Fracking regulations

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Federal regulations

History

According to a 2008 report by ProPublica:[1]

The EPA began preparing its report on hydraulic fracturing and the Safe Drinking Water Act in 2000, after an Alabama court forced the agency to investigate fracturing-related water contamination there under the Act. While the EPA was still working on its report, legislation was being crafted to exempt hydraulic fracturing from the Safe Drinking Water Act. To lessen the pressure on the report's findings, the EPA sought an agreement with the three largest hydraulic fracturing companies, including Halliburton, to stop using diesel fuel in fracturing fluids.

The EPA released its study in 2004, and was later criticized. One of the report’s three main authors, Jeffrey Jollie, an EPA hydrogeologist, cautioned that the research had been misconstrued by industry. The study focused solely on the effect hydraulic fracturing has on drinking water in coal bed methane deposits, typically shallow formations where gas is embedded in coal. It did not consider the impact of above-ground drilling or of drilling in geologic formations deep underground, where many of the large new gas reserves are being developed.

Further, buried within the 424-page report are statements explaining that fluids migrated unpredictably -- through different rock layers, and to greater distances than previously thought -- in as many as half the cases studied in the United States. The EPA identified some of the chemicals as biocides and lubricants that “can cause kidney, liver, heart, blood, and brain damage through prolonged or repeated exposure." It found that as much as a third of injected fluids, benzene in particular, remains in the ground after drilling and is “likely to be transported by groundwater."

A few months after the report’s release, the 2005 Energy Policy Act was passed, exempting the practice of fracking from the Safe Drinking Water Act, based in part on the EPA study, leaving regulation to states.

Exemptions

As of 2012, the hydraulic fracturing process itself is exempt from seven major federal regulations:[2]

FracFocus

FracFocus is an industry fracking disclosure site, where companies report drilling practices. In April 2013 a study by a new Harvard University policy initiative stated that "the FracFocus.org website has "serious flaws" as a means of disclosure for hydraulic fracturing chemicals used in oil and gas production, and state governments shouldn't be relying on it." The study went on to say that FracFocus's one-size-fits-all approach does not account for "different state requirements and prevents many kinds of searching and gives drilling companies too much leeway to miss deadlines or withhold information as trade secrets."[3]

Fracking wastewater regulations

The Clean Water Act

The federal Clean Water Act regulates the treatment and discharge of shale gas wastewater into surface water bodies.[4] Under the Act, facilities must obtain permits if they intend to discharge shale gas wastewater or any of its by-products into a surface water body. These permits contain limitations on pollutants that may be discharged in the wastewater.[5]

Federal regulations prohibit the direct discharge of wastewater pollutants from natural gas production. Many hydraulic fracturing operators therefore send wastewater to treatment facilities that are authorized to discharge under Clean Water Act permits issued by the states under authority delegated by the EPA. A 2012 NRDC report note that "the Clean Water Act regulatory program is not comprehensive; for example, there are no pretreatment requirements specifically for shale gas wastewater, and discharge standards are out of date," allowing for discharge of pollutants "in amounts and concentrations inadequate to protect water quality."[5]

States may also establish requirements for the discharges that are stricter than the federal standards.[5]

On March 14, 2013 Congressman Matt Cartwright (PA) and Congressman Jared Polis (CO) introduced two bills in the U.S. House of Representatives to close loopholes in the Clean Air Act and Clean Water Act for fracking operations. he two bills introduced today—titled the “Bringing Reductions to Energy’s Airborne Toxic Health Effects”, or BREATHE Act, and the “Focused Reduction of Effluence and Stormwater runoff through Hydrofracking Environmental Regulation,” or FRESHER Act.

