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ST0-136 - Symantec System Recovery 2011 Technical(R) Assessment - Dump Information

Vendor : Symantec
Exam Code : ST0-136
Exam Name : Symantec System Recovery 2011 Technical(R) Assessment
Questions and Answers : 111 Q & A
Updated On : February 15, 2019
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ST0-136 Symantec System Recovery 2011 Technical(R) Assessment

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ST0-136 exam Dumps Source : Symantec System Recovery 2011 Technical(R) Assessment

Test Code : ST0-136
Test Name : Symantec System Recovery 2011 Technical(R) Assessment
Vendor Name : Symantec
Q&A : 111 Real Questions

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Symantec Symantec System Recovery 2011

Symantec equipment recuperation provides flexible recovery of physical and virtual techniques | killexams.com Real Questions and Pass4sure dumps

MOUNTAIN VIEW, CA--(Marketwire - 04/04/eleven) - Symantec Corp. (NASDAQ:SYMC - information) these days announced its method to provide groups of all sizes with a tailored strategy to remedy their records, system and utility recovery challenges to greater meet stringent recovery time ambitions and hold their enterprise up and operating. As a part of its broader downtime remediation strategy, Symantec is additionally delivering new healing updates and platform guide to Symantec system recuperation 2011, formerly Backup Exec system recuperation, for both physical and digital environments.Symantec's downtime remediation method comprises an greatest mix of solutions to clear up consumers' healing challenges:

  • Symantec gadget restoration offers complete device healing in minutes, even to distinctive hardware, bare steel, far flung locations or virtual environments, to reduce enterprise downtime
  • Symantec Backup Exec eliminates backup home windows and helps consumers meet recovery factor ambitions via granular recuperation of actual and virtual environments
  • Symantec ApplicationHA allows for computerized monitoring and recuperation for virtual purposes operating in VMware
  • click on to Tweet: Symantec device recuperation offers flexible recovery of actual and digital techniques: http://bit.ly/ftlofu"Symantec presents confirmed know-how to aid our customers improve records, techniques and applications to avoid disruption to their business," mentioned Amit Walia, vice president of product administration, Symantec. "Symantec system restoration shortens the restoration time window with new elements such as the capacity to seriously change a USB equipment right into a recuperation disk and further flexibility to the customizable recuperation disk wizard."Symantec analysis suggests that mess ups can have a major have an impact on on a company and businesses of all sizes are at risk of downtime. Symantec's 2011 SMB disaster Preparedness Survey discovered that almost all of small organizations surveyed are nevertheless unprepared to contend with a disaster and fifty four percent of SMB customer respondents stated they've switched SMB vendors because of unreliable computing methods. in a similar fashion, Symantec's 2010 disaster healing Survey, which surveyed commercial enterprise companies, found that the time required to get well from an outage is twice provided that respondents understand it to be.attainable now, Symantec equipment recovery 2011 provides the following new facets:

  • All-in-one backup and healing USB machine: With new wizard performance, purchasers can readily seriously change a USB device into a bootable Symantec gadget recuperation Disk and into a backup storage machine, creating an all-in-one backup and recuperation USB device to support reduce boot time and pace up the restoration procedure.
  • better centralized management: Symantec equipment recovery management answer is a extremely scalable answer designed to centrally manage significant numbers of customers from a single administration server. The Symantec device recovery management answer can now be put in to and hosted on home windows Server 2008 R2 sixty four-bit environments.
  • improved customizable healing disk wizard: extra flexibility has been brought to the customizable restoration disk wizard with the alternative to select an ISO photo as the source for a custom recovery disk. here is specifically useful for bigger enterprise corporations that already utilize a customised version of the Symantec equipment recovery Disk and would want to use it because the supply for future changes to their healing atmosphere.
  • Platform help: Symantec equipment restoration comprises updated assist for the newest Microsoft home windows, Linux, VMware, Microsoft Hyper-V, and Citrix XenServer operating programs and purposes
  • supporting rates

  • "We had lots of success trying out the beta of Symantec gadget restoration and comprehend it will get our methods again up and working immediately in the event of a disaster or outage." -- Timothy Reider, system administrator, moms nutritional middle.
  • "Symantec system recovery is an effective answer that has the potential to at once get well our techniques. I infrequently must have interaction with the product after it is determined, and i can get granular repair in a snap." -- Joseph LaGrosse, director of IT, Pepperweed Consulting.
  • "assist for the Microsoft 2010 latitude of server items coupled with a administration answer with x64 help ensures I don't have any problems recommending Symantec device healing to any person trying to find a straightforward to make use of and manage backup answer both as a main, creation backup solution or as a quick equipment recuperation solution for vital server techniques. The P2V and V2P points make this a valuable device for anybody with a Microsoft or VMware virtualization solution. The potential to fix to diverse hardware is genius!" -- Mathew Coomber, technical and revenue guide manager, Elytis.
  • connected

    join with Symantec

    About Storage from Symantec Symantec helps agencies secure and manipulate their assistance-pushed world with storage management, email archiving and backup & recuperation solutions.About Symantec Symantec is a worldwide leader in proposing protection, storage and programs administration options to help consumers and groups comfortable and manipulate their tips-driven world. Our utility and capabilities give protection to towards greater hazards at extra facets, extra absolutely and effectively, enabling self belief at any place suggestions is used or saved. extra suggestions is available at www.symantec.com.observe TO EDITORS: if you want additional info on Symantec business enterprise and its items, please consult with the Symantec information Room at http://www.symantec.com/information. All costs noted are in U.S. bucks and are legitimate only within the u.s..Symantec and the Symantec brand are logos or registered trademarks of Symantec organization or its affiliates in the U.S. and other countries. different names may be emblems of their respective owners.Technorati Tags Symantec, Backup Exec, equipment recovery, VMware, backup and healing, small agencies


    Symantec Simplifies Backup and healing with New V-Ray-Enabled Backup appliances | killexams.com Real Questions and Pass4sure dumps

    Symantec Simplifies Backup and recuperation with New V-Ray-Enabled Backup appliances

    commercial enterprise backup home equipment assist corporations modernize backup infrastructures, accelerate virtualization initiatives.

    observe: ESJ’s editors cautiously choose seller-issued press releases about new or upgraded items and services. we have edited and/or condensed this unlock to highlight key facets but make no claims as to the accuracy of the dealer's statements.

    Symantec Corp. has launched Backup Exec 3600 and NetBackup 5220 enterprise backup appliances to support groups modernize their backup infrastructures and speed up new initiatives round virtualization with enhanced reliability. Symantec backup home equipment can be deployed in as little as 30 minutes and assist businesses protect tips completely, in physical or virtual environments, and deduplicate statistics far and wide to enrich effectivity and in the reduction of fees.

    Backup Exec 3600: Visibility and content-mindful Deduplication throughout actual and digital systems

    outfitted with Symantec V-Ray expertise, Backup Exec 3600 appliance offers the same entertaining visibility into virtual environments as Backup Exec 2010 utility to allow agencies to speed recovery times and reduce storage costs. Symantec Backup Exec 3600 is the first all-in-one backup equipment with integrated customer and target facts deduplication for protecting digital and actual machines for midsized corporations with constrained IT workforce. Backup Exec 3600 will assist the upcoming free up of VMware vSphere 5 and is the handiest solution obtainable with Backup Exec on optimized hardware and application.

    Backup Exec 3600 is an easy and legitimate backup appliance designed to in the reduction of IT complexity through providing:

  • digital Server Visibility: Backup Exec embedded V-Ray know-how makes information and utility recovery an easy system. With Backup Exec, administrators have a clear catalog view of their backup sets from which the administrator can choose an entire backup set or a single object in that set and click on to restore.
  • Platform Availability: The equipment can protect key operating systems and structures and presents deep utility and database aid for faster backup and restoration.
  • cut back Integration Complexity: The Backup Exec 3600 equipment points built-in and optimized hardware it is licensed to run the latest Backup Exec 2010 software, and allows a single factor for technical help. using an advanced setting up wizard, the Backup Exec 3600 appliance may also be up and running in minutes.
  • complete insurance policy: together with superior applied sciences equivalent to source and goal deduplication, the Backup Exec appliances additionally includes Symantec essential system protection for complete virus and malware security protection.
  • NetBackup 5220: All-in-one Backup appliance Protects digital and actual methods

    Symantec NetBackup 5220 is a scalable backup appliance for commercial enterprise organizations with both client and target deduplication designed to accelerate backups for physical and virtual techniques. according to NetBackup 7.1, the equipment includes Symantec’s content material-mindful deduplication which can cut back backup extent and network utilization by using as a good deal as ninety nine %, eliminating backup window issues and enabling low-cost replication of statistics to different sites for company continuity. NetBackup additionally has plans to guide VMware vSphere 5 in the subsequent unencumber due out later this year.

    With the NetBackup 5220 equipment, companies can:

  • raise Backup Reliability: integrated and optimized hardware offers respectable efficiency and a single aspect of help to streamline issue resolution.
  • in the reduction of working expenses: dispose of time spent patching and conserving backup servers and their connected add-ons.
  • Refresh statistics core Backup: The NetBackup 5220 appliance can act as a single all-in-one backup server or can scale out for environments that require varied backup media servers. Compatibility with application types of NetBackup make it handy to integrate the appliance without disruption.
  • enrich digital laptop protection: geared up with Symantec V-Ray know-how, NetBackup appliances permit purchasers to eliminate factor equipment, increase the reliability of recuperation, and maximize storage mark downs.
  • Simplify far flung workplace coverage: cut back the hardware & preservation required to give protection to far flung workplaces with an appliance that performs backups, outlets deduplicated statistics, and replicates statistics offsite.
  • seriously change disaster recovery Readiness: The NetBackup 5220 includes tape-out capabilities, the computerized photograph replication characteristic for sooner recovery at alternate sites, and guide for Symantec OpenStorage (OST) cloud connectors (e.g., Nirvanix) to make use of cloud storage as a different tier for catastrophe healing.
  • Availability

    Symantec NetBackup 5220 sequence and Backup Exec 3600 series appliances are available now in North the united states. each home equipment will roll out in extra nations in a phased strategy over the subsequent year. present NetBackup and Backup Exec clients can repurpose latest licenses to installation the NetBackup 5220 or Backup Exec 3600, respectively.

    For additional info about the Backup Exec 3600 appliance, discuss with http://www.symantec.com/enterprise/backup-exec-3600-equipment. For extra counsel concerning the NetBackup 5220 equipment is purchasable right here.


    Symantec leaves Huawei Symantec joint venture, other information storage news | killexams.com Real Questions and Pass4sure dumps

    Hillary O’Rourke, Contributor

    Huawei applied sciences Co. Ltd. spoke of it's going to take full ownership of Huawei Symantec by using purchasing Symantec’s forty nine% stake in the joint venture for $530 million.

    Huawei Symantec is a Hong-Kong primarily based joint venture centered in 2008 by using Huawei and Symantec that provides storage, safety and programs management options. The settlement is expected to shut in the first quarter of 2012.

    NexGen picks up $10M in funding

    digital machine storage device startup NexGen Storage closed a $10 million funding round, led by way of subsequent World Capital with participation from old buyers Grotech Ventures and access undertaking companions. NexGen these days launched its flagship product, the NexGen n5 Storage device.

    Penguin selects Dot Hill storage for HPC storage options

    high-efficiency computing business (HPC) Penguin Computing has chosen Dot Hill methods Corp.’s AssuredSAN 3000 collection for its HPC storage options. Penguin stated it is going to sell the highest performing 3003 fashions, primarily with SAS host interfaces, and may present solid-state drives (SSDs) as an choice.

    F5 groups with NetApp, VMware for are living utility migration

    F5 Networks Inc. stated it has enhanced its are living virtual laptop (VM) migration capabilities for purchasers the use of NetApp unified storage and VMware virtualization options. F5 collaborated with NetApp and VMware to performance look at various VM migration across facts facilities using VMware vSphere 5 and vMotion, NetApp FlexCache and F5’s massive-IP.

    Index Engines lowers pricing for Octane for exchange

    Index Engines stated it is going to sell its Octane for change/Notes e-mail archive for $50,000 in the course of the conclusion of 2011. The Octane compliance archive contains connection to 1 electronic mail server and the capability to unencumber a hundred person mailbox bills. further mailbox bills may also be licensed. The promotional fee includes setting up, training and the primary 12 months of aid.

    NovaStor upgrades NovaBackup SMB line

    records insurance policy supplier NovaStor rolled out edition 12.5 of its NovaBackup SMB product line for workstations, servers and virtual machines. The new edition allows automatic backup of critical statistics to password-covered NAS devices for compliance with corporate security policies.

    Avere FXT aces benchmark test

    Avere systems Inc.’s FXT sequence executed a combination of 1,564,404 OPS/sec throughput and.ninety nine milliseconds response time in the SPECsfs2008 NFS benchmark look at various. The enterprise’s NAS optimization system scored these numbers the usage of a forty four-node cluster of Avere FXT 3500 home equipment the usage of the common performance assessment Corp. SPECsfs2008_nfs.v3 benchmark. all over the test configuration, 752 disks and 104 rack gadgets were used.

    Violin reminiscence adds to executive group

    Flash storage startup Violin reminiscence Inc. has named Scott Metzger vice president of corporate construction. Metzger in the past served as vice chairman of items, engineering and operations at Apigee Corp. Metzger will lead Violin’s growth into information-intensive markets such as analytics, search and true-time determination administration.

    Survey: security concerns preclude cloud storage adoption

    A survey conducted through cloud storage gateway startup Nasuni found that 81% of IT specialists talked about they are concerned in regards to the security of data kept in the cloud. Of the 451respondents, forty eight% spoke of they're worried about the degree of control they would have over records kept in the cloud and forty three% plan to save facts in the cloud over the next 12 months.


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    The $188 Billion Price Tag From U.S. Extreme Weather From 2011 To 2012 | killexams.com real questions and Pass4sure dumps

    By Daniel J. Weiss and Jackie Weidman

    The United States was subjected to many severe climate-related extreme weather over the past two years. In 2011 there were 14 extreme weather events — floods, drought, storms, and wildfires — that each caused at least $1 billion in damage. There were another 11 such disasters in 2012. Most of these extreme weather events reflect part of the unpaid bill from climate change — a tab that will only grow over time.

    CAP recently documented the human and economic toll from these devastating events in our November 2012 report “Heavy Weather: How Climate Destruction Harms Middle- and Lower- Income Americans.” Since the release of that report, the National Oceanic and Atmospheric Administration, or NOAA, has updated its list of “billion-dollar”-damage weather events for 2012, bringing the two-year total to 25 incidents.

    From 2011 to 2012 these 25 “billion-dollar damage” weather events in the United States are estimated to have caused up to $188 billion in total damage. [1] The two costliest events were the September 2012 drought — the worst drought in half a century, which baked nearly two-thirds of the continental United States — and superstorm Sandy, which battered the northeast coast in late October 2012. The four recently added disastrous weather events were severe tornadoes and thunderstorms.

    Here is an update of vital extreme weather event data after the addition of these four events:

  • 67 percent of U.S. counties and 43 states were affected by “billion-dollar damage” extreme weather events in 2011 and 2012.
  • 1,107 fatalities resulted from these 25 extreme weather events in 2011 and 2012.
  • Up to $188 billion in damage was caused by these severe weather events in 2011 and 2012.
  • $50,346.58 was the average household income in counties declared a disaster due to these weather events — 3 percent below the U.S. median household income of $51,914. [2]
  • 356 all-time high temperature records were broken in 2012.
  • 34,008 daily high temperature records were set or tied throughout 2012, compared to just 6,664 daily record lows — a ratio of 5-to-1.
  • 19 states had their warmest year ever in 2012.
  • Below are descriptions of each of the four weather events in 2012 that were not included in our previous report.

    April 12: Tornadoes

    Nearly 100 tornadoes touched down across Kansas and other midwest states over a two-day period in mid-April 2012, resulting in six deaths. Extensive damage to schools, hospitals, businesses, and homes was estimated to cost $1.8 billion. Many towns were without power for extended periods of time. Fourteen counties in Kansas were declared disaster areas because of the storms. Households in these disaster-declared counties earn, on average, an annual income of $47,027–9 percent below the U.S. median household income.

    April 28: Severe Storms

    Severe weather in Oklahoma and surrounding states caused at least $4 billion in damage and one confirmed fatality in late April 2012. Storm damage throughout the area was primarily caused by 38 confirmed tornadoes and severe hail. Oklahoma was most heavily impacted — six Oklahoma counties were declared disaster areas in the wake of the storm. Households in the counties that were disaster areas earn, on average, an annual income of $39,638 — a staggering 24 percent below the U.S. median household income.

    May 25: Severe Storms

    Twenty-seven confirmed tornadoes touched down over a broad swath of the United States, including from Oklahoma to New Hampshire. The tornadoes and outburst of severe hail, straight-line winds, and thunderstorms caused one fatality and approximately $2.5 billion in damage. Most of the damage occurred in Oklahoma and the entire state was declared a disaster area. New Hampshire and Vermont also had some disaster-declared counties. Households in these disaster-declared counties earn, on average, an annual income of $45,431–12 percent below the U.S. median household income.

