter its order within 30 days after the hearing.") (underlined portions are differences). Order Remanding Other Order 151 to the Alaska Oil and Gas Conservation Commission Hollis S. French v. Alaska Oil and Gas Conservation Cmuurircion 3AN-19-06531CI Page 27 of 30 27 T3 r revenue interest in high production rates on state leases and the state's conservation interest in protecting total ultimate recovery.-" The Commission was established to "carry forth statutory mandates consistent with the pt-otection,for health. sgfety, and the environment" and "serve[] as an acjticlicalory forttnt For resolving certain oil and gas disputes between owners."10; The Commission's clients include colacerned citizens, federal and state agencies. and the oil and gas industry.1115 Mr. French's petition does not ask for any regulatory actions: he merely requests a judicial remedy —a hearing on (lie question of waste. The Commission is a quasi-judicial agency housed within the Department of Administration and, as such, must provide the judicial remedies the legislature enunciated in the statute. (aa all Department of Commerce. Community, and Economic Development htu)s'++t+)ae.ommeree'il'isk"t o.'n"bi'u,"ce/Aboutlls!tlistor�:asp� (last visited Dec. 18, 2019) (use navigation tabs> Slate orAlaska> Commerce Alaska O(I R Gas Conservation Commission> About us> History) "With the advent of production from Prudhoe Bay in 1977, the Legislature became concerned with the potential conflict between the state's revenue interest in high production rates on state leases and the state's conservation interest in protecting total ultimate recovery. To obviate its concern, the Legislature amended AS 31.05 by Chapter 158, SLA 1978 to create a new Commission, effective January 1, 1979, as an independent quasi-judicial agency within the executive branch of the state. Initially, the new Commission was housed within the Department of Natural Resources, but in 1980 it was transferred to the Department of Commerce and Economic Development. More recently, Governor Hickel transferred the Commission to the Department of Administration on February 17, 1994." 104 Department of Commerce, Community, and Economic Development htJ)s:/_)+v+'we0nlmefCekrl8Sk1.L'OVN'fb!aOLCCiAbOU1tIS.atipx (last visited Dec. 18, 2019) (use navigation tabs > About us) (emphasis added). ns Id. In passing, this Court also notes that the Commission's own regulations, which this Court does not presume to interpret, re -enforce this Courts interpretation that the provisions of AS 31.05.060(a) that articulate n•heiher the Commission must act are mandatory. The Commission itself understands the requirement to set a hearing to be mandatory. (.See Alaska Admin. Code tit. 20, § 25.540(b) "On its own motion al, y'n irrinon regueci for a public hearing is received concerning a matter within thejurisdiction of the commission under this chapter, the commission will publish notice in an appropriate newspaper as provided in AS 31.05.050(b). In the notice, the commission will provide the essential details orthe matter and set out the place for the public hearing, the date, and the time for the public hearing. The commission will set a hearing date that is at leas( 30 days after the date of publication" (emphasis added)). Order Remanding Other Order 151 to the Alaska Oil and Gas Conservation Commission Hollis 5. French v, Wa.sko ()it and Gas Conservation Comi+tirsion 3AN-19-06531CI Paoe 28 of 30 28 in summary, the minimal legislative history of AS 31.05.060(a) suggests that the legislature intended this statute to afford Commission's clients, including concerned cilizens, a forum to raise their concerns and an opportunity to be heard. As a quasi- judicial agency. it is in the public interest that the Commission follow through with the mandate to provide hearings when requested by interested persons and be granted discretion to set hearings in accord with timelines for investigation. iV. CONCLUSION. Construing the provisions of AS 31.05.060(a) that articulate whether the Commission must act mandatory, and the provisions that articulate when the Commission must act directory is the "most persuasive [option] in light of precedent, reason, and policy."107 An assessment of the statutory scheme governing the Commission and relevant and case law support the notion the Commission is required to fix a date for a hearing, provide notice of the hearing. hold the hearing, and issue an order but the Commission has discretion as to when it completes these actions, so long as no prejudice to the