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"Fracking NY" Blog Series: Part 4 - Summary of Federal Regulations

So far in our blog series on "Fracking NY," we've presented a general background of the issues, a summary of the New York State Department of Environmental Conservation's ("DEC") Draft Revised SGEIS on fracking, and a summary of the DEC's proposed regulations for fracking. We now turn to discuss the federal regulation - or lack thereof - of this process for natural gas extraction in the U.S. 

So far in our blog series on "Fracking NY," we've presented a general background of the issues, a summary of the New York State Department of Environmental Conservation's ("DEC") Draft Revised SGEIS on fracking, and a summary of the DEC's proposed regulations for fracking. We now turn to discuss the federal regulation - or lack thereof - of this process for natural gas extraction in the U.S.

Lack of Federal Statutory Regulation

There are currently no federal laws regulating high-volume hydraulic fracturing (or "fracking"). The Energy Policy Act of 2005 removed the regulation of "underground injection of fluids . . .pursuant to hydraulic fracturing operations related to . . . gas . . . production activities" from the Safe Water Drinking Act ("SWDA"). Likewise, the Clean Water Act ("CWA"), the Clean Air Act ("CAA"), and the Resource Conservation and Recovery Act ("RCRA") do not specifically or directly regulate this type of drilling or extraction process.

The FRAC ACT

In June 2009, Representatives DeGette, Hinchey and Polis and Senators Casey and Schumer introduced the Fracking Responsibility and Awareness of Chemicals Act ("FRAC Act") (House Bill 2766; Senate Bill 1215) which would repeal the exemption for the regulation of fracking under the SWDA. The FRAC Act would also require companies to disclose to the EPA (or the State) the chemical constituents and "propping agents," which would be available to the public. As we mentioned in our previous posts, the industry fiercely guards many of these chemicals as protected "trade secrets." (Compare the FRAC Act with the New York State Department of Environmental Conservation's proposed rulemaking which would require disclosure of all chemicals to the State, but which would limit the public disclosure of such "protected" chemicals.)

The 111th Congress adjourned without taking any significant action on the FRAC Act. On March 15, 2011, the FRAC Act was re-introduced in the 112th Congress (House Bill 1084; Senate Bill 587), but again no significant action has been taken on it to-date.

EPA Fracking Study

Beginning in 2010, the U.S. Environmental Protection Agency ("EPA") was charged with undertaking a study of the practice of fracking to better understand any potential impacts of hydraulic fracturing on drinking water and groundwater. According to the EPA's hydraulic fracturing website:

The overall purpose of the study is to understand the relationship between hydraulic fracturing and drinking water resources. The scope of the proposed research includes the full lifespan of water in hydraulic fracturing, from acquisition of the water, through the mixing of chemicals and actual fracturing, to the post-fracturing stage, including the management of flowback and produced water and its ultimate treatment and disposal.

EPA, Water: Hydraulic Fracturing, http://water.epa.gov/type/groundwater/uic/class2/hydraulicfracturing/index.cfm (last visited Oct. 12, 2011).

The EPA's Study will consider retroactive and prospective case studies located in various locations across the country, and representing various shale formations, that EPA believes will provide the most useful information about the potential impacts of hydraulic fracturing on drinking water resources under a variety of circumstances. These locations include:

  • Haynesville Shale - DeSoto Parish, LA
  • Marcellus Shale - Washington County, PA
  • Bakken Shale - Killdeer and Dunn Counties, ND
  • Barnett Shale - Wise and Denton Counties, TX
  • Marcellus Shale - Bradford and Susquehanna Counties, PA
  • Raton Basin - Los Animas County, CO

In February 2011, EPA submitted its draft study plan for review to an independent board of scientists, known as the EPA's Science Advisory Board ("SAB"). The draft study plan was released after EPA held a series of public meetings across the country. The final report, entitled "Plan to Study the Potential Impacts of Hydraulic Fracturing on Drinking Water Resources," incorporates the comments by the public and the SAB and was finalized by EPA in November 2011. Initial results of the EPA's study are expected in 2012, with a final report to be issued in 2014.

EPA previously undertook a study, completed in 2004, of the threats to water supplies associated with the practice of using hydraulic fracturing for coal seams for methane (a/k/a "coal bed methane") production. The primary goal of the study was to assess the potential for fracking to contaminate underground drinking water supplies. The conclusion of this 2004 EPA study was that there was no "confirmed evidence that drinking water wells have been contaminated by hydraulic fracturing fluid injection," and that no further study was needed. (This report was challenged as being scientifically unsound by an EPA-whistleblower, and in 2005 the EPA investigated these assertions, but later dropped the investigation when the Energy Policy Act of 2005 exempted fracking from regulation under the SWDA.) Despite the findings of the 2004 study, EPA nevertheless reached an agreement with major service companies to voluntarily eliminate diesel fuel additives from the fracking fluids. Nothing further was done by the EPA to study the issue of the potential for fracking to contaminate underground drinking water supplies until 2010.

EPA Plans to Regulate Fracking Wastewater

On October 20, 2011, EPA announced that it will develop standards for wastewater discharges produced by natural gas extraction from underground coalbed and shale formations.

As described in our previous post, fracking operations generate millions of gallons of wastewater (a/k/a, "flowback" or "produced water") which are contaminated with the fracking chemicals and propping agents. Currently, there is no regulation that specificallymandates how or where operators dispose of this contaminated wastewater. The CWA prevents operators from discharging this contaminated wastewater directly into waterbodies, so many operators instead send this water to municipal water treatment plants, which are unable to treat the wastewater due to the sheer volume and chemical makeup of fracking wastewater. EPA's announcement that it intends to regulate disposal and treatment of fracking wastewater comes after Pennsylvania discouraged disposal through water treatment plants. EPA has stated that it will consider standards based on demonstrated, economically achievable technologies that must be met before going to a treatment facility.

EPA plans to issue a proposed rule for fracking wastewater from coalbed methane wells by 2013 and fracking wastewater from shale wells by 2014, which will then be subjected to a public comment and agency review period. Although EPA's goal for promulgating these standards within the next few years is laudable, we would be happily surprised if EPA could meet those deadlines due to the likelihood of litigation that we expect to follow EPA's promulgation of final fracking wastewater standards. Until then, as all other aspects of fracking, regulation of treatment and disposal of fracking wastewater will be left up to the states.

Leaving it up to the States. . .

In conclusion, the federal regulation of fracking in the U.S. is practically non-existent. This leaves the regulatory scheme open to the individual states, which could result in an inconsistent regulation of fracking and numerous legal battles, which are likely to benefit neither the industry nor the public and environmental health of the states.

***

Our next post in the "Fracking NY" blog series will discuss the proposed amendments to the Delaware River Basin Commission's Water Quality Regulations regarding the fracking operations within the Delaware River Basin. 

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