    June 29: Derecho

    A derecho is a “widespread, long-lived wind storm that is associated with a band of rapidly moving showers or thunderstorms,” according to the National Oceanic and Atmospheric Administration. Such a storm ravaged eastern and northeastern states in June 2012. It caused 28 fatalities and ripped through a 700-sqaure-mile swath of the mid-Atlantic region, leaving 3.4 million homes there without power. The storm caused at least $3.8 billion in damage in 215 counties in Maryland, New Jersey, Ohio, West Virginia, Virginia, and Washington, D.C. All were declared disaster areas.

    These events, along with the seven other “billion-dollar” weather events in 2012, made it the second-most-extreme weather year on record, according to the U.S. Climate Extremes Index.

    NASA climatologist Gavin Schmidt says that when it comes to higher temperatures and extreme weather, “what matters is this decade is warmer than the last decade, and that decade was warmer than the decade before. The planet is warming. The reason is because we are pumping increasing amounts of carbon dioxide into the atmosphere.”

    The U.S. National Climate Assessment draft released in January 2013 indicates that the effects of climate change will continue to threaten the health and vitality of our communities as extreme weather becomes more frequent and/or severe. One of the report’s key findings is that U.S. coastal communities are particularly vulnerable to sea-level rise, storms, floods, and subsequent erosion. And scientists predict that precipitation events across the United States are likely to be heavier. These risks pose serious threats to our electricity grid, infrastructure, clean water, and sewage treatment system in the most affected places.

    The climate-related extreme weather events of the past several years have become the new normal. We must act now to reduce the industrial carbon pollution responsible for climate change and help communities become more resilient to the coming storms, floods, droughts, heat waves, and wildfires.

    Disaster Relief

    Disaster relief has suddenly become a partisan issue. This became overwhelmingly clear during recent debates in the Senate and the House of Representatives over the Disaster Relief Appropriations Act (H.R. 152), which provided $50.7 billion in emergency aid for superstorm Sandy victims. [3] The measure was passed by Congress and signed by President Barack Obama on January 29, 2013 — an unacceptable 91 days after the storm devastated the northeast corridor.

    Despite passing with support from all but one voting Democrat in the House and Senate, the vast majority of Republicans in each chamber opposed essential aid to hurricane victims. These conservative lawmakers attempted to deny financial assistance to those in need, even after some of them previously requested disaster funding for their own states. All 36 Republican senators who voted against the Sandy aid bill are from states that experienced at least one “billion-dollar damage” extreme weather event in the past two years. In fact, 98 percent of lawmakers in either chamber who voted against the bill — 211 of the 216 Republicans — represent states that experienced at least one “billion-dollar damage” extreme weather event in the past two years.

    The debate over congressional passage of disaster recovery assistance raises serious concerns about whether Congress can both aid disaster victims in a timely fashion and work to help communities minimize damages from future storms and other extreme weather. In order to help these communities reduce their vulnerability to extreme weather, Rep. Lois Capps (D-CA) and 37 of her colleagues urged President Obama to appoint a blue ribbon panel to develop a a “community resilience fund” dedicated solely to providing the financial and technical assistance to vulnerable communities hit by extreme weather events. Dedicated funding for predisaster mitigation will protect lives, shield middle- and lower-income households from the worst impacts of extreme weather, and save taxpayers money over time.

    For more information on this proposal, please see CAP’s December 2012 column “An Ounce of Prevention: Increasing Resiliency to Climate-Related Extreme Weather.”Methodology

    This Center for American Progress analysis compiled data from multiple sources. Extreme weather events data were from the National Oceanic and Atmospheric Administration’s National Climatic Data Center, or NCDC. Counties affected by each event were compiled from the Federal Emergency Management Agency’s Declared Disasters database.

    In order to assess income levels for the most affected counties, we used median household income (2006–2010) data and number of households (2006–2010) data from the U.S. Census Bureau’s State and County QuickFacts. The 2006–2010 values are an average over the five-year period. We compared the percent difference between the average annual median household incomes for the affected counties in each weather event to the U.S. median — $51,914. We accounted for the population of each county when calculating these values. The cost per household was calculated by taking the cost of the event divided by the total number of households for each event.

    Endnotes

    [1] The National Oceanic and Atmospheric Administration will release final 2013 disaster cost estimates in mid-2013.

    [2] U.S. median income figures are based on the 2005–2010 Census Bureau average.

    [3] This was the second installment of Sandy aid. The first installment of $9.7 billion was passed on January 1, 2013.

    Daniel J. Weiss is a Senior Fellow and Director of Climate Strategy at the Center for American Progress. Jackie Weidman is a Special Assistant at the Center.


    In Principle - 10 Things Authorised Firms Need To Know For 2019 | killexams.com real questions and Pass4sure dumps