other party results. Because the record reflects that no hearing has occurred nor been noticed. this Court finds that the Commission erred when it denied Mr. French a hearing. "therefore, this Court remands Other Order 151 to the Commission so it may Fix 1° S. ,1 nchnrage C'nncerned Coal., Inc., 172 Pad at 771-73. Order Remanding Other Order 151 to like Alaska Oil and Gas Conservation Cmnmission /Hollis S. French r.:Ilaxka Oil and Gar Conservation Conl1114vVian 3 AN-19-06531 C I Page 29 of 30 29 RS a date for a hearing on Mr. French's petition on waste. in compliance with the mandatory directive under AS 31.05.060(a). ORDERED this 7"' day of April, 2020 at Anchorage, Alaska. / on. Herman alker, Jr. Superior Court .hedge J� I certify that on C1 ( a copy at' the above was E-11miled or mailea to the following: 14. French, T. dallantine . J. Garofalo, dpdicial Law Order Remanding Other Order 151 to the Abtstm Oil and Gas Conservation Commission Hollis S. Frcvrch v. Alatku Oil uad c(1V (onsen"Ition Conaoi sio)7 3AN-19-06531CI Page 30 of 30 / 30 6/18/2020 Alaska Journal Slope well review reveals no issues beond those flagged b BP r�L1�s�11� of-C Slope well review reveals no issues beyond those flagged by BP By: Elwood Brehmer (/authors/elwood•brehmer), Alaska Journal of Commerce Post date: Thu, 01 /25/2018 - 3:13pm An emergency engineering review of all North Slope wells ordered last October by state regulators did not reveal any significant issues but a regulation change is still likely. The Alaska Oil and Gas Conservation Commission issued the emergency directive to North Slope production and exploration companies Oct. 30 after it was determined a BP well at Prudhoe Bay Drill Site 2 that failed and sprayed about 100 gallons of oil last April did so largely due to its outer surface casing being set in the permafrost — and the permafrost thawing and subsiding. The commission, which regulates all of the highly technical subsurface oil and gas activities in the state, ordered all wells found to have similar construction to be shut in by Dec. 31. BP had previously plugged five producing wells at Prudhoe after its own review spurred by the April leak, according to a company spokeswoman. The hot fluids produced from a well can melt the surrounding permafrost, causing the thawed water to drain away and leading the ground to sink. That gradually puts the outer well casing under a compression load, which combined with other pressure and temperature affects, can cause the casing to fail, according to BP'S report to the commission on the well failure. AOGCC Commissioner Cathy Foerster said in a Advertisement brief interview that every operator did the ssion, which found there are no other wells with evaluation and reported back to the commi construction characteristics mirroring the failed well other than those previously reported and shut in by BP. ConocoPhillips, operator of the large Kuparuk and Alpine oil fields, has a handful of wells with casings set in the permafrost, but other elements of construction necessary for the failure to occur aren't present in those wells, according to Foerster. According to AOGCC records, there are more than 3,700 wells on the Slope, of which, nearly 1,600 are active production wells. The rest are injection, disposal or idle production wells. 1/2 https://www.alwkai-mal.eom/2018-01-25/stope-well-review-reveals-no-issues-beond-those-flagged-bp 6/18/2020 Alaska Journal Slope well review reveals no issues beond those flagged b BP ng a regulation change that fro ie well review, the commission is pro, Despite the good news ells to be set below the bottom of the permafrost to would require the surface casings of all future w prevent history from repeating itself. "Just to make sure that after this set of commissioners and engineers are gone in the future it can't happen again we're going to prohibit setting that casing string in the permafrost," Foerster said. No one showed up to testify at a Jan. 4 public hearing to discuss the regulation change. "Usually what we do is pretty boring and this is just another example of that," Foerster added. Elwood Brehmer can be reached at elwood.brehmer@alaskajournal.com (mailto:elwood.brehmer@alaskajournal.com). Updated: 01/25/2018 - 3:13pm Alaska Journal of commerce 300 W. 31 st Avenue Anchorage, AK 99503 Phone:907-257-4200 Outside Anchorage, toll -free: 800-478-4200 Copyright © Binkley Co. All rights reserved. Contact Us (/contact) Y) 2/2 https://www. alaskajoumai.com/2018-01-25/slope-well-review-reveals-no-issues-beond-those-flagged-bp