Specifically, the BREATHE Act, introduced by the two Congressmen and at least 32 co-sponsors, would close a loophole in the Clean Air Act that currently allows the oil and gas industry to release large amounts of pollution into the air, and lists hydrogen sulfide as a hazardous air pollutant. The FRESHER Act, introduced by Congressmen Cartwright and Polis and at least 37 co-sponsors, would close a loophole in the Clean Water Act that exempts the oil and gas industry from permitting requirements for industrial stormwater runoff.[6]

Safe Drinking Water Act

The federal Safe Drinking Water Act (SDWA) regulates the underground injection of wastewater. Renee Lewis Kosnik,[7] Oil and Gas Accountability Project, 2007 Report.All underground injections are prohibited unless authorized under this program. Under the program, the EPA groups underground injection wells into five classes, with each class subject to distinct requirements and standards. Because of a regulatory determination by the EPA not to classify shale gas wastewater as “hazardous”, it is not required to be injected into Class I wells for hazardous waste, and is therefore often injected into Class II wells, which are subject to less stringent requirements than Class I hazardous waste wells. Either states or the federal EPA can take primacy in overseeing the program.[5]

The injection of fluids for the actual hydraulic fracturing process itself is exempted from federal regulation under the Safe Drinking Water Act. Therefore, if shale gas wastewater is managed or treated for the sole purpose of reuse for further hydraulic fracturing, it is not subject to federal regulation, although states can have their own regulations that apply to the reuse of shale gas wastewater.[5]

Resource Conservation and Recovery Act

Oil and gas wastes are currently exempt from the federal Resource Conservation and Recovery Act (RCRA),[8] which generally regulates the handling and disposal of waste. Due to this exemption, natural gas operators transporting shale gas wastewater are not considered to be transporting or receiving “hazardous” wastes, and thus do not need to meet the cradle-to-grave safeguards established by RCRA regulations. In the absence of federal regulations, states regulate the handling, storage, and transport of shale gas wastewater, including residuals.[5]

Some states allow for the storage or disposal of shale gas wastewater in open impoundments. There has been struggles about the power of states versus municipalities regarding fracking waste storage: Pennsylvania's Act 13, for example, limits the ability of municipalities to enact their own regulations regarding the siting of impoundments; several municipalities are challenging the law in court.[5]

The land application of shale gas wastewater is also regulated primarily at the state level. Some states, such as Pennsylvania, issue permits authorizing land application of fracking waste, such as for roadway prewetting, anti-icing, and deicing purposes, as long as the brines meet certain pollutant concentration limits. In some other states, however, the road spreading of shale gas wastewater is prohibited.[5]

Proposed federal regulations

Air pollutants

The Environmental Protection Agency (EPA) is finalizing air pollution standards for natural-gas drilling. The standards were proposed in summer 2012,[9] issued on April 18, 2012, and will be fully effective in January 2015.[9]

The rules would require all new and any modified wells to use equipment to capture fumes that escape in the production and processing of natural gas (it will not apply to existing wells not undergoing modification, millions of old wells that may leak, or transmission and distribution pipelines). Fumes to be captured include methane, a potent GHG and the main component of natural gas, and volatile organic compounds, which contribute to ground-level ozone (smog). The regulations will also limit emissions from compressors, oil storage tanks and other oil-and-gas sector equipment.

Complying with the mandates is projected to lower methane emissions by about 26 percent and toxic air emissions by 30 percent,[10] saving the gas industry $11 million to $19 million a year because drillers would be able to capture and sell the methane that is currently being burned off, or flared.[9]

The air pollution rules include a requirement that oil and gas companies notify the U.S. EPA at least two days before they "frack" a well, which became effective on October 8, 2012.[11]

The underlying emissions rules for gas drilling operations were last modified in 1985, and they apply only to leak detection at new and upgraded gas processing plants.[12]

Condensate tanks

For condensate tanks present on the well pads after hydraulic fracturing, 2012 EPA restrictions required gas companies to reduce the amount of Volatile Organic Compounds and cancer-causing chemicals like benzene up to 95 percent by October 15, 2013. In August 2013 the EPA extended the deadline for compliance to April 15, 2015, and loosened the 95 percent reduction requirement to allow for operators to go without emission control equipment as long as the emissions are under four tons per year.[13]