    In Principle 10 Things Authorised Firms Need To Know For 2019 1. Brexit ............................................................................................3 2. The Extension of the Senior Managers and Certification Regime..............................................................5 3. Market Abuse ............................................................................9 4. The FCA’s Recent Enforcement Trends ......................10 5. Cybersecurity and Data Protection .............................. 12 6. EU Securities Financing Transaction Regulation .....14 7. Amendments to the European Market Infrastructure Regulation.................................................. 15 8. EU Benchmarks Regulation and LIBOR Cessation .. 17 9. EU Action Plan on Sustainability and Asset Management ...........................................................................19 10. Individuals on the Enforcement Agenda: 2018 Key Cases and Enforcement Round-Up .......... 20 1In Principle Introduction Executive Summary In the 2018 edition of this publication, we ended the introduction with the line, “We can only hope that we will enter 2019 with greater certainty than 2018 as to how the regulatory landscape will look.” Unfortunately, certainty still remains in rather short supply. With Brexit now (at least in theory) a matter of weeks away, it remains unclear what will happen: the government’s original proposed Withdrawal Agreement has been decisively rejected, but Parliament has indicated that it would support that agreement if the “Irish Backstop” provisions are renegotiated. The Prime Minister has therefore been mandated to return to negotiations on this point, in the face of statements by European Union leaders that there is no prospect of such negotiations going ahead. At the same time, Parliament has signalled that it “rejects” a no-deal Brexit, but not agreed to a proposal which would have made this rejection binding. Further Parliamentary proceedings are now planned for the middle of February. Whether there is a hard, soft or no Brexit, there remain a number of issues beyond Brexit that authorised firms will have to consider in the year ahead. Including Brexit, here are 10 things that authorised firms need to know for 2019. 1. Brexit In the absence of a decision of what will happen come the 29 March 2019 (or indeed, come some future date if “exit day” is postponed”), firms have been left in a state of uncertainty. Whilst this makes planning for what will happen even more difficult, it is possible to plot out how certain more likely scenarios would play out. We consider what asset managers would face if the original Withdrawal Agreement is largely accepted (notwithstanding a change to the Irish backstop), what would happen in the event of the UK leaving the EU without an agreement, and what effect the UK’s remaining in a customs union with the EU would have on asset managers. We also consider what preparations the FCA has made for a no-deal scenario, in particular surrounding the “temporary permissions regime”. 2. The Extension of the Senior Managers and Certification Regime The Senior Managers and Certification Regime (SMCR), which is currently in force for all banks, building societies, credit unions, and dual regulated investment and insurance firms, will be extended to cover all FCA solo-authorised firms by 9 December 2019. While the Financial Conduct Authority (FCA) will continue to approve people who take on Senior Manager roles, the obligation to certify employees below Senior Manager level as fit and proper will devolve on the firms themselves. Firms will also be required to train staff on the Conduct Rules and implement new or update existing systems and controls, including a variety of policies and procedures. Although the implementation is almost a year away, firms would be well advised to have the new requirements at the forefront of their minds to ensure a smooth transition. 3. Market Abuse Market abuse continues to be an area of very significant interest for the FCA and growing interest across the rest of the EU. With the FCA’s insight that compliance with the Market Abuse Regulation (MAR) is “state of mind” rather than a matter of following procedures, firms will have to be particularly vigilant to ensure that they remain compliant. 4. The FCA’s Recent Enforcement Trends Until the end of 2018, the FCA had a comparatively quiet year, at least in terms of the number of investigations publicly brought to a conclusion and the consequent number of fines issued. The number of penalties was down, and the length of investigations was increasing substantially. We have looked at the number and distribution of investigations and decision notices to put together a picture of the FCA’s current enforcement trends. 5. Cybersecurity and Data Protection 2018 was an important year for data protection law with the entry into force of the General Data Protection Regulation (GDPR) in May. We expect to see a trickle of enforcement cases in 2019 under the new regime as the courts and tribunals interpret the new law’s provisions. Especially with the greatly increased size of the penalties available for breaches, firms should continue to carefully monitor compliance with data protection obligations. Further regulatory guidance on core provisions of the GDPR is expected during 2019. 2 © 2019 Akin Gump Strauss Hauer & Feld 6. EU Securities Financing Transaction Regulation The Securities Financing Transaction Regulation (SFTR) is one of the major pieces of post-financial crisis legislative reforms and introduces a reporting and transparency regime applicable to firms that parallels the over-the-counter (OTC) derivatives reporting requirements under the European Market Infrastructure Regulation (EMIR). All counterparties are required to report details of any securities financing transactions that they have concluded, modified or terminated to a registered or recognised trade repository. Whilst the reporting obligation under the SFTR is not expected to take full effect until 2020 at the soonest, for firms that regularly deal with repos and buy-sellback transactions, this piece of legislation should be firmly on the radar, given the requirement to build operational infrastructure to support the new reporting requirement. 7. Amendments to the European Market Infrastructure Regulation EMIR is subject to a significant reform proposal, the EMIR “refit,” which includes a number of changes that are expected to become effective in 2019. These are, in some way or other, likely to impact all firms currently subject to EMIR. EMIR is proposed to be extended in scope by clarifying that all alternative investment funds (AIF) should be considered to be financial counterparties (FC), which has caused some confusion as to the proper classification of non- EU AIFs with non-EU managers. The refit seeks to alleviate some of the regulatory burden for smaller counterparties by introducing an FC+ and FC- concept to exclude the below-threshold FCs from the scope of the clearing obligation and by making NFC- reporting the responsibility of counterparty FCs. A number of the amendments that are likely to take effect in 2019 therefore seek to address issues raised by industry since before EMIR was published in 2012. Clearing and margin requirements established under the current EMIR regime will also continue to be phased in during 2019, thereby completing the phase-in requirements for all counterparty categories subject to clearing. 8. EU Benchmarks Regulation and LIBOR Cessation We are now in the “transitional period” of the Benchmarks Regulation (BMR), whereby EU-based existing “users” of benchmarks may continue to use non-EU-administered benchmarks in financial instruments until 1 January 2020, notwithstanding that such benchmarks are not listed on the European Securities and Market Authority’s (ESMA)s register of “approved benchmarks.” Post-1 January 2020 treatment of non-EU benchmarks is unclear, given the lack of available “routes” into the EU for non-EU-administered benchmarks under the BMR: No jurisdiction has, for example, been declared “equivalent” to the EU such that benchmarks administered in that jurisdiction may continue to be used. An additional wrinkle to 2019 compliance is that LIBOR is expected to cease to exist from the end of 2021. The FCA has stated that, from that time, it no longer expects panel banks to contribute to LIBOR; thus, it is expected to disappear. The impact of this is that, to the extent that users of benchmarks currently reference LIBOR in financial instruments and wish to continue to do so, the fact of LIBOR’s possible cessation will need to be addressed in “robust written plans,” which users of benchmarks are expected to prepare and, on request, make available to the FCA. As explained in the following, the FCA has also indicated that benchmark supervision is an important supervisory priority for this year. 9. EU Action Plan on Sustainability and Asset Management In November 2018, the EU Commission issued a consultation on whether, and how, asset managers should be required to take principles of sustainability into account when making decisions. This proposal signals a key shift in using financial regulation to address environmental and social concerns, whether or not it is the case in practice that such matters are currently addressed by asset managers. While there is currently no clear indication of the shape of the rules affecting managers, the industry will be keeping a keen eye on these initiatives. 10. Individuals on the Enforcement Agenda: 2018 Key Cases and Enforcement Round-Up In keeping with investigations that take longer, it is perhaps no surprise that the amount of case law that was generated in 2018 is somewhat smaller than in previous years. This notwithstanding, both the Upper Tribunal (which hears references from the FCA’s Regulatory Decisions Committee (RDC)) and the courts have provided several relevant judgments. With the wider rollout of the SMCR, it seems likely that the regulator will continue, and perhaps sharpen, its focus on individuals this year. 3In Principle 1. Brexit As anyone following the unfolding of the political process of Britain withdrawing from the EU can attest to, the only thing that is certain is the uncertainty. The inconclusive process has meant that a number of options continue to be discussed and, while within the asset management industry a broadly shared view is that a hard Brexit is unlikely, a number of the options leave the treatment of financial services at best inconclusive. Asset managers have good reason to be vigilant to the political tides: even in the smoothest transition to a soft Brexit, responses will need to be prepared on a relatively quick timetable. The key concern for asset managers will be the continuing access to EU markets. This means the ability to continue to provide services to existing and future fund and segregated account clients as well as EU investment managers, and the ability to market financial products and services to prospective clients and investors. The specific mechanism that would allow for continuing and unrestricted access to the EU markets is still unclear: While some EU laws allow for an equivalency assessment, this is not the case in all relevant legislation, and it is likely that in some cases the price of market access will be a substantially higher regulatory burden that UK managers would have to bear. In the short term the patchwork of access provisions for third country entities under the existing laws is likely to result in unsatisfactory arrangements and a higher level of regulatory risk across the industry. The now-partially rejected withdrawal agreement contemplates a transition period from 29 March 2019 until (at least) the end of 2020. While the final form of any agreement is still subject to active negotiations, a substantial transition period is now likely, not least because Parliament has expressed its disapproval to a no-deal Brexit which would serve to create significant instability in the markets and to have an adverse impact on consumer outcomes not only in the UK but across the EU. During such a transition period, for all relevant intents and purposes, EU law would continue to apply in the UK, and asset managers would not be required to make substantial changes in response to “exit day” in the short term. While some jurisdictions and regulators have ensured that bilateral arrangements to ensure ongoing mutual access and regulatory cooperation have been concluded in advance of the 29 March withdrawal date, such bilateral arrangements are unlikely to be comprehensive, and are subject to revision depending on the ultimate outcome of negotiations with the EU and on ESMA’s views on the appropriate regulatory approach and solutions. No Deal What happens if the UK “crashes out” with no deal? The EU and the UK would still be able to investigate and make equivalency determinations, though as it would likely take months, if not years, for these determinations to be made, in the short term there could be substantial difficulties for UK and EU entities to ensure that they were compliant. Without a transition agreement, therefore, equivalence determinations could only provide a medium-term solution for those in the financial services sector and, given the limitations to relying on equivalence, a somewhat limited one at that. Customs Union The Labour Party is currently the largest opposition party in the UK Parliament, and whilst there remain uncertain contours over its Brexit policy, it has declared that it would like the UK to be part of a “permanent custom union”. Whilst a customs union would go some way to permitting the free movement of goods, critically for asset managers, a customs union without an explicit extension to include services would preclude free movement of services of the kind that asset managers currently rely upon. In particular, under 4 © 2019 Akin Gump Strauss Hauer & Feld MiFID II and the AIFMD, and absent any specific further legislative solution, a customs union will likely preclude firms being able to use passporting rights as they would now. While both above directives contain mechanisms for a third country passport, the regulatory framework for this does not currently exist, and the attendant conditions for the same would be onerous, and subject to material uncertainty. By contrast, membership of the single market would likely bring with it some form of passporting rights – if not in exactly the same way as they currently benefit the industry. Temporary Permissions Regime In preparation for a no-deal Brexit, the Treasury and the FCA have shown willing. Regulations have been proposed to implement a “temporary permissions regime”, under which non-UK EEA firms currently operating in the UK would continue to be able to act as if they were authorised for a period of time. Ultimately, firms relying on a temporary permission will have to make a transition to full authorisation. The FCA has actively encouraged incoming EEA firms currently using passports to prepare applications for a temporary permission to avoid overcrowding at the last moment before the curtain falls. Increasingly, a shared commonsense that a no-deal Brexit should be avoided at all, or nearly all, costs has seeped into the political discourse, and valiant efforts have been made by manufacturing and services industry lobbies to steer clear of a cliff-edge departure on 29 March. As the past years have shown, however, one does well to expect the unexpected, and the haphazard contingency plans that have been drawn up to this end could be put to test yet. The contingency plans of individual firms who, without any clear guidance are left eagerly poised for action, meanwhile, often have a significant component of hoping for the best. 5In Principle 2. The Extension of the Senior Managers and Certification Regime On 4 July 2018, the FCA published near-final rules setting out how it intends to implement the extension of the SMCR to all FCA-authorised, nonbanking firms.1 The FCA has proposed for this new regime to become effective on 9 December 2019, albeit with a transitional period to give firms time to implement it fully. As had been previously proposed by the FCA, the SMCR will be implemented in tiers. Most firms will fall within the “Core Regime”; however, a small number of firms categorised as “enhanced regime” firms will be subject to additional requirements, and there will be fewer rules for “limited scope” firms. The proposed new rules require firms to obtain prior FCA approval for “Senior Managers.” An individual who is designated a Senior Manager may be personally liable for breaches of FCA requirements that take place within his or her area of responsibility. In addition, firms will be required to certify the fitness and propriety of individuals who are not Senior Managers, but who may cause significant harm to the firm or to its customers due to the nature of their role. A new set of Conduct Rules will apply to virtually all individuals within a firm. The first enforcement case under the SMCR, regarding the CEO of Barclays, was decided in 2018: We discuss it in more detail under “Recent Case Law and Key Enforcement Cases” below. To Whom Does This Apply? The SMCR will apply to all UK nonbank firms authorised by the FCA. This will include UK group 1 https://www.fca.org.uk/publication/policy/ps18-14.pdf. entities of non-UK firms, including US and Asian investment managers with a UK sub-advisor or a UK execution-only presence. The rules will also affect some non-UK staff of UK firms, including directors or material risk takers based outside the UK. The Core Regime The Core Regime consists of three main elements: the Senior Managers Regime, the Certification Regime and the Conduct Rules. (i) Senior Managers Regime An FCA-authorised firm will need to obtain prior approval by the FCA for the most senior staff members whose roles include the performance of “Senior Management Functions.” As has been the case under the current system, the Senior Managers will need to demonstrate to the FCA that they are fit and proper to undertake their roles. As part of this, firms will need to obtain criminal records checks for all proposed Senior Managers. Approval to hold a Senior Management Function may be granted outright by the FCA for a limited time period or subject to conditions. The Senior Management Functions include the Chairman function (SMF9), the Chief Executive function (SMF1), the Executive Director function (SMF3), the Compliance Oversight function (SMF16) and the Money Laundering Reporting Officer (SMF17). Anyone who performs these functions in a firm covered by the SMCR, whether present in the UK or not, will need to seek this authorisation. Under the current Approved Person/Controlled Function regime, a corporate entity was permitted to hold a Controlled Function. Under the Senior Managers Regime, however, only individuals can hold a Senior Management Function, and it cannot be held by a corporate entity. In firms where a corporate entity currently performs a Controlled Function, it will be necessary to consider which individual will hold the Senior Management Function. Whilst the FCA has not made explicit how this will work, firms should consider who is directing the corporate entity that is performing the controlled function. It is likely that a director of that corporate entity will be the most suitable person to hold that Senior Manager position. 6 © 2019 Akin Gump Strauss Hauer & Feld Statement of Responsibilities Firms must prepare a Statement of Responsibilities (SoR) with respect to each Senior Manager. Firms will need to provide the SoR to the FCA when a Senior Manager applies to be approved, and then whenever there is a significant change to his or her responsibilities. If a Senior Manager holds more than one Senior Management Function within one firm, he or she will be required to have only a single SoR describing all of his or her responsibilities. However, if a Senior Manager holds Senior Management Functions in two or more firms, he or she will need a separate document for each firm. The FCA has published guidance on the contents of an SoR: An SoR must be a self-contained document, which does not incorporate any other document by reference. It must show clearly how the responsibilities performed by a Senior Manager fit in with the firm’s overall governance and management arrangements, and this must be consistent with a firm’s management responsibilities map. Ultimately, the firm’s set of SoRs should demonstrate, when put together, that there are no gaps in the allocation of responsibilities among the Senior Managers. Duty of Responsibility Each Senior Manager will owe a duty of responsibility. This means that, if a firm is in breach of its obligations under the FCA’s rules or principles, the Senior Manager responsible for the area in which the breach took place could be held personally accountable. In order to hold someone individually accountable, the FCA would have to show that the Senior Manager did not take the steps that a person in his or her position could reasonably be expected to take to avoid the breach occurring. This duty is included to improve accountability, not just of the junior decision-makers, but to the highest echelons of the business. Prescribed Responsibilities The FCA has proposed a number of “Prescribed Responsibilities.” Firms will be obliged to ensure that, at all times, a Senior Manager has responsibility for each of the Prescribed Responsibilities. Some examples of Prescribed Responsibilities include the performance by the firm of its obligations under the Senior Managers Regime (including its implementation and oversight), the performance by the firm of its obligations under the Certification Regime (discussed below), the performance by the firm of its obligations in respect of notifications and training in relation to the Conduct Rules, and the responsibility for the firm’s policies and procedures for countering the risk that the firm might be used to further financial crime. (ii) Certification Regime The Certification Regime will apply to employees who are not Senior Managers, but whose role means that it is possible for them to have a significant impact on customers, the firm or market integrity. These roles are called “Certification Functions.” For each employee undertaking a Certification Function, the firm must assess whether they are fit and proper to do their job, and the firm must provide each such employee with a certificate to that effect. This certificate must circumscribe the areas of the business with which that employee will be involved. For each employee, certification must be undertaken at least once a year. In deciding whether someone is fit and proper under the Certification Regime, the firm will have to take into account several different factors, including whether that person has obtained relevant qualifications, whether he or she has undertaken certain training programmes, whether he or she possesses the requisite level of competence and whether he or she has the appropriate personal characteristics for the role. The Certification Functions include what was CF29 under the Approved Persons regime, which was (unfortunately) called the “significant management function.” Care should be taken that no confusion arises: To be clear, holders of the significant management function under the Approved Persons regime in all likelihood will be subject to the Certification Regime and not the Senior Managers Regime. The restriction of the Certification Regime to “employees” is somewhat deceptive: Not only does it encompass “employees” in the ordinary sense of the word, but it also includes anyone who provides, or is under an obligation to provide, services to the firm and who is subject to the supervision, direction or control by the firm as to the manner in which those services are provided. Third-party contractors and other agents may fall within this definition. The Certification Regime applies to all UK-based employees, any non-UK-based employees who have contact with UK clients and any material risk takers, regardless of where they are located. Whilst perhaps uncommon, it is possible that 7In Principle someone performing a Senior Management Function will also be performing a Certification Function. In this case, it is necessary for both procedures to be followed, that is, the FCA will have to authorise that person to hold a Senior Management Function, and the firm will have to certify them as fit and proper to perform their role. Directory As the SMCR replaces the Approved Persons regime, the number of people approved individually by the FCA will decrease dramatically, since the vast majority of employees will not be Senior Managers, but will fall within the Certification Regime. Consequently, the Financial Services Register currently maintained by the FCA will become much less useful, since only those people approved by the FCA (Senior Managers) would likely continue to appear on it. In light of this, the FCA published a consultation paper in July 2018 proposing the introduction of a new Directory. This Directory would contain information not only on Senior Managers, but also on all people who have been certified by their organisation. Populating this Directory will require the co-operation of authorised firms, since they will be the ones with the information on their certifications. The provision of this information to the FCA for the Directory may well be a nontrivial matter for firms. The FCA’s consultation closed on 5 October 2018, and we expect the FCA to issue a policy statement in Q1 of this year. At that point, we will hopefully know much more about what is proposed and what burdens might be placed on individual firms. (iii) Conduct Rules The Conduct Rules will be enforceable by the FCA against individuals. The individual Conduct Rules will apply to all staff (barring certain ancillary staff, such as receptionists, cleaners and catering staff). The FCA will apply the Conduct Rules to a firm’s regulated and unregulated financial services activities. It should be noted that this is a narrower scope than how the Conduct Rules apply within the SMCR as applied to banks, where the Conduct Rules apply across the board to all activities. The Conduct Rules are divided into two tiers, the first tier being applicable to all staff, and the second tier being applicable to Senior Managers only. The Conduct Rules are high-level guidance and largely replicate the principles currently applicable to Approved Persons. They are informed by the Principles for Businesses, which remain unchanged. Firms will be obliged to train all staff on how the Conduct Rules apply to their activities within the firm. The Enhanced Regime The largest and most complex firms will be subject to certain additional requirements under the enhanced regime. Enhanced regime firms will include “significant investment (IFPRU) firms” and firms with assets under management of £50 billion or more. Enhanced firms will need to comply with the Core Regime requirements and certain additional requirements. Such requirements include additional Senior Management Functions and Prescribed Responsibilities, as well as an overall responsibility for every business activity and management function of the firm. In addition, an enhanced regime firm will have to compile a responsibilities map that sets out the firm’s management and governance arrangements. Regulatory References For incoming employees who are either going to be performing Senior Management Functions or who will be covered by the Certification Regime, a firm will have to request a reference from their previous employers covering the preceding six years. This reference will be known as a “Regulatory Reference.” This reference must include information of any disciplinary action following breaches of the Conduct Rules, as well as any information relevant to whether the employee was fit and proper. This information will need to be shared in a standard template, and, for each employee, the Regulatory Reference must be updated appropriately if and when any new relevant information comes to light. Since Regulatory References will be mandatory to provide, it is important that firms do not attempt to enter into agreements that conflict with their obligation to provide such references (for example, NDAs). Non-Executive Directors Non-Executive Directors (NED) will need to be approved by the FCA if they are to perform the SMF9 Chair Function or the SMF14 Senior Independent Director Function. NEDs who do not need to be approved may still be subject to the Conduct Rules 8 © 2019 Akin Gump Strauss Hauer & Feld and the Certification Regime. In addition to the generally applicable Conduct Rules, NEDs will also need to comply with Rule SC4 (the requirement to disclose appropriately any information of which the regulator would reasonably expect notice), which otherwise applies to only those holding Senior Management Functions. Next Steps The FCA has announced various conversion mechanisms that should ease the transition from the current Approved Persons regime to the SMCR. For example, Approved Persons at “core” firms will have their Controlled Function approval mapped to the relevant Senior Management Function where possible (e.g., a director holding CF1 will become (if appropriate) an executive director holding SMF3). Other Approved Persons holding just CF30 (Customer), for example, may not need to hold a Senior Management Function at all and will simply be covered by the Certification Regime. Whilst this will ease the transition somewhat, this automatic mapping will not be possible for all Approved Persons (e.g., an Approved Person holding CF4 (Partner) may have to hold SMF3 (Executive Director), as well as SMF27 (Partner). It will be necessary, therefore, for some care to be taken to ensure that the conversions to the new regime are all correctly completed. The FCA has also announced transition provisions with respect to the Certification Regime. For example, firms will have one year from the commencement date of 9 December 2019 to provide a certificate to employees as required. However, firms will have to have identified who will need to be certified under the Certification Regime on day 1. Whilst the commencement date is still some time away, firms would be well advised to have started to think about what they will need to do in good time so as to ensure a seamless transition when this is required. 9In Principle 3. Market Abuse FCA “Complying with [MAR] is more than adhering to a set of prescriptive requirements”; it is a “state of mind,” so says the FCA.2 In reiterating its understanding of MAR, the FCA once again has provided firms with a high bar to meet in the detection and avoidance of market abuse, but at the same time providing comparatively little direction on how to comply. Market abuse remains a high priority for the FCA. In 2017/2018, the FCA received 4,829 insider dealing reports and 666 market manipulation reports, and consequently opened 87 abuse cases. The regulator’s continued interest makes it all the more important to glean as much as possible from the FCA’s publications to try to discern how best to satisfy the requirements placed on firms as the “first line of defence” against market abuse.3 A few themes from the FCA’s recent publications are worth highlighting. First, in relation to systems surrounding internal alerts and warnings of potential market abuse, the FCA has warned against relying on “out of the box” or “industry standard” software. Whilst the FCA has appreciated that generic software can be helpful to a firm, the FCA thinks that this is too blunt an instrument for a firm to rely on. There is a danger that people who are intent on market abuse will not be caught if they deviate at all from the most common forms of market abuse that such software is designed to detect. The remedy, from the FCA’s point of view, is that each firm must assess what warnings and alerts are appropriate 2 FCA, Market Watch, December 2018, Issue 58, https://www.fca. org.uk/publication/newsletters/market-watch-58.pdf. 3 FCA, Market Watch, December 2018, Issue 58, https://www.fca. org.uk/publication/newsletters/market-watch-58.pdf. for the business that firm conducts, taking into account the scale, size and nature of the firm’s activity. Whilst this may be informed by “industry standards,” the firm must exercise its own independent judgment in determining what will be sufficient. Second, the FCA has reported that it thinks that there is a level of underreporting of suspicious trades and orders (Suspicious Trades and Order Reporting, or STOR). In particular, the FCA thinks that firms are sometimes taking too narrow a view of the market, and thereby missing suspicious behaviour; the example used by the FCA is in relation to fixed income products, where firms may analyse the trades of one particular product and not consider trades in other related products that, when analysed together, would require a STOR submission.4 Third, the FCA has scrutinised firms’ use of insider lists. Under MAR, firms are required to maintain insider lists, and there are templates that must be used setting out what information should be contained within an insider list. When requested, these lists must be provided to the FCA. The FCA notes that it has “observed varying quality in the insider lists we have received to date.”5 A particular concern that the FCA has is the overuse of permanent insider lists as a way of trying to avoid keeping temporary insider lists up to date. The advice to firms given by the FCA is to anticipate likely sources of insider information and set up systems that can ensure that insider lists for individual deals or events are naturally created whenever a market participant gains inside information. Removing a dependence on permanent insider lists is, it appears, designed to encourage this behaviour. The European Securities and Markets Authority 2018 saw ESMA issue its first annual report under MAR, providing a summary of actions under MAR across the EU in 2017.6 In summary, the results are as follows: 4 FCA, Market Watch, September 2018, Issue 56, https://www. fca.org.uk/publication/newsletters/market-watch-56.pdf 5 FCA, Market Watch, December 2018, Issue 58, https://www.fca. org.uk/publication/newsletters/market-watch-58.pdf. 6 https://www.esma.europa.eu/sites/default/files/library/esma70- 145-1081_mar_article_33_report_sanctions.pdf. 10 © 2019 Akin Gump Strauss Hauer & Feld The Statistics The FCA’s enforcement figures do not make for comfortable reading for financial institutions. Year on year, the number of investigations opened by the FCA is increasing. This zeal for opening investigations, however, is not matched by an equivalent growth in the number of cases reaching a conclusion. In real terms, this means not only that, statistically speaking, you are more likely to be the subject of an investigation, but that this investigation is likely to take a significant time to conclude. In the minutes of the meeting of the FCA board in September 2018, it is noted that the FCA planned to “clea[r] all legacy cases by Q1 of 2019.”7 Our review of the notices that the FCA has produced since then would suggest that this was perhaps optimistic. 7 https://www.fca.org.uk/publication/minutes/fca-board-26-and- 27-september-2018.pdf, point 11.2. Accuracy of the Data We note that the accuracy of the FCA’s reports on the number of open investigations has been placed under some scrutiny recently. At the end of last year, the results from several freedom-of-information requests made to the FCA within a matter of weeks of each other were published.8 Each of these requests ostensibly asked for the same information, how many open investigations there are, yet the FCA gave three different, incompatible answers. Whilst we have no reason to doubt the figures provided by the FCA, which we review here, it is evident that the presentation of the data is not intended to be neutral and that further contextualisation is required. Number of Cases The latest full figures on the number of cases that we have are for the 2017/2018 year.9 On 1 April 2017, there were 410 investigations open. In the following 12 months, 208 cases closed, and another 302 investigations started. Ultimately, by 31 March 2018, there were 94 more open investigations than the previous year. The most striking increase in this period relates 8 See L. Rogerson and R. Wolcott, “UK FCA published inconsistent, double counted enforcement statistics in freedom of information responses” (Thomson Reuters, 14 December 2018). 9 Unless otherwise stated, figures in this section are taken from: https://www.fca.org.uk/publication/corporate/annual-report-2017-18- enforcement-performance.pdf (last accessed 14 December 2018). 4. The FCA’s Recent Enforcement Trends • The only criminal proceedings brought were by the German authorities. Criminal fines were imposed on seven individuals for market manipulation, although the total amount of the fines was very limited at only EUR 12,450. • Two Article 14 MAR proceedings were brought – one each by the Slovenian and Lithuanian authorities – in relation to the infringement of the insider dealing requirements. These did not result in financial penalties. • Thirty-five pecuniary sanctions were issued across the EU relating to the infringement of Article 15 MAR on market manipulation. With the exception of a EUR 40,000 sanction imposed by the French authorities, these were all comparatively small fines. • For “other infringements” of MAR, 107 pecuniary sanctions and 111 nonmonetary sanctions were imposed. Notably, this included a penalty of £70,000 issued by the FCA against Tejoori Limited for failing to inform the market of inside information as required by Article 17(1) MAR. 11In Principle to investigations into culture and governance. The number of cases in this category increased by more than 300%, from 15 to 61 cases. Financial crime cases also showed a substantial increase of more than 50%, from 55 to 86 open investigations, and market abuse investigations were up by nearly 30%, from 22 to 28 open cases. The only type of investigation showing a substantial decrease in this period was wholesale conduct investigations, which declined by just more than 30% from 38 to 26 cases. Whilst these statistics must be understood within the context of a comparatively small data set, these figures do tally with the FCA’s stated priorities, particularly with the ever-increasing focus on individual accountability and acting against criminal conduct threatening the integrity of the market. Case Length The average length of civil and regulatory cases brought by the FCA, including cases that settle or where the FCA decides to take no further action, has increased by about a month and a half, from 17.6 to 19.1 months. This figure, on its own, however, is somewhat misleading: This modest increase in the overall average covers some more concerning changes in particular categories. For example, in a case that eventually settles, the length of time from commencement of the investigation up to settlement has increased by nine months to 32.3 months. Of even greater concern, the average length of a concluded case that was referred to the RDC has nearly doubled since the previous year to 59.4 months (almost five years). Since this is an average, it is quite possible that some cases have taken substantially longer than this. In contrast to these figures, however, the average duration of a concluded case that is eventually referred to the Upper Tribunal has decreased by approximately nine months to 52.4 months. Final Notices and Financial Penalties In 2017/2018, the FCA issued 269 final notices, with penalties imposed of almost £70 million. By contrast, in the first six months of 2018/2019, the FCA issued only 77 final notices, and penalties of only just under £2.4 million. While the FCA was more active in the second half of last year – notably, in October, it fined Tesco Personal Finance plc £16.4 million, and, in December, it fined Santander UK plc £32.8 million – the £60.4 million total fines for 2018 remains the second lowest since the regulator’s inception by both volume and number of fines. Criminal Cases The FCA noted in its 2017/2018 Enforcement Annual Report that “[c]riminal cases can take significantly longer to resolve than regulatory cases” and reports that the average length of all criminal cases is 58.2 months10. Whilst substantially longer than the “average” civil or regulatory case – that is, including investigations that are not pursued or that settle – we note that this is eminently comparable to the average duration of cases involving an RDC or Upper Tribunal reference. One recent criminal case is of particular note. The FCA brought a prosecution against a former UBS compliance officer and a UBS trader over allegations of insider dealing.11 The two defendants had their first hearing before the City of London Magistrates in June 2017. Only in October 2018 did the eight-week trial start. Then, in December 2018, after five days of deliberations, a jury was unable to reach a verdict and was discharged. This was despite the judge permitting the jury to come to only a majority verdict. The FCA has notified the court that it intends to seek a retrial against these defendants.12 10 https://www.fca.org.uk/publication/corporate/annual-report- 2017-18-enforcement-performance.pdf, page 9. 11 https://www.fca.org.uk/news/press-releases/two-charged- insider-dealing. 12 https://www.ft.com/content/9b00c710-fe17-11e8-ac00- 57a2a826423e. 12 © 2019 Akin Gump Strauss Hauer & Feld Financial regulation is now inexorably intertwined with data protection rules. It is also striking that these rules often have very broad application beyond the EU. As explained below, recent enforcement cases indicate that the nexus does not have to be extremely obvious or clearly direct. (i) The GDPR The data protection framework set out in the GDPR continues to become further entrenched in the financial regulatory framework relevant to financial market participants, including asset managers. This is reflected, for example, in the FCA’s focus on cybersecurity in its 2018/2019 Business Plan, which sets out the FCA’s objectives for the period,13 joint FCA and UK Information Commissioner’s Office (ICO) statements,14 and co-ordinated investigations and enforcement actions of the FCA acting with the ICO.15 It is worth looking back to two enforcement actions of 2018 to be reminded of the direction in which GDPR enforcement is going, which accords with the expectations of many of aggressive enforcement and (a concern for non-EU-based asset managers) the relatively narrow connection to the EU that is being considered sufficient by the ICO to bring an enforcement action. 13 https://www.fca.org.uk/publication/business-plans/business- plan-2018-19.pdf. 14 https://www.fca.org.uk/news/statements/fca-and-ico-publish- joint-update-gdpr. 15 https://ico.org.uk/about-the-ico/news-and-events/news-and- blogs/2018/09/credit-reference-agency-equifax-fined-for-security- breach/. (ii) AggregateIQ Data Services Ltd – Enforcement over an Entity with no Presence in the EU In October 2018, AggregateIQ Data Services Ltd (AIQ) was the first target of a formal enforcement notice by the ICO under the GDPR.16 AIQ, which is a Canadian business, was required to “cease processing any personal data of UK or EU citizens obtained from UK political organisations or otherwise.” AIQ breached the GDPR because it “processed personal data in a way that data subjects were not aware of, for purposes which they would not have expected, and without a lawful basis for processing”. The case is significant for non-EU businesses in particular because the enforcement notice was served on an entity established outside of the UK that had no presence at all in the EU. The ICO took the view that AIQ’s processing of personal data related to the monitoring of data subjects’ behaviour in the EU and that it was therefore within the scope of its enforcement powers. (iii) Equifax Ltd. – Non-EU Cyber-Attack Did Not Preclude Application of EU Rules; and Significant Fine In September 2018, the ICO issued Equifax Ltd, a UK-based credit reference agency, with a £500,000 fine for failing to protect the personal information of approximately 15 million UK citizens whose data was breached during a cyber-attack against Equifax that took place in 2017.17 The fine was the maximum permitted to be levied under the pre-GDPR legislative framework. Since the failings occurred before the date of entry into force of the GDPR (25 May 2018), the investigation was carried out under the previous UK regime. The case is significant for non- EU businesses in particular because the location of the cyber-attack in the US did not preclude strict application of the UK’s data protection rules. Although the information systems of Equifax in the US were compromised, Equifax in the UK was identified as responsible for the data of its UK customers: The ICO took the view that the UK arm of Equifax failed to take appropriate steps to ensure that its US parent, which was processing the data on its behalf, was protecting the information. Although too soon to tell, compliance challenges may arise post-Brexit if it is the case that, 16 https://ico.org.uk/media/action-weve-taken/enforcement- notices/2260123/aggregate-iq-en-20181024.pdf. 17 https://ico.org.uk/media/action-weve-taken/mpns/2259808/ equifax-ltd-mpn-20180919.pdf. 5. Cybersecurity and Data Protection 13In Principle over time, the substance of key requirements under the GDPR diverge from the form of the GDPR that is adopted by the UK as a legally separate regime on “exit day”: There may eventually, in effect, be two fairly distinct versions of the GDPR. Regulatory guidance is expected to be forthcoming in 2019 concerning, among other aspects of the GDPR, its high-level principles, including lawfulness, fairness, transparency of data processing and storage requirements. The EU e-Privacy Regulation The e-Privacy Regulation (the EPR) impacting, among other matters, “direct marketing” in the EU, is in the process of being finalised, and it is expected to come into effect in late 2019 or early 2020 once the legislative process has concluded. Although the rules replace and tighten existing “direct marketing” requirements under the existing e-Privacy Directive from 2002,18 direct marketing will, as explained below, now be subject to EU-wide rules that are uniform across the EU rather than, as currently, implemented differently by member state. Further, the stricter concept of “consent” from the GDPR will now be applied. Consent must therefore be freely given, obvious and evidenced by a positive action of the recipient: A pre-checked consent box, for example, is unlikely to suffice. The EPR presents the possibility of significant fines along the lines of the GDPR. The territorial scope of the EPR is wide-reaching: In addition to compliance being required by legal and natural persons within the EU, legal and natural persons located outside of the EU will also be required to comply with the EPR where they provide electronic services to users located in the EU. Whilst enforcement against non-EU persons may be difficult, for anyone with any connection to the EU, these rules will be important to follow as well. Direct marketing is defined broadly as “any form of advertising, whether written or oral, sent to one or more identified or identifiable end-users of electronic communications services, including the placing of voice to voice calls, the use of automated calling and communication systems with or without human interaction, electronic message, etc.” Those engaging in direct marketing will need to display their phone 18 Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector. number or, alternatively, use a special identifiable pre- fixed number that makes clear that the call relates to marketing. One of the most significant rules that is expected to be contained in the EPR and so will be in force across the EU provides for a “soft opt-in” in particular circumstances. The soft opt-in provides that direct marketing will be permitted to be directed towards a person who has already received goods or services from the business, provided that (a) the direct marketing relates to similar goods or services, and (b) that, in each communication, the subscriber is given the opportunity to “opt-out.” This rule is similar to the one already in force in the UK under the Privacy and Electronic Communications (EC Directive) Regulation 2003 (PECR);19 however, it will be necessary to wait and see whether the concept is given the same meaning by the EU courts as it has been understood domestically. Cybersecurity In October 2018, the FCA fined Tesco Personal Finance plc £16.4 million for its systems and controls- related failings following a cyber-attack that the FCA considered “largely avoidable”.20 The FCA said in its final notice that Tesco Personal Finance plc failed to take appropriate action to prevent the foreseeable risk of fraud. In doing so, it breached Principle 2 of the FCA’s Principles for Businesses to conduct their business with due care, skill and diligence. 19 The Privacy and Electronic Communications (EC Directive) Regulations 2003 SI 2003 No.2426. 20 We discuss this case further in the “Recent Case Law and Key Enforcement Cases” section below. 14 © 2019 Akin Gump Strauss Hauer & Feld EU Securities Financing Transaction Regulation21 2019 will see the final legislative steps being taken to finalise core provisions of the EU SFTR relating to reporting of securities financing transactions (SFT) – essentially covering repos and buy-sellback transactions. Investment firms and credit institutions will not be required to comply with reporting provisions until 12 months from the date of the European Commission adopting the relevant regulatory and implementing technical standards, and for UCITS and AIFs, until 18 months has elapsed from the date of their adoption. The SFT reporting rules have not yet been finalised following extended disagreement between the 21 Regulation (EU) 2015/2365 of the European Parliament and of the Council of 25 November 2015 on transparency of securities financing transactions and of reuse and amending Regulation (EU) No 648/2012. Commission and ESMA.22 Although compliance will not be required until early/mid-2020, many financial market participants will need this time to put in place relevant IT and operational systems for collateral management and the reporting of SFTs. It is possible, however, that much of the work required may already have been done where systems have been introduced for EMIR, given similarities with regard to a number of the reporting provisions.23 Notwithstanding the final form or timing of Brexit, the UK is likely to adopt any rules that enter into force in the EU after “exit day” in substantively similar form to that in which they are published, given that the rules originate from globally agreed G20 standards. 22 The Commission announced its intention in July 2018 to endorse the RTS and the ITS, with some amendments compared to the draft submitted by ESMA to the Commission. ESMA has issued a statement that it does not agree with one of the amendments relating to the Commission’s proposal to drop ESMA’s provision that makes it mandatory for reports to include Legal Entity Identifiers for branches and Unique Transaction Identifiers once these have been developed and “endorsed by ESMA” – the Commission takes the view that this amounts to a delegation of power to ESMA to make changes to the reporting requirements that does not accord with the scope of their legal powers. 23 For example, if both entities that are subject to an SFT are located in the EU, they will both be required to report the trade to an authorised trade repository on a T+1 basis. 6. EU Securities Financing Transaction Regulation21 15In Principle 7. Amendments to the European Market Infrastructure Regulation EMIR has caused some difficulties since its promulgation in 2012, which a large EMIR reform project, expected to be finalised in a number of respects in 2019, is intended to address. As explained below, this so-called EMIR “refit” proposal will affect a large number of the requirements under EMIR, impacting all types of participants subject to the rules. There are also requirements under the current EMIR package that are scheduled for phase-in during 2019 relating to clearing and margin, for which participants should be preparing to the extent applicable to them. Finally, an intragroup exemption from clearing is expected to be extended following its expiry at the end of 2018. (i) The EMIR Refit Proposal Although the EMIR refit is still in the midst of the European legislative process and certain requirements may therefore find themselves altered by the time of its conclusion, the following sets out a number of key areas of the reform package as they currently stand in the process: • Proposal that all AIFs become “financial counterparties”: One of the key changes in the EMIR refit is the proposal that the definition of FC be amended to capture all AIFs, and not only AIFs that have an authorised or registered Alternative Investment Fund Manager (AIFM).24 24 Original drafts of the legislation had suggested that non-EU AIFs with a non-EU AIFM would be reclassified as FCs, which would have represented a significant expansion of the scope of EMIR to non-EU AIFMs. More recently, the definition of FC has been narrowed so that it captures EU AIFs (regardless of the location of the AIFM), as well as, per existing rules, AIFs (wherever located) with an authorised or registered AIFM. • Introduction of a “small financial counterparty”: A definition of “small financial counterparty” (SFC) is proposed to be introduced for entities that trade infrequently and do not pose a systemic risk; these entities would be exempt from the clearing obligation under EMIR.25 • Amendment of the time reference for the clearing threshold determination: The proposal is for a once-yearly determination based on the aggregate month-end average total notional amount for March, April and May, replacing the current 30- day rolling average determination. • Proposal to remove the requirement that clearing for one asset triggers clearing requirement for all asset classes: The EMIR refit is expected to remove the requirement that, where the clearing obligation is triggered by an NFC for one asset class subject to the clearing obligation, it is then subject to the clearing obligation for all asset classes subject to the clearing obligation. Instead, it is proposed that the NFC would be in scope for only the clearing obligation requirements for the class of derivative that has fallen over the relevant clearing obligation threshold; this change would significantly reduce the clearing burden for many entities that trade clearable products only relatively infrequently. • Proposed amendment of reporting requirement for NFC entities: It has been proposed that the reporting requirement be amended so that, where an FC has entered into a derivative transaction with an NFC falling below the clearing threshold, the FC would be responsible for reporting on behalf of both parties. • Proposed extension of the clearing exemption for pension schemes, which expired on 16 August 2018. 25 The determination for whether an entity is an FC or an SFC would, in current proposals, be made by applying the same clearing only once yearly, based on the aggregate month-end average total notional amount for March, April and May. Risk mitigation rules would however continue to apply to the SFC. 16 © 2019 Akin Gump Strauss Hauer & Feld (ii) Phase-In of Requirements Relating to Clearing and Margin The clearing obligation under EMIR will continue to be phased in during 2019 for Category 3 and Category 4 counterparties.26 Phase-in of the initial margin requirements under EMIR will also continue in 2019, with the threshold for mandatory initial margin falling to an aggregate average notional amount of uncleared derivatives on a groupwide basis above EUR 750 billion from 1 September 2019. Entities subject to the clearing and margin rules will need to consider, among other matters, whether their clearing/CCP relationships are adequate and, for initial margin purposes, which custodian they will use, and the required steps to implement custodial relationships. (iii) Extension of the Intragroup Exemption from the Clearing Obligation On 27 September 2018, ESMA submitted proposed amendments to the European Commission relating to the secondary legislation under EMIR concerning intragroup transactions with a third-country entity.27 These changes, once passed (which we fully expect to happen), will extend the expiry date for the exemption from clearing for interest rate derivative classes denominated in the G4 currencies to 21 December 2020.28 26 For (i) Category 3 counterparties (i.e., FCs whose group’s aggregate month-end average of outstanding notional amount of OTC derivatives is below 8 billion EUR, assessed over January/ February/March, and AIFs that are NFCs below the threshold) from 21 June 2019 for CDS; and (ii) for Category 4 counterparties (those that are NFCs not falling within any other category), from 9 May 2019. 27 https://www.esma.europa.eu/sites/default/files/library/esma70- 151-1768_final_report_no.6_on_the_clearing_obligation_intragroup. pdf. 28 The exemption expired on 21 December 2018, for interest rate derivative classes denominated in G4 currencies subject to the clearing obligation and will expire on later dates for CDS and certain other interest rate derivatives. Many industry participants have not prepared for expiry of the exemption, partly because it was expected that the exemption would be extended until third-country equivalence decisions are in place. These are currently absent. ESMA therefore issued a statement29 on 31 October 2018 in which it emphasised that national regulators should apply a “risk-based approach” to enforcement of noncompliance with the clearing obligation by entities utilising the intragroup exemption from clearing. 29 https://www.esma.europa.eu/sites/default/files/library/esma70- 151-1773_public_statement_on_co_and_to_for_intragroup_as_well_ as_cat_4.pdf. 17In Principle 8. EU Benchmarks Regulation and LIBOR Cessation The BMR30 entered into force on 1 January 2018, regulating the “use,” “contribution to” and “administration” of benchmarks. The BMR continues to raise issues into 2019, in particular, for “users” of benchmarks, which will include asset managers. (i) Challenges for Users of Benchmarks In 2019, users of benchmarks are finding themselves with the difficult question of whether they are able to continue to use non-EU administered benchmarks from the end of the year. The “use” restrictions in the BMR prevent EU-based entities from referencing a non-EU administered and non-ESMA authorised “index” used as a benchmark in financial instruments from 1 January 2020, unless, in broad terms: i. The jurisdiction of the administrator of the index has been declared “equivalent” to the EU for the purposes of the BMR by the European Commission. ii. An administrator located outside of the EU has been recognised by an EU member state under the BMR. or iii. An EU located administrator endorses a non- EU benchmark and takes responsibility for its supervision. 