Carbon dioxide emissions

On March 27, 2012, the EPA released its new rule limiting CO2 emissions from future electricity generating plants in the U.S., which proposes that new plants emit no more than 454 kilograms of CO2 per megawatt‐hour. It would go into effect in 2013. Science concluded that the cap is unlikely to have much impact on power plants fueled by natural gas: "Nearly all gas-fired power plants built in the U.S. since 2005 would already meet the standard, according to EPA, as would typical gas plants on the drawing boards."[14] The proposed rules have been delayed for release until June 2015.[15]

Various reports and studies have concluded that the reduced CO2 emissions at gas plants will be negated if methane leakage during the gas production life cycle is not minimized.[16][17][18][19] The Environmental Defense Fund (EDF) has calculated that methane venting of 3.2 percent represents a crucial threshold - beyond that it found new combined cycle gas power plants no longer provide greenhouse gas benefits over new coal plants.[20]

Diesel fuels

In May 2012, the Environmental Protection Agency released draft underground injection control program permitting guidance for Class II wells that use diesel fuels during hydraulic fracturing activities. EPA developed the draft guidance to clarify how companies can comply with a law passed by Congress in 2005, which exempted hydraulic fracturing operations from the requirement to obtain a UIC permit, except in cases where diesel fuel is used as a fracturing fluid. While the guidance undergoes public notice and comment, decisions about permitting hydraulic fracturing operations that use diesel fuels will be made on a case-by-case basis.[21]

Fracking and public lands

On May 4, 2012 the Obama administration announced proposed federal rules that will require companies to disclose the chemicals used during their fracking process after they finish operations. The rules will also strengthen well-bore integrity and address issues related to flowback water. The regulations would only account for the natural gas and oil deposits located on BLM land, which is considered a "sliver" of total lands where fracking occurs.[22][23][24] The rules would allow limited exemptions on chemical disclosure for “legitimate trade secrets.”[25]

In January 2013, the Interior Department restarted the process, announcing it was drafting a new proposal. The new language incorporated several industry requests, including: exempting acidizing, a process similar to fracturing that is used in California's Monterey Shale; making it easier to withhold fracturing fluid ingredients as trade secrets; and adopting the industry-backed FracFocus website for disclosure of chemicals. According to an EnergyWire review of White House visitor records, President Obama's top energy adviser Heather Zichal met more than 20 times in 2012 with industry groups and company executives lobbying on the proposed BLM rule, including the American Petroleum Institute (API), BP, Devon Energy, and ExxonMobil.[26]

In May 2013 the BLM published new draft rules weaker than those proposed in 2012. According to the NRDC:[27]

  • The rules would only cover fracking and not other "well stimulation" techniques, which will continue to be covered by existing rules that the Department of the Interior has called “outdated";
  • Rather than requiring companies to submit information ensuring a well will be adequate and drinking water protected, the proposal would allow companies to submit results from another well the company deems similar, and can be submitted after fracking;
  • It would allow companies to determine which chemicals it uses are "trade secrets" and keep that information confidential without oversight by the BLM;
  • Companies would disclose information on chemicals used on FracFocus.org, an industry-funded website that restricts access to data and is not subject to federal freedom of information requirements;
  • The new proposal allows BLM discretion to exempt states from the new rules if the BLM determines that a state’s rules are adequate.

Final federal rules are expected in late 2013.

Regulatory Enforcement

The 2012 Earthworks Action report, "Breaking All the Rules: The Crisis in Oil & Gas Regulatory Enforcement," examined enforcement data and practices in Pennsylvania, Texas, Ohio, New York, New Mexico, and Colorado. The study found that more than half of wells go uninspected each year, adding up to hundreds of thousands of active oil and gas wells; companies that are found in violation are rarely penalized; and penalties are so weak that it is cheaper for violators to pay the penalty than comply with the law: the total value of financial penalties in each state studied is less than or equivalent to the value of the gas contained in one single well.