30 Regulation (EU) 2016/1011 of the European Parliament and of the Council of 8 June 2016, on indices used as benchmarks in financial instruments and financial contracts or to measure the performance of investment funds and amending Directives 2008/48/ EC and 2014/17/EU and Regulation (EU) No 596/2014. Although we are currently in the middle of a “transitional period” under the BMR (which permits entities located in the EU to use existing indices/ benchmarks until 1 January 2020, even where none of these circumstances are met, provided that they “used” the benchmark when the BMR entered into force), there is the problem that, to date, no jurisdiction has yet been declared “equivalent” to the EU for the purposes of the BMR. Recognition and endorsement of benchmarks have also not proved popular. It is not clear therefore how non-EU benchmarks may be used after the transitional period. Given this concern, a number of financial industry groups collaborated in November 2018 to formally request by letter to ESMA and the Commission that the transition period be extended.31 We expect that it is very likely that regulatory guidance will be published during the course of 2019 to assist with these issues. (ii) Users’ Updates to “Robust Written Plans” and the Impact of the Future Cessation of LIBOR In 2019, updates to benchmark plans may be needed in light of LIBOR ceasing to exist. Under the BMR, users of benchmarks are required to have in place a “robust written plan” to address fallbacks for any benchmarks used in case they cease to be available or if they change such that they can no longer be used.32 These plans are required to be made available to the FCA at their request. Written plans for benchmarks should be looked at carefully in 2019, particularly where any plans reference LIBOR. As is now well known, the LIBOR benchmark rate is expected to cease to exist from the end of 2021 following the FCA’s statement in July 2017 that panel bank contributors to LIBOR will no longer be encouraged by the FCA to provide quotes to set LIBOR. Monitoring preparations for LIBOR’s cessation also appears to be an FCA supervisory priority for 2019.33 31 https://www.isda.org/2018/11/21/briefing-on-the-need-to-extend- the-transition-period-of-the-benchmark-regulation/. 32 Article 28(2). 33 In September last year, the FCA sent a “Dear CEO” to large UK banks and insurance companies in which the FCA asked for details of recipients’ preparations and the actions being taken to manage transition from LIBOR to alternative interest rate benchmarks. Although the audience consisted of large banking and insurance institutions, it is difficult to preclude the FCA looking at these issues more generally for entities under their supervision, including asset managers. 18 © 2019 Akin Gump Strauss Hauer & Feld (iii) Brexit and the BMR On 23 November 2018, the UK government published an explanatory stating how the BMR will be “on-shored” in the event of a “no-deal” Brexit.34 According to the memo, the UK plans to introduce a “UK version” of the BMR that would effectively be a copyout of the EU version of the BMR as in force on exit day. Benchmarks on the ESMA register are proposed to be grandfathered for use in the UK for 34 https://www.gov.uk/government/publications/draft-benchmarks- amendment-and-transitional-provision-eu-exit-regulations-2019/ the-benchmarks-amendment-eu-exit-regulations-2018-explanatory- information. 24 months from the date of the UK’s exit from the EU. The extent to which the “UK BMR” would reflect updates to the “EU BMR” post-Brexit is not clearly addressed; however, it is not inconceivable that the two regimes could diverge over time in significant respects. 19In Principle 9. EU Action Plan on Sustainability and Asset Management In November 2018, the European Commission published a consultation35 for input from stakeholders regarding the extent to which institutional investors and asset managers should be subject to duties of “sustainability,” and reflect these in their decision- making relating to investments. The consultation follows publication of an interim report by the EU High Level Expert Group on sustainable finance in July 2017, which recommended that the Commission clarify the fiduciary duties of institutional investors and asset managers concerning environmental, social and governance factors, and long-term sustainability. The striking aspect of the consultation is the planned shift to using financial regulation as a tool to encourage the sustainability of investments. No laws or regulations have been proposed at this stage. Although respondents who have published their replies publically have generally agreed that sustainability should be more directly addressed in the legal framework applicable to investment decision- making, some have resisted the assumptions that asset managers have hitherto ignored sustainability as an integral part of their investment process. 35 https://ec.europa.eu/info/sites/info/files/2017-investors-duties- sustainability-consultation-document_en.pdf. Questions that have been asked include the following: • “Do you think relevant investment entities should consider sustainability factors in their investment decision-making?” • “What are the sustainability factors that the relevant investment entities should consider?” (Choices include climate factors, social factors, governance factors and other environmental factors.) • “Which of the following entities should consider sustainability factors in their investment decision- making?” (Choices include collective investment funds (AIFs, UCITS, etc.), insurance providers, and individual portfolio managers.) • “Within the portfolio’s asset allocation, should relevant investment entities consider sustainability factors even if the consideration of these factors would lead to lower returns to beneficiaries/clients in the medium/short term?” 20 © 2019 Akin Gump Strauss Hauer & Feld 10. Individuals on the Enforcement Agenda: 2018 Key Cases and Enforcement Round-Up As discussed more fully in the previous section, there were comparatively few enforcement cases in 2018, and correspondingly few final notices or decisions from the Upper Tribunal. Of the few cases that were decided, however, we note the following: Jes Staley36 On 11 May 2018, the FCA and the PRA fined Barclays’ CEO, Jes Staley, a total of £642,430 for allegedly failing to act with due skill, care and diligence in the way that he conducted himself in response to an anonymous letter received by Barclays in June 2016. Barclays is also now subject to special requirements by which it must report annually to the regulators detailing how it handles whistleblowing, with personal attestations required from Senior Managers responsible for the relevant systems and controls. According to the regulatory notices, in June 2016, a member of Barclays’ board received an anonymous letter from an individual outside the bank, purportedly a shareholder, citing concerns about a senior employee, Barclays’ process for hiring him and Mr. Staley’s role in dealing with those concerns at a previous employer. Later that month, Barclays received a second anonymous letter expressed as being from a Barclays employee. Mr. Staley became concerned that the letters were part of a campaign against the employee and targeted at undermining Mr. Staley’s hiring strategy. Mr. Staley instructed the firm’s security team to identify the author of the first letter. Mr. Staley was informed that the letter was being treated as a whistleblower, and so he should not attempt to uncover the author. Although Mr. 36 https://www.fca.org.uk/publication/final-notices/mr-james- edward-staley-2018.pdf. Staley initially accepted this advice, he later resumed his search to identify the author after he mistakenly interpreted an update from compliance that the correspondence was no longer being treated as a whistleblower. The final notices addressed to Mr. Staley from the FCA and the PRA found that the Barclays CEO was in breach of the requirement to act with due skill, care and diligence (individual conduct rule 2) because he should have identified that: • He had a conflict of interest in relation to the letter and needed to take particular care to maintain an appropriate distance from Barclays’ internal investigation. • There was a risk that he would not be able to exercise impartial judgment in relation to how Barclays should respond. • Once the complaint was in the hands of the Compliance team, it was important that Compliance retained control over its investigation process. While the regulators said that Mr. Staley made serious errors of judgment, they did not find him to have acted with a lack of integrity. They did, however, point out that the standard of conduct expected from a CEO under individual conduct rule 2 was more exacting than for other employees and that CEOs must ensure that appropriate standards of governance are maintained. The final notices make no allegations regarding the Senior Manager Conduct Rules. Although the regulators acknowledged that Mr. Staley made no personal gain from the events, they viewed his misconduct as sufficiently serious for each to impose a penalty of 10% of his annual income (with a 30% reduction in the overall fine for agreeing to settle at an early stage in proceedings). Barclays has also announced that it reduced Mr. Staley’s compensation for 2016 by £500,000. In addition to the penalty imposed on Mr. Staley, Barclays agreed to enhanced reporting requirements under which it must inform the regulators on an annual basis how it handles whistleblowing, with personal attestations required from those Senior Managers responsible for the relevant systems and controls. In related proceedings, New York State’s financial 21In Principle regulator fined Barclays Bank Plc and its New York branch US$15 million based on the same conduct that underlies the enforcement in the UK.37 The New York agency accused the bank of governance shortfalls and suggested that it had taken a “step back” after prior enforcement for other violations. Alistair Rae Burns38 Mr. Burns’ case was factually complicated. The Upper Tribunal’s judgment is informative on some important questions of principle, however: To what extent is an approved person liable to ensure that a particular investment is suitable for a particular customer when it is known that that customer is receiving independent advice from a third party? Mr. Burns was an approved person holding the CF1 (director) position at TailorMade Independent Limited (TMI). TMI itself was authorised by the FCA and acted as an independent financial advisor, particularly advising customers on the benefits of transferring their pensions into Self-Invested Personal Pension Schemes (SIPP). Mr. Burns also had interests in other companies that functioned under the “TailorMade” brand (e.g., TailorMade Alternative Investments Limited (TMAI)). TMAI was not authorised by the FCA, although its business was the promotion of comparatively illiquid and esoteric investments to customers. Many of these investments were inappropriate, and, eventually, TMI and TMAI had to stop trading, and TMI’s authorisation was removed. Amongst other allegations, the FCA alleged against Mr. Burns that he had failed to take reasonable steps to ensure that TMI, as a regulated entity, gave advice that was suitable for its customers. Further, the FCA alleged that TMI failed to obtain the necessary information from its clients to ensure that it had enough information so that it had a reasonable basis to believe that such investment advice given was suitable (e.g., information on the customer’s financial situation, investment objectives, and knowledge and experience in relation to the relevant types of investment). These rules are laid out in the FCA handbook at COBS 9.2. In defence, Mr. Burns pointed out that the investments in question were not “specified investments”; that is, they were not investments subject to regulation in all contexts. Second, Mr. Burns argued that all TMI did was arrange to set up a SIPP for a customer and that it did not give advice on the investments that went into 37 https://www.nytimes.com/2018/12/18/business/barclays- whistle-blower-fine.html. 38 https://www.bailii.org/uk/cases/UKUT/TCC/2018/246.pdf. the SIPP, and that it was TMAI that did this. The Tribunal found that, in any circumstance where a firm gives advice to a customer on the merits of establishing a SIPP, any advice given on the merits of the underlying assets to be held within the SIPP must fall within the scope of the regulator’s rules, whether or not they would, in another context, be considered specified investments. Mr. Burns’ first argument was therefore unsuccessful: The investments in a SIPP are subject to regulation in this context. Second, whilst the Tribunal accepted that, where a customer has “genuinely made a decision without advice from the IFA firm which arranges for the establishment of the SIPP to acquire investments to be held within the SIPP, then the obligations of the IFA firm … may be more limited.”39 The Tribunal accepted that a SIPP exists for the customer to make some of his or her own decisions about investments and that merely setting up a SIPP for a customer did not necessarily mean that TMI would have to scrutinise the investments as if it had offered to advise on them alone. The Tribunal thought, however, that any “limitation” on the COBS 9.2 principles on which TMI might try to avail itself was narrow. It was open to TMI to take into account the fact that the customer had already decided (possibly with advice) the type of investments that he or she wanted to hold in a SIPP when assessing the client’s knowledge of the sector. It did not, however, mean that TMI or Mr. Burns was excused from advising on the underlying investments at all; it was still necessary for them to gather enough information about the customer to decide whether the proposed investments were suitable. The Tribunal approved a lower-than-requested financial penalty against Mr. Burns of £60,000 and upheld the FCA’s decision to impose a prohibition on Mr. Burns. Investment advisers should be aware that the COBS 9.2 rules (to gather enough information about a customer to determine whether a particular investment is suitable) may apply to investments that might otherwise not be regulated if the client is being advised in relation to another, related action that is regulated. Further, advisers should beware that instructions from a customer cannot be followed without thought. If the customer has received advice from another firm, the adviser may take this into account, but still must decide whether the advice that the customer has received is suitable. 39 [2018] UKUT 246 (TCC), [268]. 22 © 2019 Akin Gump Strauss Hauer & Feld Angela Burns40 On 24 May 2013, the FCA published a decision notice against Angela Burns fining her £154,800 and issuing a prohibition order. Five and a half years later, after references to the Upper Tribunal and the Court of Appeal, and an attempted appeal to the Supreme Court, the FCA issued its final notice against Ms. Burns in December 2018. Ms. Burns had been an NED at two mutual societies and acted as chair for their investment committees. Ms. Burns was engaged by the societies to provide investment advice, and she suggested a registered investment advisor. Unbeknownst to the mutual societies, however, Ms. Burns, at the same time, was trying to elicit consultancy work for herself with the investment advisor. In her approach to the investment advisor, Ms. Burns explicitly referred to her NED positions in the mutual societies to make herself more attractive. In falsely holding herself out as a neutral investment advisor for the mutual societies, and aggravating this by relying on her position in those societies for her own gain with the investment advisor, the FCA – and the Upper Tribunal and the Court of Appeal agreed – decided that Ms. Burns was in breach of Principle 1, to act with integrity in carrying out her accountable functions. The FCA determined that she should have declared her conflicts of interest. Consequently, the FCA issued a prohibition order against Ms. Burns. The one success that Ms. Burns had before the Upper Tribunal, which was not disturbed on appeal to the Court of Appeal, was to have the proposed fine of £154,800 reduced to £20,000. ENRC v. SFO41 Firms often bring in external law firms to conduct investigations and to provide reports on what has happened. Firms choose to instruct outside counsel for these investigations for a number of reasons, but one important reason is the hope that the final report will be protected by legal professional privilege and so will not have to be disclosed to a court or the regulator. Last year, we drew attention to two cases where 40 https://www.fca.org.uk/publication/final-notices/angela- burns-2018.pdf. 41 https://www.bailii.org/ew/cases/EWCA/Civ/2018/2006.html. the court had taken a narrow view of privilege, and compelled the firms involved to disclose various notes and papers produced by external law firms during the investigation. One of those cases, Eurasian Natural Resources Corporation Limited v. Serious Fraud Office, has now been successfully appealed to the Court of Appeal. The judgment given is helpful for firms, but it still does not mean that everything produced by a law firm during an investigation will be covered by privilege. In particular, timing will matter. In December 2010, ENRC received an email from a whistleblower alleging criminal conduct in Kazakhstan and Africa. ENRC appointed external lawyers to investigate this. By March 2011, ENRC was aware that the SFO was interested in the situation, and ENRC’s general counsel arranged for the firm’s dawn-raid procedures to be reviewed and upgraded in response. ENRC’s head of compliance predicted a dawn-raid before the end of summer 2011. In August, the SFO wrote to ENRC advising it to consider carefully the SFO’s Self-Reporting Guidelines, and requested a meeting with its general counsel. The relevant question in this case was whether documents created by the external law firm, including notes of interviews with employees, after this letter was received would be protected by privilege. There are two branches of legal professional privilege, namely legal advice privilege and litigation privilege. ENRC argued that the documents in dispute should generally be protected under litigation privilege, and further that the notes of interviews with employees should also be protected under legal advice privilege. In broad terms, legal advice privilege protects professional communications between a lawyer and a client whenever these communications are made. Litigation privilege, on the other hand, protects communications that are made when legal proceedings are “reasonably contemplated” and when the communications are made for the “sole or dominant purpose” of those proceedings. At first instance last year, Mrs. Justice Andrews decided that the notes of interviews with employees could not be protected by legal advice privilege.42 There is Court of Appeal authority that legal advice privilege can arise between only lawyers and employees who have been specially authorised to seek and receive legal advice. These employees had 42 https://www.bailii.org/ew/cases/EWHC/QB/2017/1017.html. 23In Principle not been specially designated, and so she decided that legal advice privilege would not apply. Mrs. Justice Andrews further decided that, in the relevant period after the SFO’s letter in August 2011, ENRC did not reasonably contemplate that proceedings would be brought. Consequently, she found that litigation privilege could also not apply to these documents. The Court of Appeal rarely overrules its own precedents. Whilst it was overtly critical of the authority restricting legal advice privilege to communications between a lawyer and only some employees, the Court left it to the Supreme Court to decide the question. The SFO has said that it does not plan to appeal this decision; we may have to wait some time for another case to reach the Supreme Court. In any event, overruling this decision would not have made a difference to the outcome of this case, since the Court of Appeal thought that litigation privilege should apply to the documents in this case, including notes made of interviews with employees. It held that, in all the circumstances of this case, and especially where (a) the SFO had gone beyond merely stating general principles from its guidelines and (b) lawyers had been appointed to conduct an investigation, there was “clear ground” to say that proceedings were reasonably in contemplation. Indeed, much of what ENRC was attempting to do was avoid the proceedings that it thought would be coming its way. The message from this case is generally positive. Even though legal advice privilege remains somewhat unhelpful in terms of protecting investigation material, the courts should now look more favourably on litigation privilege claims. Santander43 On 19 December 2018, the FCA fined Santander £32.8 million for failing to effectively process the accounts and investments of deceased customers. The FCA found that, between 1 January 2013 and 11 July 2016, the bank breached: • Principle 3 of its Principles for Businesses (management and control) by failing to take reasonable care to organise and control its probate and bereavement process responsibly and effectively with adequate risk management systems. 43 https://fca.org.uk/publication/final-notices/santander-uk-plc-2018. pdf. • Principle 6 (customers’ interests) by failing to ensure that its probate and bereavement process paid due regard to the interests of its customers and their representatives and treated them fairly. The FCA said that the bank’s probate and bereavement process contained weaknesses that reduced its ability to effectively identify all the funds that it held that formed part of a deceased customer’s estate. This resulted in it being unable to effectively follow up with representatives of the deceased customer. Such weaknesses meant that the process would start, but would stall and remain incomplete, meaning that funds would not be transferred to those who were entitled to receive them. Since 2015, Santander has carried out remediation exercises to transfer funds from affected accounts to the rightful beneficiaries. These exercises are almost complete, which means that most of the 40,000 affected customers have now received the funds, together with interest and compensation for any consequential loss. The bank was also found to have breached Principle 11 (relations with regulators) for failing to promptly disclose information relating to the above-detailed issues to the FCA. Mark Steward, the FCA’s head of enforcement, cautioned that the FCA remains “on the lookout for firms with poor systems and controls and will take action to deter such failings to ensure customers are properly protected.”44 Arif Hussein45 The FCA issued a decision notice prohibiting Arif Hussein from performing any function in relation to any regulated activity on the grounds that Mr. Hussein had knowingly or recklessly engaged in conduct that he believed was improper; that Mr. Hussein was knowingly or recklessly complicit in his employer, UBS’s, manipulation of LIBOR; and that Mr. Hussein lacked honesty and integrity. In particular, the FCA alleged that Mr. Hussein had engaged in improper internal chats with a trader- submitter at UBS for the purpose of influencing UBS’s LIBOR submissions. Mr. Hussein referred this notice to the Upper Tribunal. 44 https://www.fca.org.uk/news/press-releases/santander-uk-plc- fined-serious-failings-its-probate-and-bereavement-process. 45 https://www.bailii.org/uk/cases/UKUT/TCC/2018/186.pdf. 24 © 2019 Akin Gump Strauss Hauer & Feld Before the FCA’s RDC, Mr. Hussein had contended that he had been involved in internal chats with trader-submitters to explore internal opportunities to hedge or “net” his trading positions (in short, he had engaged with trader-submitters in their capacities as short-end derivatives traders, rather than as LIBOR submitters). Before the Upper Tribunal, Mr. Hussein repeated this defence, but he also stated that he believed at that time that it was acceptable for trader- submitters to take into account trading positions when determining what a LIBOR submission would be. The FCA contended that Mr. Hussein had changed his defence between the interviews he had had at the FCA and the RDC hearing, and then at the Upper Tribunal hearing, and that this change indicated a lack of integrity. The Upper Tribunal agreed with Mr. Hussein’s position that he had thought his chats with the trader- submitters to be appropriate. The Upper Tribunal noted that, at the relevant time, there were no formal procedures within UBS regulating the LIBOR submission process, and Mr. Hussein did believe that his trading positions could be taken into account by the submitters. The Tribunal found that Mr. Hussein did not act dishonestly or recklessly and that his participation in the chats was not contrary to the standards required of him. The Tribunal accepted, however, that Mr. Hussein had misled the FCA through his answers at interview and that he should have appreciated during the proceedings before the RDC that the chats had had a dual purpose: The chats had not simply been exploration into his hedging or netting options. The Tribunal found that Mr. Hussein should have told the RDC that he thought it permissible for his trading positions to be taken into account in the LIBOR submissions. The Tribunal therefore agreed with the FCA that Mr. Hussein had changed his position and that this meant that he must have misled the regulator and failed in his duty to be candid with the FCA. Somewhat reluctantly it appears, the FCA agreed that this failing by Mr. Hussein was sufficiently serious that it was reasonable for the FCA to impose a prohibition order on him. Notwithstanding that the Tribunal disagreed with the RDC and the FCA’s submissions on many issues, therefore, the Tribunal dismissed Mr. Hussein’s reference. Interestingly, the Upper Tribunal expressed some concern that a comparatively junior trader should have received a prohibition order from the FCA whilst more senior managers had apparently escaped sanction. Whilst the Upper Tribunal has no power to do anything more than express its strong concerns about this to the FCA, this statement is somewhat unusual. The most important message from this case is the obligation to reflect and be truthful about what happened from as early in the investigation as possible. Had Mr. Hussein’s position remained consistent throughout the proceedings, it seems likely that the Tribunal would have found for him; as the Tribunal said, “we do not believe him to be a thoroughly bad person. He made a serious error of judgment.” Unlike in court litigation, where parties are expected to develop their cases as the proceedings progress, the duty of candour to the FCA means that this approach is not open in these regulatory proceedings. Everything that an authorised or approved person does, whether before the investigation or during the investigation, is open to scrutiny, and litigation conduct must adapt accordingly. Tesco Personal Finance plc46 In November 2016, Tesco Personal Finance plc (Tesco Bank) reported that it had suffered a serious cyber breach during which £2.26 million was stolen from 9,000 consumers’ accounts. Tesco Bank quickly refunded any customers who had lost money in the attack. In October 2018, the FCA announced that it would fine Tesco Bank £16.4 million for failing to exercise due skill, care and diligence in protecting its customers. The FCA noted that this sort of cyber-attack was a “foreseeable risk” from which Tesco Bank had failed to protect its customers. Further, the FCA determined that, once it became aware of the cyber breach, Tesco Bank had failed to act with “sufficient rigour, skill and urgency.” Even if the cyber breach had been too sophisticated for Tesco Bank reasonably to be expected to have been able to prevent – which was not the case here – the FCA was critical that Tesco Bank did not have in place a response plan that would permit a swift recovery. The FCA requires firms to have an effective plan in place setting out what to do if a damaging event occurs, whether that event should have been foreseen or not. 46 https://www.fca.org.uk/publication/final-notices/tesco-personal- finance-plc-2018.pdf. 25In Principle Contact Information If you have any questions regarding this update, please contact: Helen Marshall Partner, London helen.marshall@akingump.com +44 20.7661.5378 Ezra Zahabi Partner, London ezra.zahabi@akingump.com +44 20.7661.5367 Joe Hewton Associate, London joe.hewton@akingump.com +44 20.7012.9624 James Campbell Associate, London james.campbell@akingump.com +44 20.7012.9852 EU/UK Financial Services Regulatory Practice Akin Gump’s EU/UK Financial Regulatory Practice – which forms part of the Firm’s wider Global Financial Regulatory Group – advises its clients (which include institutional and alternative investment managers, retail and investment banks, brokerages and senior individuals) on all aspects of the UK and EU financial services regulatory framework. The Practice has taken a leading role in advising the global financial services industry on regulatory actions, the impact of EU legislation and on commercial and securities issues that affect it. The Practice is particularly well known for its work acting for financial institutions and senior individuals who find themselves subject to investigation by regulators and exchanges. © 2019 Akin Gump Strauss Hauer & Feld. All rights reserved. Attorney advertising. This document is distributed for informational use only; it does not constitute legal advice and should not be used as such. Prior results do not guarantee a similar outcome. Akin Gump Strauss Hauer & Feld is the practising name of Akin Gump LLP. Akin Gump LLP is a New York limited liability partnership and is authorised and regulated by the Solicitors Regulation Authority under number 267321. A list of the partners is available for inspection at Eighth Floor, Ten Bishops Square, London E1 6EG. For more information about Akin Gump LLP, Akin Gump Strauss Hauer & Feld LLP and other associated entities under which the Akin Gump network operates worldwide, please see our Legal Notices page Akin Gump Strauss Hauer & Feld is a leading global law firm providing innovative legal services and business solutions to individuals and institutions. Founded in 1945 by Richard Gump and Robert Strauss with the guiding vision that commitment, excellence and integrity would drive its success, the firm focuses on building lasting and mutually beneficial relationships with its clients. Our firm’s clients range from individuals to corporations and nations. We offer clients a broad- spectrum approach, with over 85 practices that range from traditional strengths such as appellate, corporate and public policy to 21st century concentrations such as climate change, intellectual property litigation and national security. akingump.com


    Impact of Shale Gas Development on Regional Water Quality | killexams.com real questions and Pass4sure dumps

    Structured Abstract Background

    Natural gas has recently emerged as a relatively clean energy source that offers the opportunity for a number of regions around the world to reduce their reliance on energy imports. It can also serve as a transition fuel that will allow for the shift from coal to renewable energy resources while helping to reduce the emissions of CO2, criteria pollutants, and mercury by the power sector. Horizontal drilling and hydraulic fracturing make the extraction of tightly bound natural gas from shale formations economically feasible. These technologies are not free from environmental risks, however, especially those related to regional water quality, such as gas migration, contaminant transport through induced and natural fractures, wastewater discharge, and accidental spills. The focus of this Review is on the current understanding of these environmental issues.

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    Drilling multiple horizontal wells from a single well pad allows access to as much as 1 square mile of shale that is located more than a mile below. [Image courtesy of Range Resources Appalachia]

    Advances

    The most common problem with well construction is a faulty seal that is emplaced to prevent gas migration into shallow groundwater. The incidence rate of seal problems in unconventional gas wells is relatively low (1 to 3%), but there is a substantial controversy whether the methane detected in private groundwater wells in the area where drilling for unconventional gas is ongoing was caused by well drilling or natural processes. It is difficult to resolve this issue because many areas have long had sources of methane unrelated to hydraulic fracturing, and pre-drilling baseline data are often unavailable.

    Water management for unconventional shale gas extraction is one of the key issues that will dominate environmental debate surrounding the gas industry. Reuse of produced water for hydraulic fracturing is currently addressing the concerns regarding the vast quantities of contaminants that are brought to the surface. As these well fields mature and the opportunities for wastewater reuse diminish, the need to find alternative management strategies for this wastewater will likely intensify.

    Outlook

    Improved understanding of the fate and transport of contaminants of concern and increased long-term monitoring and data dissemination will help effectively manage water-quality risks associated with unconventional gas industry today and in the future. Confidentiality requirements dictated by legal investigations combined with the expedited rate of development and the limited funding for research are major impediments to peer-reviewed research into environmental impacts. Now is the time to work on these environmental issues to avoid an adverse environmental legacy similar to that from abandoned coal mine discharges in Pennsylvania.

    Fracturing Hydrology?

    Hydraulic fracturing, widely known as "fracking," is a relatively inexpensive way to tap into what were previously inaccessible natural gas resources. Vidic et al. (p. 826) review the current status of shale gas development and discuss the possible threats to water resources. In one of the hotbeds of fracking activity, the Marcellus Shale in the eastern United States, there is little evidence that additives have directly entered groundwater supplies, but the risk remains. Ensuring access to monitoring data is an important first step toward addressing any public and environmental health concerns.

    Abstract

    Unconventional natural gas resources offer an opportunity to access a relatively clean fossil fuel that could potentially lead to energy independence for some countries. Horizontal drilling and hydraulic fracturing make the extraction of tightly bound natural gas from shale formations economically feasible. These technologies are not free from environmental risks, however, especially those related to regional water quality, such as gas migration, contaminant transport through induced and natural fractures, wastewater discharge, and accidental spills. We review the current understanding of environmental issues associated with unconventional gas extraction. Improved understanding of the fate and transport of contaminants of concern and increased long-term monitoring and data dissemination will help manage these water-quality risks today and in the future.

    Natural gas has recently emerged as an energy source that offers the opportunity for a number of regions around the world to reduce their reliance on energy imports or strive toward energy independence (1, 2). It may also be a potential transition fuel that will allow for the shift from coal to renewable energy resources while helping to reduce the emissions of CO2, criteria pollutants, and mercury by the power sector (3). The driving force behind this shift is that it has become economically feasible to extract unconventional sources of gas that were previously considered inaccessible. Conventional gas is typically extracted from porous sandstone and carbonate formations, where it has generally been trapped under impermeable cap-rocks after migration from its original source rock. In contrast, unconventional gas is usually recovered from low-permeability reservoirs or the source rocks themselves, including coal seams, tight sand formations, and fine-grained, organic-rich shales. Unconventional gas formations are characterized by low permeabilities that limit the recovery of the gas and require additional techniques to achieve economical flow rates (2).

    The archetypical example of rapidly increasing shale gas development is the Marcellus Shale in the eastern United States (Fig. 1). Intensive gas extraction began there in 2005, and it is one of the top five unconventional gas reservoirs in the United States. With a regional extent of 95,000 square miles, the Marcellus is one of the world’s largest known shale-gas deposits. It extends from upstate New York, as far south as Virginia, and as far west as Ohio, underlying 70% of the state of Pennsylvania and much of West Virginia. The formation consists of black and dark gray shales, siltstones, and limestones (4). On the basis of a geological study of natural fractures in the formation, Engelder (5) estimated a 50% probability that the Marcellus will ultimately yield 489 trillion cubic feet of natural gas.

    Fig. 1 Marcellus Shale wells in Pennsylvania.

    Rapid development of Marcellus Shale since 2005 resulted in more than 12,000 well permits, with more than 6000 wells drilled and ~3500 producing gas through December 2012 (average daily production ranged from <0.1 to >20 million cubic feet/day (MMCF/D). Current locations of centralized wastewater treatment facilities (CWTs) are distributed to facilitate treatment and reuse of flowback and produced water for hydraulic fracturing.

    Concerns that have been voiced (6) in connection with hydraulic fracturing and the development of unconventional gas resources in the United States include land and habitat fragmentation as well as impacts to air quality, water quantity and quality, and socioeconomic issues (3, 5, 7). Although shale gas development is increasing across several regions of the United States and the world (such as the United Kingdom, Poland, Ukraine, Australia, and Brazil), this review focuses on the potential issues surrounding water quality in the Appalachian region and specifically the Marcellus Shale, where the majority of published studies have been conducted. Our Review focuses on chemical aspects of water quality rather than issues surrounding enhanced sediment inputs into waterways, which have been discussed elsewhere (4, 7, 8).

    Cause of the Shale Gas Development Surge

    Recent technological developments in horizontal drilling and hydraulic fracturing have enabled enhanced recovery of unconventional gas in the United States, increasing the contribution of shale gas to total gas production from negligible levels in 1990 to 30% in 2011 (1). Although the first true horizontal oil well was drilled in 1929, this technique only became a standard industry practice in the 1980s (9). Whereas a vertical well allows access to tens or hundreds of meters across a flat-lying formation, a horizontal well can be drilled to conform to the formation and can therefore extract gas from thousands of meters of shale. Horizontal wells reduce surface disturbance by limiting the number of drilling pads and by enabling gas extraction from areas where vertical wells are not feasible. However, horizontal drilling alone would not have enabled exploitation of the unconventional gas resources because the reservoir permeability is not sufficient to achieve economical gas production by natural flow. Hydraulic fracturing—"hydrofracking," or "fracking"—was developed in the 1940s to fracture and increase permeability of target formations and has since been improved to match the characteristics of specific types of reservoirs, including shales.

    Hydraulic fracturing fluids consist of water that is mixed with proppants and chemicals before injection into the well under high pressure (480 to 850 bar) in order to open the existing fractures or initiate new fractures. The proppant (commonly sand) represents generally ~9% of the total weight of the fracturing fluid (10) and is required to keep the fractures open once the pumping has stopped. The number, type, and concentration of chemicals added are governed by the geological characteristics of each site and the chemical characteristics of the water used. The fracturing fluid typically used in the Marcellus Shale is called slickwater, which means that it does not contain viscosity modifiers that are often added to hydrofracture other shales so as to facilitate better proppant transport and placement.

    Chemical additives in the fluids used for hydraulic fracturing in the Marcellus Shale include friction reducers, scale inhibitors, and biocides (Table 1 and Box 1). Eight U.S. states currently require that all chemicals that are not considered proprietary must be published online (11), whereas many companies are voluntarily disclosing this information in other states. However, many of the chemicals added for fracturing are not currently regulated by the U.S. Safe Drinking Water Act, raising public concerns about water supply contamination. From 2005 to 2009, about 750 chemicals and other components were used in hydraulic fracturing, ranging from harmless components, including coffee grounds or walnut hulls, to 29 components that may be hazardous if introduced into the water supply (6). An inorganic acid such as hydrochloric acid is often used to clean the wellbore area after perforation and to dissolve soluble minerals in the surrounding formation. Organic polymers or petroleum distillates are added to reduce friction between the fluid and the wellbore, lowering the pumping costs. Antiscalants are added to the fracturing fluid so as to limit the precipitation of salts and metals in the formation and inside the well. Besides scaling, bacterial growth is a major concern for the productivity of a gas well (quantity and quality of produced gas). Glutaraldehyde is the most common antibacterial agent added, but other disinfectants [such as 2,2-dibromo-3-nitrilopropionamide (DBNPA) or chlorine dioxide] are often considered. Surfactants (alcohols such as methanol or isopropanol) may also be added to reduce the fluid surface tension to aid fluid recovery.

    Table 1

    Common chemical additives for hydraulic fracturing.

    Box 1 Glossary of Terms

    Casing: steel pipe that is inserted into a recently drilled section of a borehole to stabilize the hole, prevent contamination of groundwater, and isolate different subsurface zones.

    Cementing: placing a cement mixture between the casing and a borehole to stabilize the casing and seal off the formation.

    Class II disposal wells: underground injection wells for disposal of fluids associated with oil and gas production.

    Flowback water: water that returns to the surface after the hydraulic fracturing process is completed and the pressure is released and before the well is placed in production; flowback water return occurs for several weeks.

    Produced water: water that returns to the surface with the gas after the well is placed in production; production water return occurs during the life of a well.

    Proppant: granular material, such as silica sand, ceramic media, or bauxite, that keeps the fractures open so that gas can flow to the wellbore.