Pipeline Inspections

About 10 percent of the pipelines carrying natural gas or other hazardous chemicals used in the fracking process fall under federal regulatory auspices.[28]

The 2012 Government Accountability Office, "Collecting Data and Sharing Information on Federally Unregulated Gathering Pipelines Could Help Enhance Safety," estimates 240,000 miles of U.S. gas/oil pipeline are not regulated by the U.S. Pipeline and Hazardous Materials Safety Administration, as the federal agency does not oversee pipeline that is not within 220 yards of at least 10 homes. Much of the pipeline going through more rural areas has never been seen by any federal, state, or local inspectors.[29]

For pipeline that is not regulated, natural gas and oil companies using the pipelines are not required to report any accidents, injuries, fatalities, or dangerous releases from them.[29]

State regulations

As of February 2012, only four of 31 fracking states have significant drilling rules, according to Environmental News Service.[30]

Disclosure rules

As of 2012, nine states and the U.S. Bureau of Land Management (for federal lands) have various chemical disclosure rules: Arkansas, Colorado, Louisiana, Michigan, Montana, Ohio, Pennsylvania, Texas, and Wyoming.

Most of the rules allow exclusions for "proprietary trade secrets," similar to "model legislation" crafted by ALEC and sponsored within ALEC by ExxonMobil, which runs a major oil and gas operation through its subsidiary, XTO Energy.[31] Colorado is the only state that requires detailed information on the names and concentrations of the individual chemicals used; the eight other states either do not require companies to report concentrations or only require them to report concentrations of hazardous materials.[32]

Environmental groups have petitioned the EPA for disclosure of fracturing chemicals through the Toxic Substances Control Act (TSCA).[33]

Many companies report the chemicals used through FracFocus, the industry's "hydraulic fracturing chemical registry website." A 2012 analysis of data by Bloomberg found that energy companies failed to list more than two out of every five fracked wells in eight U.S. states from April 11, 2011, when FracFocus began operating, through the end of 2011. The eight states were Arkansas, Colorado, Louisiana, Montana, Oklahoma, Texas, Utah, and Wyoming. Critics say the gaps reveal shortcomings in the voluntary approach to transparency on the site, which has received funding from oil and gas trade groups and $1.5 million from the Department of Energy.[34]

Oil and gas industry lobbying

According to OpenSecrets, the oil and gas industry had 786 registered lobbyists in 2011 that spent $148 million on lobbying.[35]

Litigation

The law firm of Arnold & Porter maintains an extensive case chart of both anti-fracking and pro-fracking litigation: Hydraulic Fracturing. The chart includes the following categories of litigation:

  • Civil tort actions
  • Citizen suites
  • Government enforcement actions
  • FOIA lawsuits
  • Challenges to municipal bans
  • Challenges to agency actions
  • Challenges to state and federal laws and regulations
  • Oil & gas lease disputes
  • Other land use disputes
  • Defamation and SLAPP suits