    Slickwater fracturing – fracturing with fluid that contains mostly water along with friction reducers, proppants, and other additives; used for predominantly gas-bearing formations at shallower depths.

    Source rock - organic-rich sedimentary rocks, such as shale, containing natural gas or oil.

    Stray gas - gas contained in the geologic formation outside the wellbore that is accidentally mobilized by drilling and/or hydraulic fracturing.

    Methane Migration

    As inventoried in 2000, more than 40 million U.S. citizens drink water from private wells (12). In some areas, methane—the main component of natural gas—seeps into these private wells from either natural or anthropogenic sources. Given its low solubility (26 mg/L at 1 atm, 20°C), methane that enters wells as a solute is not considered a health hazard with respect to ingestion and is therefore not regulated in the United States. When present, however, methane can be oxidized by bacteria, resulting in oxygen depletion. Low oxygen concentrations can result in the increased solubility of elements such as arsenic or iron. In addition, anaerobic bacteria that proliferate under such conditions may reduce sulfate to sulfide, creating water- and air-quality issues. When methane degasses, it can also create turbidity and, in extreme cases, explode (13, 14). Therefore, the U.S. Department of the Interior recommends a warning if water contains 10 mg/L of CH4 and immediate action if concentrations reach 28 mg/L (15). Methane concentrations above 10 mg/L indicate that accumulation of gas could result in an explosion (16).

    The most common problem with well construction is a faulty seal in the annular space around casings that is emplaced to prevent gas leakage from a well into aquifers (13). The incidence rate of casing and cement problems in unconventional gas wells in Pennsylvania has been reported previously as ~1 to 2% (17). Our count in Pennsylvania from 2008 to March 2013 for well construction problems [such as casing or cementing incidents (18)] cited by the Pennsylvania Department of Environmental Protection (DEP) revealed 219 notices of violation out of 6466 wells (3.4%) (19). Of these, 16 wells in northern Pennsylvania were given notices with respect to the regulation that the "operator shall prevent gas and other fluids from lower formations from entering fresh groundwater" (violation code 78.73A). Most of the time, gas leakage is minor and can be remedied. However, in one case attributed to Marcellus drilling and leaky well casings, stray gas that accumulated in a private water well exploded near the northeastern Pennsylvania town of Dimock. A study of 60 groundwater wells in that area, including across the border in upstate New York (20), showed that both the average and maximum methane concentrations were higher when sampled from wells within 1 km of active Marcellus gas wells as compared with those farther away. Much discussion has since ensued as to whether the methane detected in these wells was caused by drilling or natural processes (21–24) because the area has long had sources of both thermogenic and biogenic methane unrelated to hydraulic fracturing, and no predrilling baseline data are available. The averages reported in that study for sites both near and far from drilling are not dissimilar from values for groundwater from areas of Pennsylvania and West Virginia sampled by the U.S. Geological Survey (USGS) before the recent Marcellus Shale development began, or samples in New York state where high-volume hydrofracturing is currently banned (Fig. 2).

    Fig. 2 Methane concentrations in groundwater and springs.

    (A) Published values for groundwater or spring samples include 239 sites in New York from 1999 to 2011 (84), 40 sites in Pennsylvania in 2005 (27), and 170 sites in West Virginia from 1997 to 2005 (85). Maxima varied from 68.5 mg/L in West Virginia, to 44.8 mg/L in Tioga County, Pennsylvania, where an underground gas storage field was leaking, to a value approaching 45 mg/L in New York. (B) Values shown with down arrows are averages for a set of wells in southeastern New York and northeastern Pennsylvania located <1 km (26 wells) and >1 km (34 wells) from active gas drilling (20).

    The reason gas is found so often in water wells in some areas is because methane not only forms at depth naturally, owing to high-temperature maturation of organic matter, but also at shallow depths through bacterial processes (25, 26). Both these thermogenic and biogenic gas types can migrate through faults upward from deep formations or laterally from environments such as swamps (swamp gas) or glacial till (drift gas) (14, 27). In addition, gas can derive from anthropogenic sources such as gas storage fields, coal mines, landfills, gas pipelines, and abandoned gas wells (28). In fact, ~350,000 oil and gas wells have been drilled in Pennsylvania, and the locations of ~100,000 of these are unknown (29). Thus, it is not surprising that gas problems have occurred in Pennsylvania long before the Marcellus development (30). Pennsylvania is not the only state facing this problem because about ~60,000 documented orphaned wells and potentially more than 90,000 undocumented orphaned wells in the United States have not been adequately plugged and could act as vertical conduits for gas (31).

    As natural gas moves in the subsurface, it can be partially oxidized, mixed with other gases, or diluted along flow paths. To determine its provenance, a "multiple lines of evidence approach" must be pursued (24). For example, researchers measure the presence of other hydrocarbons as well as the isotopic signatures of H, O, and C in the water or gas (16, 27, 31). Thermogenic gas in general has more ethane and a higher 13C/12C ratio than that of biogenic gas. Stable isotopes in thermogenic gas may sometimes even yield clues about which shale was the source of the gas (24, 32). In northeastern Pennsylvania, researchers argue whether the isotopic signatures of the methane in drinking-water wells indicate the gas derived from the Marcellus or from shallower formations (20, 24).

    Although determining the origin of gas in water wells may lead to solutions for this problem, the source does not affect liability because gas companies are responsible if it can be shown that any gas—not just methane—has moved into a water well because of shale-gas development activity. For example, drilling can open surficial fractures that allow preexisting native gas to leak into water wells (13). This means that pre- and post-drilling gas concentration data are needed to determine culpability. Only one published study compares pre- and post-drilling water chemistry in the Marcellus Shale drilling area. In that study, a sample of 48 water wells in Pennsylvania investigated between 2010 and 2011 within 2500 feet of Marcellus wells showed no statistical differences in dissolved CH4 concentrations before or shortly after drilling (33). In addition, no statistical differences related to distance from drilling were observed. However, that study reported that the concentration of dissolved methane increased in one well after drilling was completed nearby, which is possibly consistent with an average rate of casing problems of ~3%.

    The rate of detection of methane in water wells in northeast Pennsylvania [80 to 85% (20, 24)] is higher than in the wider region that includes southwestern Pennsylvania [24% (33)], where pre- and post-drilling concentrations were statistically identical. This could be a result of the small sample sizes of the two studies or because the hydrogeological regime in the northeast is more prone to gas migration (34). Such geological differences also may explain why regions of the Marcellus Shale have been characterized by controversy in regard to methane migration as noted above, whereas other shale gas areas such as the Fayetteville in Arkansas have not reported major issues with respect to methane (35). Reliable models that incorporate geological characteristics are needed to allow prediction of dissolved methane in groundwater. It is also critical to distinguish natural and anthropogenic causes of migration, geological factors that exacerbate such migration, and the likelihood of ancillary problems of water quality related to the depletion of oxygen. Answering some of these questions will require tracking temporal variations in gas and isotopic concentrations in groundwater wells near and far from drilling by using multiple lines of evidence (16, 24). Research should also focus on determining flow paths in areas where high sampling density can be attained.

    How Protective Is the "Well Armor"?

    The protective armor shielding the freshwater zones and the surrounding environment from the contaminants inside the well consist of several layers of casing (hollow steel pipe) and cement (Fig. 3). When the integrity of the wellbore is compromised, gas migration or stray gas can become an issue (14). Gas migration out of a well refers to movement of annular gas either through or around the cement sheath. Stray gas, on the other hand, commonly refers to gas outside of the wellbore. One of the primary causes of gas migration or stray gas is related to the upper portion of the wellbore when it is drilled into a rock formation that contains preexisting high-pressure gas. This high-pressure gas can have deleterious effects on the integrity of the outer cement annulus, such as the creation of microchannels (36). Temperature surveys can be performed shortly after the cementing job is completed in order to ensure that cement is present behind the casing. Acoustic logging tools are also available to evaluate the integrity of the cement annulus in conjunction with pressure testing.

    Fig. 3 Typical Marcellus well construction.

    (i) The conductor casing string forms the outermost barrier closest to the surface to keep the upper portion of the well from collapsing and it typically extends less than 12 m (40 ft) from the surface; (ii) the surface casing and the cement sheath surrounding it that extend to a minimum of 15 m below the lowest freshwater zone is the first layer of defense in protecting aquifers; (iii) the annulus between the intermediate casing and the surface casing is filled with cement or a brine solution; and (iv) the production string extends down to the production zone (900 to 2800 m), and cement is also placed in the annulus between the intermediate and production casing. Potential flaws in the cement annulus (Inset, "A" to "E") represent key pathways for gas migration from upper gas-bearing formations or from the target formation.

    It is well known that to effectively stabilize wellbores with cement in areas with zones of overpressurized gas, proper cement design and proper mud removal are essential (37, 38). If the hydrostatic pressure of the cement column is not higher than the gas-bearing formation pressure, gas can invade the cement before it sets. Conversely, if this pressure is too high, then the formation can fracture, and a loss of cement slurry can occur. Even when the density is correct, the gas from the formation can invade the cement as it transitions from a slurry to a hardened state (39). The slurry must be designed to minimize this transition time and the loss of fluid from the slurry to the formation. Also, if drilling mud is not properly cleaned from the hole before cementing, mud channels may allow gas migration through the central portion of the annulus or along the cement-formation interface. Even if the well is properly cleaned and the cement is placed properly, shrinkage of the cement during hydration or as a result of drying throughout the life of the well can result in crack development within the annulus (40, 41).

    Although the primary mechanisms contributing to gas migration and stray gas are understood, it is difficult to predict the risk at individual sites because of varying geological conditions and drilling practices. To successfully protect fresh water and the surrounding environment from the contaminants inside the well, the site-specific risk factors contributing to gas migration and stray gas must be better understood, and improvements in the diagnostics of cement and casing integrity are needed for both new and existing wells. Finding solutions to these problems will provide environmental agencies the knowledge needed to develop sound regulations related to the distances around gas wells that can be affected. It will also provide operators the ability to prevent gas migration and stray gas in a more efficient and economical manner.

    The Source and Fate of Fracturing Fluid

    The drilling and hydraulic fracturing of a single horizontal well in the Marcellus Shale may require 2 million to 7 million gallons of water (42). In contrast, only about 1 million gallons are needed for vertical wells because of the smaller formation contact volume. Although the projected water consumption for gas extraction in the Marcellus Shale region is 18.7 million gallons per day in 2013 (39), this constitutes just 0.2% of total annual water withdrawals in Pennsylvania. Water withdrawals in other areas are similarly low, but temporary problems can be experienced at the local level during drought periods (3). Furthermore, water quantity issues are prevalent in the drier shale-gas plays of the southwest and western United States (43). It is likely that water needs will change from these initial projections as the industry continues to improve and implement water reuse. Nevertheless, the understanding of flow variability—especially during drought conditions or in regions with already stressed water supplies—is necessary to develop best management practices for water withdrawal (44). It is also necessary to develop specific policies regarding when and where water withdrawals will be permitted in each region (45).

    After hydraulic fracturing, the pressure barriers such as frac plugs are removed, the wellhead valve is opened, and "flowback water" is collected at the wellhead. Once the well begins to produce gas, this water is referred to as "produced water" and is recovered throughout the life of the well. Flowback and produced waters are a mixture of injected fluids and water that was originally present in the target or surrounding formations (formation water) (42, 46–50). The fraction of the volume of injected water that is recovered as flowback water from horizontal wells in Pennsylvania ranges from 9 to 53% (9, 41), with an average of 10%. It has been observed that the recovery can be even lower than 10% if the well is shut-in for a period of time (51). The well is shut-in—or maintained closed between fracturing and gas production—so as to allow the gas to move from the shale matrix into the new fractures. Two of the key unanswered questions is what happens to the fracturing fluid that is not recovered during the flowback period, and whether this fluid could eventually contaminate drinking water aquifers (23, 33, 34, 52–54). The analyses of Marcellus Shale well logs indicate that the low-permeability shale contains very little free water (55, 56), and much of the hydraulic fracturing fluid may imbibe (absorb) into the shale.

    Fracturing fluid could migrate along abandoned and improperly plugged oil and gas wells, through an inadequately sealed annulus between the wellbore and casing or through natural or induced fractures outside the target formation. Indeed, out-of-formation fractures have been documented to extend as much as ~460 m above the top of some hydraulically fractured shales (57), but still ~1.6 km or more below freshwater aquifers. Nonetheless, on the basis of the study of 233 drinking-water wells across the shale-gas region of rural Pennsylvania, Boyer et al. (33) reported no major influences from gas well drilling or hydrofracturing on nearby water wells. Compared with the pre-drilling data reported in that study, only one well showed changes in water quality (salt concentration). These changes were noticed within days after a well was hydrofractured less than ~460 m away, but none of the analytes exceeded the standards of the U.S. Safe Drinking Water Act, and nearly all the parameters approached pre-drilling concentrations within 10 months.

    In the case of methane contamination in groundwater near Dimock, Pennsylvania, contamination by saline flowback brines or fracturing fluids was not observed (20). One early U.S. Environmental Protection Agency (EPA) report (54) suggested that a vertically fractured well in Jackson County, West Virginia, may have contaminated a local water well with gel from fracturing fluid. This vertical well was fractured at a depth of just ~1220 m, and four old natural gas wells nearby may have served as conduits for upward contaminant transport. A recent EPA study (53) implicated gas production wells in the contamination of deep groundwater resources near Pavillion, Wyoming. However, resampling of the monitoring wells by the USGS showed that the flowrate was too small to lend confidence to water-quality interpretations of one well, leaving data from only one other well to interpret with respect to contamination, and regulators are still studying the data (58). The Pavillion gas field consists of 169 production wells into a sandstone (not shale) formation and is unusual in that fracturing was completed as shallow as 372 m below ground. In addition, surface casings of gas wells are as shallow as 110 m below ground, whereas the domestic and stock wells in the area are screened as deep as 244 m below ground. The risk for direct contaminant transport from gas wells to drinking-water wells increases dramatically with a decrease in vertical distance between the gas well and the aquifer.

    A recent study applied a groundwater transport model to estimate the risk of groundwater contamination with hydraulic fracturing fluid by using pressure changes reported for gas wells (52). The study concluded that changes induced by hydraulic fracturing could allow advective transport of fracturing fluid to groundwater aquifers in <10 years. The model includes numerous simplifications that compromise its conclusions (59). For example, the model is based on the assumption of hydraulic conductivity that reflects water-filled voids in the geological formations, and yet many of the shale and overburden formations are not water-saturated (60). Hence, the actual hydraulic conductivity in the field could be orders of magnitude lower than that assumed in the study (59). Furthermore, although deep joint sets or fractures exist (14), the assumption of preexisting1500-m long vertical fractures is hypothetical and not based on geologic exploration. Hence, there is a need to establish realistic flow models that take into account heterogeneity in formations above the Marcellus Shale and realistic hydraulic conductivities and fracturing conditions.

    Last, it has long been known (14, 34, 47, 48, 61, 62) that groundwater is salinized where deeper ancient salt formations are present within sedimentary basins, including basins with shale gas. Where these brines are present at relatively shallow depths, such as in much of the northeastern and southwestern United States and Michigan, brines sometimes seep to the surface naturally and are unrelated to hydraulic fracturing. An important research thrust should focus on understanding these natural brine transport pathways to determine whether they could represent potential risk for contamination of aquifers because of hydraulic fracturing.

    Appropriate Wastewater Management Options

    The flowback and produced water from the Marcellus Shale is the second saltiest (63) and most radiogenic (50) of all sedimentary basins in the United States where large volume hydraulic fracturing is used. The average amount of natural gas-related wastewater in Pennsylvania during 2008 to 2011 was 26 million barrels per year (a fourfold increase compared with pre-Marcellus period) (64). Compared with conventional shallow wells, Marcellus Shale wells generate one third of the wastewater per unit volume of gas produced (65). However, the wastewater associated with Marcellus development in 2010 and 2011 accounted for 68 and 79%, respectfully, of the total oil and gas wastewater requiring management in Pennsylvania. Flowback/produced water is typically impounded at the surface for subsequent disposal, treatment, or reuse. Because of the large water volume, high concentration of dissolved solids, and complex physical-chemical composition of this wastewater, which includes organic and radioactive components, the public is becoming increasingly concerned about management of this water and the potential for human health and environmental impacts associated with the release of untreated or inadequately treated wastewater to the environment (66). In addition, spills from surface impoundments (14) and trucks or infiltration to groundwater though failed liners are potential pathways for surface and groundwater contamination by this wastewater.

    Treatment technologies and management strategies for this wastewater are constrained by regulations, economics of implementation, technology performance, geologic setting, and final disposal alternatives (67). The majority of wastewater from oil and gas production in the United States is disposed of effectively by deep underground injection (68). However, the state of Pennsylvania has only five operating Class II disposal wells. Although underground injection disposal wells will likely increase in number in Pennsylvania, shale gas development is currently occurring in many areas where Class II disposal wells will not be readily available. Moreover, permissions for and construction of new disposal wells is complex, time-consuming, and costly. Disposal of Pennsylvania brines in Ohio and West Virginia is ongoing but limited by high transportation costs.