Resources

References

  1. Abraham Lustgarten, "Buried Secrets: Is Natural Gas Drilling Endangering U.S. Water Supplies?" ProPublica, Nov. 13, 2008.
  2. Renee Lewis Kosnik, "The Oil and Gas Industry’s Exclusions and Exemptions to Major Environmental Statutes," Oil and Gas Accountability Project, 2007 Report.
  3. "HYDRAULIC FRACTURING: FracFocus has 'serious flaws,' Harvard study say" Mike Soraghan, "E&E Publishing Service", April 24, 2013.
  4. Renee Lewis Kosnik, "The Oil and Gas Industry’s Exclusions and Exemptions to Major Environmental Statutes," Oil and Gas Accountability Project, 2007 Report.
  5. 5.0 5.1 5.2 5.3 5.4 5.5 5.6 5.7 Rebecca Hammer, Jeanne VanBriesen, and Larry Levine, "In Fracking's Wake: New Rules are Needed to Protect Our Health and Environment from Contaminated Wastewater," Natural Resources Defense Council, May 2012 report.
  6. "FRESHER and BREATHE Acts Introduced to Close Fracking Loopholes" Water World, March 14, 2013.
  7. "The Oil and Gas Industry’s Exclusions and Exemptions to Major Environmental Statutes,"
  8. Renee Lewis Kosnik, "The Oil and Gas Industry’s Exclusions and Exemptions to Major Environmental Statutes," Oil and Gas Accountability Project, 2007 Report.
  9. 9.0 9.1 9.2 John Broder, "U.S. Caps Emissions in Drilling for Fuel," New York Times, April 18, 2012.
  10. Jennifer A. Dlouhy, "Industry asks for more time to comply with drilling pollution mandates," Fuel Fix, April , 2012.
  11. Mike Soraghan, "Drillers suspicious of EPA's new frack notification," E&E, October 9, 2012.
  12. Andrew Restuccia, "Greens blast industry 'misinformation' on EPA 'fracking' rules," The Hill, April 9, 2012.
  13. Alexander Lotorto, "New EPA Administrator Gina McCarthy Loosens Frack Tank Rules," We Are Power Shift, Aug 6, 2013.
  14. David Malakoff, "Imposing a Cap With Holes," Science, March 27, 2012.
  15. "Obama’s Climate Plan: A Historic Turning Point or Too Reliant on Oil, Coal, Natural Gas?" Democracy Now, June 26, 2013.
  16. "Greater focus needed on methane leakage from natural gas infrastructure," Proceedings of the National Academy of Sciences, February 2012.
  17. Nathan Myhrvold and Ken Caldeira, "Greenhouse gases, climate change and the transition from coal to low-carbon electricity," Environmental Review Letters 7 014019, February 2012.
  18. Robert W. Howarth, Renee Santoro, and Anthony Ingraffea, "Methane and the greenhouse-gas footprint of natural gas from shale formations: A letter," Climatic Change, March 2011.
  19. "Leaking Profits: The U.S. Oil and Gas Industry Can Reduce Pollution, Conserve Resources, and Make Money by Preventing Methane Waste," NRDC, March 2012.
  20. Peter Mantius, "'Frackademia' – MIT’s Ernest Moniz, Obama’s Top Candidate for Energy Secretary, Oversees Pro-Industry-Funded Research," DC Bureau, February 21, 2013.
  21. "EPA permits diesel fuel use in oil and gas hydraulic fracturing" Minot Daily News, May 6, 2012.
  22. "EPA's Fracking Rules Cover Only A Sliver Of Land" Huffington Post, Lena Groeger, May 9, 2012.
  23. "Obama proposes fracking companies disclose chemicals" Wendy Koch, USA Today, May 4, 2012.
  24. "Administration issues new fracking rules" Neela Banerjee, Los Angeles Times, April 4, 2012.
  25. Mark Drajem and Katarzyna Klimasinska, "Fracking Rules on U.S. Lands Seen by Interior as Model," Bloomberg, Feb. 2, 2012.
  26. Mike Soraghan "White House huddled with industry before changes to BLM fracking rule," E&E, April 12, 2013.
  27. Matthew McFeeley, "Obama Administration Caves To Fracking Industry in New Proposed Rules," NRDC, May 16, 2013.
  28. Government Accountability Office, "Collecting Data and Sharing Information on Federally Unregulated Gathering Pipelines Could Help Enhance Safety," GAO-12-388, March 22, 2012.
  29. 29.0 29.1 Government Accountability Office, "Collecting Data and Sharing Information on Federally Unregulated Gathering Pipelines Could Help Enhance Safety," GAO-12-388, March 22, 2012.
  30. Sharon Guynup, "The Fracking Industry Buys Congress," ENS, Feb. 16, 2012.
  31. Cora Currier, "ALEC and ExxonMobil Push Loopholes in Fracking Chemical Disclosure Rules," ProPublica, April 24, 2012.
  32. "Fracking Chemical Disclosure Rules," Inside Climate News chart at ProPublica, accessed April 2012.
  33. Mike Soraghan, "HYDRAULIC FRACTURING: White House delaying BLM rule at industry's request," E&E, June 22, 2012.
  34. "Fracking Hazards Obscured in Failure to Report Wells (New York)," Bloomberg News, Aug. 18, 2012.
  35. "Oil & Gas Industry Profile, 2011," OpenSecrets.org, accessed April 2012.

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