    The lack of disposal well capacity in Pennsylvania is compounded by rare induced low-magnitude seismic events at disposal wells in other locations (69–71). It is likely that the disposal of wastewater by deep-well injection will not be a sustainable solution across much of Pennsylvania. Nonetheless, between 1982 and 1984, Texas reported at most ~100 cases of confirmed contamination of groundwater from oilfield injection wells, saltwater pits, and abandoned wells, even though at that time the state hosted more than 50,000 injection wells associated with oil and gas (72). Most problems were associated with small, independent operators. The ubiquity of wells and relative lack of problems with respect to brine disposal in Texas is one likely explanation why public pushback against hydraulic fracturing is more limited in Texas as compared with the northeastern United States.

    Another reason for public pushback in the northeast may be that in the early stages of Marcellus Shale development, particularly in 2008 to 2009, flowback/produced water was discharged and diluted into publicly owned treatment works (POTWs, or municipal wastewater treatment plants) under permit. This practice was the major pathway for water contamination because these POTWs are not designed to treat total dissolved solids (TDS), and the majority of TDS passed directly into the receiving waterways (6, 73), resulting in increased salt loading in Pennsylvania rivers, especially during low flow (74). In response, the Pennsylvania DEP introduced discharge limits to eliminate disposal of Marcellus Shale wastewater to POTWs (75). In early 2010, there were 17 centralized waste treatment plants (CWTs) in Pennsylvania that were exempted from the TDS discharge limits. However, according to Pennsylvania DEP records none of these CWTs reported to be currently receiving Marcellus wastewater, although they may receive produced water from conventional gas wells. Nevertheless, the TDS load to surface waters from flowback/produced water increased from ~230,000 kg/day in 2006 to 350,000 kg/day in 2011 (64).

    It is difficult to determine whether shale gas extraction in the Appalachian region since 2006 has affected water quality regionally, because baseline conditions are often unknown or have already been affected by other activities, such as coal mining. Although high concentrations of Na, Ca, and Cl will be the most likely ions detected if flowback or produced waters leaked into waterways, these salts can also originate from many other sources (76). In contrast, Sr, Ba, and Br are highly specific signatures of flowback and produced waters (34, 47). Ba is of particular interest in Pennsylvania waters in that it can be high in sulfate-poor flowback/produced waters but low in sulfate-containing coal-mine drainage. Likewise, the ratio of 87Sr/86Sr may be an isotopic fingerprint of Marcellus Shale waters (34, 77).

    Targeting some of these "fingerprint" contaminants, the Pennsylvania DEP began a new monitoring program in 2011. Samples are collected from pristine watersheds as well as from streams near CWT discharges and shale-gas drilling. The Shale Network is collating these measurements with high-quality data from citizen scientists, the USGS, the EPA, and other entities in order to assess potential water quality impacts in the northeast (78, 79). Before 2003, mean concentrations in Pennsylvania surface waters in counties with unconventional shale-gas development were 27 ± 32, 550 ± 620, and 72 ± 81 μg/L for Ba, Sr, and Br (±1σ), respectively (Fig. 4). Most values more than 3σ above the mean concentrations since 2003 represent samples from areas of known brine effluents from CWTs. A concern has been raised over bromide levels in the Allegheny River watershed that may derive from active CWTs because of health effects associated with disinfection by-products formed as a result of bromide in drinking water sources (64, 80). Given the current regulatory climate and the fact that the majority of dissolved solids passes through these CWTs, it is expected that these treatment facilities will likely not play a major role in Marcellus Shale wastewater management.

    Fig. 4 Concentrations of three ions in surface waters of Pennsylvania in counties with unconventional shale-gas wells: (A) barium, (B) strontium, and (C) bromide.

    Data reported by EPA (STORET data), USGS (NWIS data), Susquehanna River Basin Commission, Appalachian Geological Consulting and ALLARM [from Shale Network database (78, 79)], and from the Pennsylvania DEP (SAC046) include all rivers, streams, ponds, groundwater drains, lysimeter waters, and mine-associated pit, seep, and discharge waters accessed by using HydroDesktop (www.cuahsi.org) in the relevant counties (data before 2009 for bromide are not shown). Lines indicate 3σ above the mean of data from 1960 to 2003 for the longest duration dataset (USGS). Most values above the lines since 2003 represent targeted sampling in areas of known brine effluents from conventional oil and gas wells (such as Blacklick Creek receiving brine effluent from a CWT). The highest plotted Ba concentration was measured in Salt Springs in northern Pennsylvania. Three of the four samples with highest Sr and Br are from Blacklick Creek; next highest is from Salt Springs. Original values reported beneath the detection limit are plotted at that limit (10 to 100 μg Sr/L; 10 μg Ba/L; and 10 to 200 μg/L Br). The EPA maximum contaminant level (MCL) for Ba is 2000 μg/L. EPA reports no MCL for Sr or Br. Lifetime and 1-day health advisory levels for Sr are 4000 and 25000 μg/L, respectively, and a level under consideration for Br is 6000 μg/L.

    The dominant wastewater management practice in the Marcellus Shale region nowadays is wastewater reuse for hydraulic fracturing [a review of Pennsylvania DEP data for the first 6 months of 2012 indicates 90% reuse rate (81)]. Wastewater is impounded at the surface and used directly, or after dilution or pretreatment. Reuse of wastewater minimizes the volume that must be treated and disposed, thus reducing environmental control costs and risks and enhancing the economic feasibility of shale-gas extraction (67). Currently, operators in the Marcellus region do not fully agree about the quality of wastewater that must be attained for reuse. Major concerns include possible precipitation of BaSO4 and, to a lesser extent, SrSO4 and CaCO3 in the shale formation and the wellbore and the compatibility of wastewater with chemicals that are added to the fracturing fluid (such as friction reducers and viscosity modifiers). Hence, a better understanding of chemical compatibility issues would greatly improve the ability to reuse wastewater and minimize disposal volumes. In addition, radioactive radium that is commonly present in flowback/produced water will likely be incorporated in the solids that form in the wastewater treatment process and could yield a low-concentration radioactive waste that must be handled appropriately and has potential on-site human health implications.

    The wastewater reuse program represents a somewhat temporary solution to wastewater management problems in any shale play. This program works only as long as there is net water consumption in a given well field. As the well field matures and the rate of hydraulic fracturing diminishes, the field becomes a net water producer because the volume of produced water will exceed the amount of water needed for hydraulic fracturing operations (82, 83). It is not yet clear how long it will take to reach that point in the Marcellus region, but it is clear that there is a need to develop additional technical solutions (such as effective and economical approaches for separation and use of dissolved salts from produced water and treatment for naturally occurring radioactive material) that would allow continued development of this important natural resource in an environmentally responsible manner. Considering very high salinity of many produced waters from shale gas development, this is truly a formidable challenge. Research focused on better understanding of where the salt comes from and how hydrofracturing might be designed to minimize salt return to the land surface would be highly beneficial.

    Conclusions

    Since the advent of hydraulic fracturing, more than 1 million hydraulic fracturing treatments have been conducted, with perhaps only one documented case of direct groundwater pollution resulting from injection of hydraulic fracturing chemicals used for shale gas extraction (54). Impacts from casing leakage, well blowouts, and spills of contaminated fluids are more prevalent but have generally been quickly mitigated (17). However, confidentiality requirements dictated by legal investigations, combined with the expedited rate of development and the limited funding for research, are substantial impediments to peer-reviewed research into environmental impacts. Furthermore, gas wells are often spaced closely within small areas and could result in cumulative impacts (5) that develop so slowly that they are hard to measure.

    The public and government officials are continuing to raise questions and focus their attention on the issue of the exact composition of the hydrofracturing fluid used in shale formations. In 2010, the U.S. House of Representatives directed the EPA to conduct a study of hydraulic fracturing and its impact on drinking-water resources. This study will add important information to account for the fate of hydraulic fracturing fluid injected into the gas-bearing formation. It is well known that a large portion (as much as 90%) of injected fluid is not recovered during the flowback period, and it is important to document potential transport pathways and ultimate disposition of the injected fluid. The development of predictive methods to accurately account for the entire fluid volume based on detailed geophysical and geochemical characteristics of the formation would allow for the better design of gas wells and hydraulic fracturing technology, which would undoubtedly help alleviate public concerns. Research is also needed to optimize water management strategies for effective gas extraction. In addition, the impact of abandoned oil and gas wells on both fluid and gas migration is a concern that has not yet been adequately addressed.

    Gas migration received considerable attention in recent years, especially in certain parts of the Appalachian basin (such as northeast Pennsylvania). It has been known for a long time that methane migrates from the subsurface (such as coal seams, glacial till, and black shales), and the ability to ignite methane in groundwater from private wells was reported long before the recent development of the Marcellus Shale (14). However, in the absence of reliable baseline information, it is easy to blame any such incidents on gas extraction activities. It is therefore critical to establish baseline conditions before drilling and to use multiple lines of evidence to better understand gas migration. It is also important to improve drilling and cementing practices, especially through gas-bearing formations, in order to eliminate this potential pathway for methane migration.

    Water management for unconventional shale gas extraction is one of the key issues that will dominate environmental debate surrounding the gas industry. Reuse of flowback and produced water for hydraulic fracturing is currently addressing the concerns regarding the vast salt quantities that are brought to the surface (each Marcellus well generates as much as 200 tons of salt during the flowback period). However, there is a need for comprehensive risk assessment and regulatory oversight for spills and other accidental discharges of wastewater to the environment. As these well fields mature and the opportunities for wastewater reuse diminish, the need to find alternative management strategies for this wastewater will likely intensify. Now is the time to work on these issues in order to avoid an adverse environmental legacy similar to that from abandoned coal mine discharges in Pennsylvania.

    References and Notes
  • S. Holditch, K. Perry, J. Lee, "Unconventional Gas Reservoirs—Tight Gas, Coal Seams, and Shales, Working Document of the National Petroleum Council on Global Oil and Gas Study" (National Petroleum Council, 2007).

  • S. M. Olmstead, L. A. Muehlenbachs, J.-S. Shih, Z. Chu, A. J. Krupnick, Proc. Natl. Acad. Sci. U.S.A., published online 11 March 2013.10.1073/pnas.1213871110doi:10.1073/pnas.1213871110

  • U.S. House of Representatives Committee of Energy and Commerce Minority Staff, "Chemicals used in Hydraulic Fracturing" (prepared for H. A. Waxman, E. J. Markey, D. DeGette, 2011).

  • Energy Information Administration, Drilling Sideways–A Review of Horizontal Well Technology and Its Domestic Application, DOE/EIA-TR-0565 (U.S. Department of Energy, Washington, DC, 1993).

  • NYS DEC, "Draft Supplemental Generic Environmental Impact Statement on the Oil, Gas and Solution Mining Regulatory Program, Well Permit Issuance for Horizontal Drilling And High-Volume Hydraulic Fracturing to Develop the Marcellus Shale and Other Low-Permeability Gas Reservoirs" (New York State Department of Environmental Conservation, 2009).

  • K. K. Eltschlager, J. W. Hawkins, W. C. Ehler, F. J. Baldassare, "Technical measures for the investigation and mitigation of fugitive methane hazards in areas of coal mining" (U.S. Dept. of the Interior, Office of Surface Mining Reclamation and Enforcement, Pittsburgh, PA, 2001).

  • T. Considine, R. Watson, N. Considine, J. Martin, "Environmental Impacts during Marcellus Shale Gas Drilling: Causes, Impacts, and Remedies, Report 2012-1" (Shale Resources and Society Institute, State University of New York, Buffalo, 2012).

  • ↵ Total count included violations 78.73A, 78.81D1 and D2, 78.83A and B, 78.83GRNDWTR, 78.83COALCSG, 78.84, 78.85, 78.86, and 207B. Wells with multiple violations were counted only once.
  • K. J. Breen, K. Revesz, F. J. Baldassare, S. D. McAuley, "Natural gases in ground water near Tioga Junction, Tioga County, North-central Pennsylvania–Occurrence and use of isotopes to determine origins, 2005" (U.S. Geological Survey, Scientific Investigations Report Series 2007-5085, 2007).

  • PA DEP, "Oil and Gas Well Drilling and Production in Pennsylvania" (Pennsylvania Department of Environmental Protection, PA DEP Fact Sheet, 2011).

  • W. R. Gough, B. A. Waite, in Water Resources in Pennsylvania: Availability, Quality, and Management, S. K. Majumdar, E. W. Miller, R. R. Parizek, Eds. (Pennsylvania Academy of Science, 1990), pp. 384–398.

  • IOGC, "Protecting our Country's Resources: The States’ Case, Orphaned Well Plugging Initiative" (Interstate Oil and Gas Compact Commission, National Energy Technology Laboratory, 2008).

  • T. M. Kresse et al., U.S.G.S. Scientific Investigations Report 2012-5273 (2012).

  • V. Gonzalo, B. Aiskely, C. Alicia, in SPE Latin American and Caribbean Petroleum Engineering Conference, Society of Petroleum Engineers International (Rio de Janeiro, Brazil, 2005).

  • M. J. Rogers, R. L. Dillenbeck, R. N. Eid, Society of Petroleum Engineers, 90829 (2004).

  • M. B. Dusseault, M. N. Gray, Society of Petroleum Engineers, 64733 (2000).

  • J. M. Tinsley, E. C. Miller, D. L. Sutton, Society of Petroleum Engineers, 8257 (1979).

  • T. D. Hayes, "Marcellus Shale water chemistry" (Appalachian Shale Water Conservation and Management Committee, 2009).

  • D. Soeder, W. M. Kappell, "Water resources and natural gas production from the Marcellus Shale" (U.S. Geological Survey Fact Sheet 2009-3032, Reston, VA, 2009).

  • M. E. Blauch, R. R. Myers, T. R. Moore, B. A. Lipinski, N. A. Houston, paper presented at the SPE Eastern Regional Meeting, Society of Petroleum Engineers SPE 125740, Charleston, WV, 2009.

  • E. L. Rowan, M. A. Engle, C. S. Kirby, T. F. Kraemer, "Radium content of oil- and gas-field produced waters in the Northern Appalachian Basin (USA): Summary and discussion of data" (U.S. Geological Survey, Scientific Investigation Report 2011-5135, 2011).

  • M. E. Mantell, in EPA Hydraulic Fracturing Study Technical Workshop 4. Water Resources Management, Chesapeake Energy (Oklahoma City, OK, 2011).

  • D. C. DiGiulio, R. T. Wilkin, C. Miller, G. Oberly, "DRAFT: Investigation of Ground Water Contamination near Pavillion, Wyoming" (U.S. Environmental Prodection Agency Office of Research and Development, 2011).

  • U.S. Environmental Protection Agency, "Report to Congress: Management of wastes from the exploration, development, and production of crude oil, natural gas, and geothermal energy" (U.S. Environmental Protection Agency, Washington, DC, 1987).

  • K. R. Bruner, R. A. Smosna, "Comparative study of the Mississippian Barnett Shale, Fort Worth Basin, and Devonian Marcellus Shale, Appalachian Basin, DOE/NETL-2011/1478" (Department of Energy, National Energy Technology Laboratory, 2011).

  • J. A. Williams, U.S. Geological Survey Scientific Investigations Report 2010-5224 (2010).

  • C. E. Clark, J. A. Veil, "Produced Water Volumes and Management Practices in the United States, ANL/EVS/R-09/1" (Environmental Science Division, Argonne National Laboratory, 2009).

  • C. J. de Pater, S. Baisch, "Geomechanical study of Bowland Shale seismicity, Synthesis Report" (Cuadrilla Resources, Ltd., 2011).

  • Reuters, "Ohio earthquake was not a natural event, expert says," Reuters, 2012.

  • National Academy of Sciences, Induced Seismicity Potential in Energy Technologies (National Academies Press, Washington, DC, 2012).

  • Texas Department of Agriculture, "Agricultural Land and Water Contamination from Injection Wells, Disposal Pits, and Abandoned Wells Used in Oil and Gas Production" (TX Department of Agriculture, Department of Natural Resources, 1985).

  • PA DEP, "Wastewater Treatment Requirements, 25 PA Code 95" (Pennsylvania Department of Environmental Protection, 2010).

  • J. R. Mullaney, D. L. Lorenz, A. D. Arntson, "Chloride in Groundwater and Surface Water in Areas Underlain by the Glacial Aquifer System, Northern United States" (U.S. Department of the Interior, U.S. Geological Survey, Scientific Investigations Report 2009-5086, 2009).

  • S. States et al., paper presented at the AWWA-WQTC, Phoenix, AZ, November 13 to 17, 2011.

  • C. Kuijvenhoven et al., paper presented at the Shale Gas Water Management Conference, Dallas, TX, November 30 to December 1, 2011.

  • R. D. Vidic, T. D. Hayes, S. Hughes, in Shale Gas Water Management Marcellus Initiative (Pittsburgh, PA, 2011).

  • J. S. White, M. V. Mathes, "Dissolved-gas concentrations in ground water in West Virginia" (U.S. Geological Survey Data Series 156, 2006).

  • Acknowledgments: R.D.V., S.L.B., D.Y., and J.D.A. acknowledge funding for the Shale Network from NSF grant OCE-11-40159.


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